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CHEEKS v. COMMONWEALTH


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CHEEKS

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

OCTOBER 16, 2001

Record No. 1889-00-2

Present: Judges Benton, Frank and Clements

Argued at Richmond, Virginia

WILLIAM DAMOND CHEEKS

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

James B. Wilkinson, Judge

Carolyn V. Grady (Carolyn V. Grady, P.C., on
brief), for appellant.

Eugene Murphy, Assistant Attorney General (Mark
L. Earley, Attorney General, on brief), for appellee.


MEMORANDUM OPINION[1] BY JUDGE JEAN HARRISON CLEMENTS

William Damond Cheeks was convicted in a bench
trial of possession of cocaine with intent to distribute in
violation of Code Sect. 18.2-248, possession of a firearm
while possessing cocaine in violation of Code
Sect. 18.2-308.4, and possession of a firearm by a convicted
felon in violation of Code Sect. 18.2-308.2. On appeal, he
contends the trial court erred in denying his motion to suppress
the gun and cocaine because they were the products of a seizure
that violated his Fourth Amendment rights. We agree and reverse
the convictions.

As the parties are fully conversant with the
record in this case and because this memorandum opinion carries
no precedential value, this opinion recites only those facts and
incidents of the proceedings as necessary to the parties’
understanding of the disposition of this appeal.

I. BACKGROUND

Viewed in the light most favorable to the
Commonwealth, the party prevailing below, see Commonwealth
v. Grimstead
, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48
(1991), the evidence established that, on April 6, 2000, Richmond
City Police Officer Fred Bates was on patrol when he received a
radio call that a man had hit a woman in the knee with the butt
of a gun in the 3400 block of Semmes Avenue. The call reported
that the suspect’s last name was "Cheeks" and that he
had run into Antonz’s Barbershop. No other information regarding
the suspect was provided.

Officer Bates proceeded to Antonz’s Barbershop,
located at 3412 Semmes Avenue, and went inside. There, he saw two
people getting a haircut and two others waiting to get a haircut.
Bates, who was in uniform, informed the barber that he was
investigating a crime that had been committed by an armed suspect
and asked him if anybody had run into the barbershop "in the
past couple minutes." The barber said that no one had. No
one in the barbershop, according to Bates, appeared to be out of
breath. Bates did not tell those in the barbershop that the
suspect’s last name was "Cheeks."

Bates asked the two customers waiting for
haircuts for identification, and they both provided it to the
officer. Bates then asked one of the men getting a haircut for
identification, and he produced it. Finally, Bates asked Cheeks,
the other man getting a haircut, what his name was and to see his
identification. Cheeks, who, according to Bates, "was
halfway through his haircut," gave the officer a name other
than Cheeks and informed him that he did not have any
identification.

Bates then stood beside Cheeks, approximately
three feet away, for two to three minutes, "wait[ing] for
[Cheeks] to get his haircut." Bates testified he did not
know Cheeks at that time and had no reason to think Cheeks had
given him a false name. He added that Cheeks was not engaged in
criminal conduct but was merely getting a haircut. However,
because he had received a report that an armed suspect had
entered the barbershop and because Cheeks had not produced
identification, Bates stood next to Cheeks "just in case he
did have a gun."

At the conclusion of his haircut, Cheeks
started walking quickly toward the front door of the barbershop.
Bates asked him, "Hey buddy, can I talk to you
outside." Cheeks replied, "No problem," and they
went outside. Bates told Cheeks he was investigating "an
armed suspect call" and asked him if he could pat him down
for the safety of them both. Cheeks responded affirmatively.
Bates asked Cheeks to turn around. Cheeks turned around to face
the door of the barbershop, put his hands up, and ran into the
barbershop.

Officer Bates pursued Cheeks and tackled him
inside the barbershop. Cheeks got up and started running again.
Bates again tackled him inside the barbershop and hung on while
Cheeks dragged him through the barbershop toward the back door.
Freeing himself, Cheeks fled out the back door of the barbershop,
with Bates in pursuit. The back door opened onto Forest Hill
Avenue. After crossing Forest Hill Avenue, Cheeks ran behind a
building, where Bates, "just a couple feet behind him,"
saw Cheeks throw a gun against a brick wall as he ran.
Eventually, Bates and another officer apprehended Cheeks. They
found cocaine on his person and retrieved the gun he had thrown.

Prior to trial, Cheeks moved to suppress the
cocaine and gun, arguing that their discovery stemmed from the
unlawful seizure of his person. The trial court denied the
motion, ruling that the encounter was consensual until Cheeks
fled, at which point the officer had reasonable suspicion to
detain him.

II. ANALYSIS

"In reviewing a trial court’s denial of a
motion to suppress, ‘[t]he burden is upon [the defendant] to show
that th[e] ruling, when the evidence is considered most favorably
to the Commonwealth, constituted reversible error.’" McGee
v. Commonwealth
, 25 Va. App. 193, 197, 487 S.E.2d 259, 261
(1997) (en banc) (alterations in original) (quoting
Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729,
731 (1980)). "’Ultimate questions of reasonable suspicion
and probable cause to make a warrantless search’ involve
questions of both law and fact and are reviewed de novo
on appeal." Id. (quoting Ornelas v. United States,
517 U.S. 690, 691 (1996)). "Similarly, the question whether
a person has been seized in violation of the Fourth Amendment is
reviewed de novo on appeal." Reittinger v.
Commonwealth
, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000).
However, "we are bound by the trial court’s findings of
historical fact unless ‘plainly wrong’ or without evidence to
support them and we give due weight to the inferences drawn from
those facts by resident judges and local law enforcement
officers." McGee, 25 Va. App. at 198, 487 S.E.2d at
261 (citing Ornelas, 517 U.S. at 699).

Cheeks contends on appeal that he was
effectively seized by Officer Bates in Antonz’s Barbershop when
the officer, after telling the barber that he was investigating a
crime, stood next to Cheeks for several minutes waiting for the
barber to finish cutting Cheeks’ hair. Cheeks further contends
the seizure violated his Fourth Amendment rights because it was
not based on a reasonable, articulable suspicion. Thus, he
concludes, the trial court erred in refusing to suppress the gun
and cocaine, the discovery of which derived from the police’s
unlawful seizure of him.

The Commonwealth argues that Officer Bates
seized Cheeks only after Cheeks ran away from the officer. Up to
that point, the Commonwealth asserts, the encounter was
consensual.

A. Seizure

Encounters between the police and citizens
"generally fall into one of three categories." McGee,
25 Va. App. at 198, 487 S.E.2d at 261.

First, there are consensual
encounters which do not implicate the Fourth
Amendment. Next, there are brief investigatory
stops, commonly referred to as "Terry"
stops, which must be based upon reasonable,
articulable suspicion that criminal activity is
or may be afoot. Finally, there are "highly
intrusive, full-scale arrests" or searches
which must be based upon probable cause to
believe that a crime has been committed by the
suspect.

Id. (citations omitted).

Thus, a detention that is not consensual is a
seizure requiring Fourth Amendment scrutiny. See id.
at 198-99, 487 S.E.2d at 261-62; Payne v. Commonwealth, 14
Va. App. 86, 88, 414 S.E.2d 869, 870 (1992). "An encounter
is not consensual ‘if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed
that he was not free to leave.’" Piggott v. Commonwealth,
34 Va. App. 45, 49, 537 S.E.2d 618, 619 (2000) (quoting United
States v. Mendenhall
, 446 U.S. 544, 554 (1980)). "A
seizure occurs when an individual is either physically restrained
or has submitted to a show of authority" by the police. McGee,
25 Va. App. at 199, 487 S.E.2d at 262.

A consensual encounter occurs
when police officers approach persons in public
places to ask them questions, provided a
reasonable person would understand that he or she
could refuse to cooperate. Such encounters need
not be predicated on any suspicion of the
person’s involvement in wrongdoing, and remain
consensual as long as the citizen voluntarily
cooperates with the police.

Payne, 14 Va. App. at 88, 414 S.E.2d at
870 (internal quotations and citations omitted).

However, a consensual encounter loses its
consensual nature and becomes a seizure for Fourth Amendment
purposes when, in light of the totality of the circumstances
encompassing the encounter, a reasonable person would have
believed that he or she was no longer free to walk away from the
police, disregard their questions, ignore or decline their
requests, or otherwise end the encounter with them. See Piggott,
34 Va. App. at 49, 537 S.E.2d at 619; Payne, 14 Va. App.
at 88-89, 414 S.E.2d at 870. For a seizure to occur,
"[t]here must be some coercion or show of force or authority
by the officer, measured by objective standards, that would cause
a person so situated reasonably to have believed that he or she
was required to comply with the officer’s request." Commonwealth
v. Satchell
, 15 Va. App. 127, 131, 422 S.E.2d 412, 414-15
(1992).

Applying these principles to the circumstances
of this case, we find that the encounter between Officer Bates
and Cheeks was initially consensual. Upon entering the
barbershop, Bates, who was in uniform, told the barber merely
that a crime involving an armed suspect had been committed. He
did not mention the suspect’s last name. He then asked Cheeks,
along with the other customers in the barbershop, for his name
and identification. Cheeks voluntarily gave Bates a name (not
"Cheeks") and informed the officer that he did not have
identification. "An encounter between a law enforcement
officer and a citizen in which the officer merely identifies
himself and states that he is conducting a[n] . . .
investigation, without more, is not a seizure within the meaning
of the Fourth Amendment but is, instead, a consensual
encounter." McGee, 25 Va. App. at 199, 487 S.E.2d at
262.

We further find, however, that the encounter
between Bates and Cheeks lost its consensual nature when the
officer, having made it known that he was investigating a crime
involving an armed suspect and having been told by Cheeks that he
did not have identification, stood beside Cheeks for two to three
minutes waiting for him while the barber finished cutting his
hair. That action, we conclude, conveyed the unmistakable message
to Cheeks that Bates was no longer conducting a general
investigation but had made Cheeks the focus of his investigation.

As we noted in Langston v. Commonwealth,
28 Va. App. 276, 282, 504 S.E.2d 380, 383 (1998), "[t]he
circumstances of the encounter may indicate, even without
physical restraint, a suspect is not free to leave."

[W]hen a police officer
confronts a person and informs the individual
that he or she has been specifically identified
as a suspect in a particular crime which the
officer is investigating, that fact is
significant among the "totality of the
circumstances" to determine whether a
reasonable person would feel free to leave.

McGee, 25 Va. App. at 200, 487 S.E.2d at
262.

Here, even though Bates did not inform those in
the barbershop that the last name of the suspect was
"Cheeks" or directly accuse Cheeks of committing the
crime, we find that, by standing next to Cheeks, and Cheeks
alone, while Cheeks got his hair cut, Bates specifically
identified Cheeks as a suspect and implicitly informed him that
he was being detained to investigate his criminal activity. Such
a show of authority, we believe, would cause a reasonable person
in Cheeks’ position to have reasonably believed that he or she
was not free to terminate the encounter with the officer and walk
away.

We conclude, therefore, based on our de novo
review of all of the circumstances surrounding the encounter,
that the evidence proves that Cheeks was seized under the Fourth
Amendment when Officer Bates stood beside him in the barbershop.

B. REASONABLE SUSPICION

"In order to justify such a seizure, an
officer must have a ‘reasonable and articulable suspicion of
criminal activity on the part of the defendant.’" Hatcher
v. Commonwealth
, 14 Va. App. 487, 490, 419 S.E.2d 256, 258
(1992) (quoting Commonwealth v. Holloway, 9 Va. App. 11,
15, 384 S.E.2d 99, 101 (1989)). "[I]f there are articulable
facts supporting a reasonable suspicion that a person has
committed a criminal offense, that person may be stopped in order
to identify him, to question him briefly, or to detain him
briefly while attempting to obtain additional information." Hayes
v. Florida
, 470 U.S. 811, 816 (1985). However, the
justification for the seizure "must be more than an
‘inchoate and unparticularized suspicion or hunch.’" McGee,
25 Va. App. at 202, 487 S.E.2d at 263 (quoting Terry v. Ohio,
392 U.S. 1, 27 (1968) (internal quotes omitted)). In reviewing
whether an officer had reasonable suspicion to justify the
seizure, we must consider the "totality of the circumstances
and view those facts objectively through the eyes of a reasonable
police officer with the knowledge, training, and experience of
the investigating officer." Murphy v. Commonwealth, 9
Va. App. 139, 144, 384 S.E.2d 125, 128 (1989).

Here, the evidence established that Officer
Bates received information from his radio dispatch that an
assault with a gun had been committed in the 3400 block of Semmes
Avenue and that the suspect, a man named Cheeks, had run into
Antonz’s Barbershop, located in that block. No other information
regarding the suspect was provided. Likewise, no information was
transmitted as to when the alleged assault had occurred or when
the suspect had run into the barbershop. Bates testified that he
"thought it was just right then."

Based on the information from dispatch, Bates
went to the barbershop. Nothing in the record indicates the time
of the radio call, Bates’ location when he received the call, or
how long it took him to arrive at the barbershop.

Inside the barbershop, Bates found the barber
and four customers. Cheeks, along with another customer, was
getting his hair cut, while the two other customers waited.
Cheeks was "halfway through his haircut." None of the
customers was out of breath. In response to Bates’ inquiry, the
barber told Bates that no one had run into the shop in "the
past couple minutes."

When Bates confronted Cheeks to determine his
identity, Cheeks readily told the officer his name, which was not
"Cheeks," and said he had no identification. Bates
testified that he did not know Cheeks and had no reason to think
Cheeks had given him a false name. He also testified that Cheeks
was not engaged in criminal activity, and there was no indication
that Cheeks acted in a suspicious manner.

On these facts, we find that Officer Bates
lacked an objectively reasonable or articulable basis for
suspecting that Cheeks was or had recently been engaged in
criminal activity. Bates had no description of the suspect and
observed nothing that suggested that Cheeks was the suspect. At
most, Bates had an inchoate and unparticularized suspicion or
hunch that Cheeks might have been the suspect because he was
unable or unwilling to provide identification. Such a hunch,
however, does not rise to the level of reasonable suspicion
necessary to justify the seizure. See McGee, 25 Va.
App. at 202, 487 S.E.2d at 263.

We conclude, therefore, based on our de novo
review of the totality of the circumstances, that, because the
circumstances provided Bates no objective basis for suspecting
Cheeks was or had been engaged in criminal activity, Cheeks was
seized in violation of his Fourth Amendment rights. Hence, we
hold that the trial court erred in denying Cheeks’ motion to
suppress the gun and the cocaine, both of which were discovered
as a direct consequence of the unlawful detention. See Warlick
v. Commonwealth
, 215 Va. 263, 265, 208 S.E.2d 746, 747-48
(1974) (noting that exclusionary rule bars admission of
"derivative evidence" discovered as a result of an
unlawful search or seizure).

Accordingly, we reverse Cheeks’ convictions and
dismiss the charges.

Reversed and dismissed.

Frank, J. dissenting.

I would find the police did not seize appellant
while he was seated in the barber chair.

A seizure occurs "only when, by means of
physical force or a show of authority, [a person’s] freedom of
movement is restrained. Only when such restraint is imposed is
there any foundation whatever for invoking constitutional
safeguards."

United States v. Mendenhall, 446
U.S. 544, 553 (1980). "[I]f, in view of all of the
circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave," then a seizure
has occurred. Id. at 554.

Examples of circumstances that
might indicate a seizure, even where the person
did not attempt to leave, would be the
threatening presence of several officers, the
display of a weapon by an officer, some physical
touching of the person of the citizen, or the use
of language or tone of voice indicating that
compliance with the officer’s request might be
compelled. See Terry v. Ohio, [392
U.S. 1, 19 n.16 (1968)]; Dunaway v. New York,
442 U.S. 200, 207, and n. 6; 3 W. LaFave, Search
and Seizure 53-55 (1978). In the absence of some
such evidence, otherwise inoffensive contact
between a member of the public and the police
cannot, as a matter of law, amount to a seizure
of that person.

Id. at 554-55. See also Ford
v. City of Newport News
, 23 Va. App. 137, 142, 474 S.E.2d
848, 850 (1996).

Officer Bates was in uniform. However, he was
the only police officer in the barbershop. He did not display his
gun. He did not touch appellant. The officer did not tell
appellant he had to remain in the chair and did not tell
appellant he was a suspect in a crime. Nothing in the record
suggests Bates’ tone of voice indicated compliance was mandatory.

The officer did remain in the shop,
approximately three feet away from appellant while the barber cut
his hair. I believe this circumstance is similar to Clarke v.
Commonwealth
, 32 Va. App. 286, 527 S.E.2d 484 (2000). In Clarke,
an officer approached a stopped vehicle and asked the passenger,
Clarke, some questions. We found the police are "permitted
to ask [a suspect] questions without violating his Fourth
Amendment rights." Id. at 303, 527 S.E.2d at 492.

Officer Bates simply asked appellant for
identification. The officer then stood aside, asked nothing, and
waited for

the barber to finish cutting appellant’s hair.
Appellant was already seated in the chair when approached by the
officer. Appellant continued to sit there until the haircut was
completed and then started to leave the shop. The only
"restraint" resulted from appellant’s desire to remain
where he was and get his hair cut.

I do not believe a "show of
authority" occurred nor would a reasonable person feel
seized by anything Officer Bates did. Therefore, I would affirm
the convictions.

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, this opinion is not designated for
publication.