COURT OF APPEALS OF VIRGINIA<\/p>\n
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
\nArgued by teleconference<\/p>\n
COMMONWEALTH OF VIRGINIA
\n MEMORANDUM OPINION* BY
\nv. Record No. 1364-98-3 JUDGE RUDOLPH BUMGARDNER, III
\n NOVEMBER 24, 1998
\nDOUGLAS JEROME SMITH<\/p>\n
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
\n Roy B. Willett, Judge<\/p>\n
Kathleen B. Martin, Assistant Attorney
\nGeneral (Mark L. Earley, Attorney General, on
\nbrief), for appellant.<\/p>\n
Robert C. Hagan, Jr., for appellee.<\/p>\n
The Commonwealth appeals the suppression of drugs seized
\nafter a search of the defendant. It argues that the defendant
\nconsented to the search, but we conclude that the police
\nillegally seized the defendant before he consented. After that
\nseizure, the Commonwealth could prove neither that the evidence
\nwas unconnected to the seizure nor that the defendant freely and
\nvoluntarily consented to the search. Accordingly, we affirm the
\ntrial court’s decision to suppress the evidence.
\n “In an appeal by the Commonwealth of an order of the trial
\ncourt suppressing evidence, the evidence must be viewed in the
\nlight most favorable to the defendant . . . .” Commonwealth v.
\nPeterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992)
\n(citations omitted). While we are bound to review de novo the<\/p>\n
*Pursuant to Code ? 17-116.010 this opinion is not
\ndesignated for publication.
\n – 2 –
\nultimate questions of reasonable suspicion and probable cause, we
\n“review findings of historical fact only for clear error,
\nand . . . give due weight to inferences drawn from those facts by
\nresident judges and local law enforcement officers.” Ornelas v.
\nUnited States, 517 U.S. 690, 699 (1996). Questions of fact are
\nbinding on appeal unless plainly wrong. See McGee v.
\nCommonwealth, 25 Va. App. 193, 198 n.1, 487 S.E.2d 259, 261 n.1
\n(1997) (en banc).
\n Officer Terwilliger was on routine patrol when he saw the
\ndefendant standing behind a Food Lion store near a no trespassing
\nsign. He turned his car around and parked about thirty feet from
\nthe defendant to see if he was all right and what he was doing
\nthere. Terwilliger did not suspect the defendant of criminal
\nbehavior, nor did he call for any assistance.
\n As Officer Terwilliger got out of his car, the defendant
\nwalked toward him carrying a large nylon bag. Terwilliger asked
\nthe defendant what he was doing, and the defendant replied that
\nhe had fought with his girlfriend. The defendant added that he
\nhad left her apartment, although he could not give her address,
\nwas waiting for a ride, and that she was probably at a nearby pay
\nphone. Terwilliger continued talking with the defendant because
\nhe was suspicious of what he perceived as conflicting stories
\nregarding the girlfriend. Eventually, he asked the defendant if
\nhe could look in his bag. The defendant set it down on the
\nground, lifted his hands, and said, “go ahead.” Terwilliger took
\nthe bag to his vehicle to use the headlights and began looking in
\n – 3 –
\nit.
\n While Terwilliger was inspecting the bag, Officer Hoover
\narrived. He heard the radio message that Terwilliger was marking
\noff to check a suspicious person. Without asking whether
\nTerwilliger needed assistance or being asked to assist, Hoover
\npatted down the defendant and asked him if he had any weapons.
\nThe defendant replied that he had none and added that he had
\nnever been in any trouble.
\n The defendant put his hands in his pockets, and Hoover told
\nhim to keep his hands out of his pockets. When the defendant
\ncontinued to put his hands in his pockets because it was cold,
\nHoover said he wanted to know what the defendant had in his
\npockets. After repeated requests, the defendant emptied his
\npockets onto the hood of the police car, but he kept a change
\npurse in his hand. Hoover asked to see the purse, and the
\ndefendant handed it to him. When asked what it contained, the
\ndefendant replied it held only money. Hoover asked if he could
\nlook inside, and the defendant responded, “do you have to look in
\nit?” Hoover replied that he just wanted to see what was in it.
\nThe defendant replied “go ahead.” Hoover first found a small
\nbaggy corner with residue and then found two more baggies in a
\nside compartment that contained a white powdery substance. The
\nofficers formally arrested and placed the defendant in custody
\nbecause of the items found in the change purse. Those are the
\nitems that the defendant sought to suppress.
\n Not every police-citizen encounter implicates the Fourth
\n – 4 –
\nAmendment. See McGee, 25 Va. App. at 198, 487 S.E.2d at 261;
\nIglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173
\n(1988) (en banc). A consensual encounter occurs where a
\ndefendant voluntarily responds to an officer’s request. See
\nMcGee, 25 Va. App. at 198, 487 S.E.2d at 261. Such an encounter
\nbecomes a seizure “[o]nly when the officer, by means of physical
\nforce or show of authority, has restrained the liberty of a
\ncitizen. . . .” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). A
\nperson is seized if in view of all the circumstances, a
\nreasonable person would believe he is not free to leave. See
\nFord v. City of Newport News, 23 Va. App. 137, 142, 474 S.E.2d
\n848, 850 (1996) (citation omitted). Factors to consider when
\ndetermining whether a seizure occurred are “the threatening
\npresence of several officers, . . . , some physical touching of
\nthe [suspect], or the use of language or tone of voice indicating
\nthat compliance with the officer’s request might be compelled.”
\nUnited States v. Mendenhall, 446 U.S. 544, 554 (1980). See
\nThomas v. Commonwealth, 24 Va. App. 49, 54, 480 S.E.2d 135, 137
\n(1997) (en banc) (a seizure requires some physical restraint or
\nsubmission to an officer’s authority).
\n We conclude that the encounter between Officer Terwilliger
\nand the defendant was consensual. As Terwilliger exited his
\nvehicle, the defendant approached him. The initial encounter was
\nentirely consensual. Neither the initial encounter nor the
\nsearch of the large nylon bag implicated the Fourth Amendment.
\nThe defendant consented freely and voluntarily to both actions,
\n – 5 –
\nand the circumstances were not coercive.
\n The second officer arrived and immediately frisked the
\ndefendant. He had no basis to conduct a Terry frisk because he
\nhad no knowledge about the situation he was approaching. He had
\nno facts that would articulate a reasonable suspicion that the
\ndefendant was engaged in criminal activity because even the
\nofficer who knew the facts did not suspect the defendant was so
\nengaged. Hoover had no facts that would articulate a reasonable
\nsuspicion that the defendant was armed and dangerous because
\nOfficer Terwilliger did not suspect the defendant posed a threat.
\n Officer Terwilliger’s actions imply that he did not feel he
\nhad reasonable grounds to suspect the defendant. Although
\nTerwilliger stopped to investigate because the defendant was in a
\nsuspicious location under suspicious circumstances, he was not
\nworried about the defendant being a threat, and he did not
\nsuspect criminal activity. The defendant was within a few feet
\nof him. Terwilliger was talking with the defendant, but his
\nattention was focused on his search of the defendant’s bag.
\nTerwilliger never felt the need to frisk the defendant before
\nreturning to the cruiser to search the bag. Cf. Pennsylvania v.
\nMimms, 434 U.S. 106, 112 (1977) (“any man of ‘reasonable caution’
\nwould likely have conducted the ‘pat down'” (citation omitted)).
\n Officer Hoover lacked reasonable suspicion to conduct a Terry
\nsearch, and when he did, he seized the defendant and implicated
\nthe Fourth Amendment. A person is seized by a laying on of hands
\nor an application of physical force to restrain movement. See
\n – 6 –
\nCalifornia v. Hordari D., 499 U.S. 621, 626 (1991).
\n The Commonwealth argues that the defendant consented to
\nOfficer Hoover searching in the change purse. In reply to
\nHoover’s initial request to look inside the purse, the defendant
\nasked, “do you have to?” but finally said “go ahead.” “‘Consent
\nto a search . . . must be unequivocal, specific and intelligently
\ngiven . . . and it is not lightly to be inferred.'” Elliotte v.
\nCommonwealth, 7 Va. App. 234, 239, 372 S.E.2d 416, 419 (1988)
\n(quoting Via v. Peyton, 284 F. Supp. 961, 967 (W.D. Va. 1968)).
\nThe burden is on the Commonwealth to prove the voluntariness of
\nthe consent and a lack of duress. See Bumper v. North Carolina,
\n319 U.S. 543, 548 (1968); Schneckloth v. Bustamonte, 412 U.S.
\n218, 248-49 (1973); Lowe v. Commonwealth, 218 Va. 670, 678, 239
\nS.E.2d 112, 117 (1977), cert. denied, 435 U.S. 930 (1978). This
\nburden “cannot be discharged by showing no more than acquiescence
\nto a claim of lawful authority.” See Bumper, 319 U.S. at 548-49.
\n Whether a consent to search is voluntary is a question of fact.
\n See Gray v. Commonwealth, 233 Va. 313, 327, 356 S.E.2d 157, 164,
\ncert. denied, 484 U.S. 873 (1987).
\n The defendant gave consent under circumstances similar to
\nthose in Satchell v. Commonwealth, 20 Va. App. 641, 460 S.E.2d
\n253 (1995) (en banc). An officer who suspected that Satchell was
\nselling drugs followed the defendant up the steps of a house.
\nWhen Satchell could not get inside because the door was locked,
\nthe officer asked, “What’s in your hand pal?” Satchell opened
\nhis hand in response to the question and revealed illegal drugs.
\n – 7 –
\n Satchell held that the police officer illegally seized the
\ndefendant and discovered the drugs only upon that unlawful
\nseizure. See id. at 650, 460 S.E.2d at 257. In this case, the
\nofficer illegally seized the defendant and discovered the drugs
\nin the coin purse only when the defendant responded to the
\nofficer’s request upon this unlawful seizure. As in Satchell,
\nthe evidence must be suppressed.
\n We find no evidence that the defendant’s consent was
\nvoluntary and unconnected to the seizure. After seizing the
\ndefendant, Officer Hoover asked about weapons, got the defendant
\nto empty his pockets, and then persisted in searching the coin
\npurse. Hoover was not authorized to do that even if he
\nreasonably suspected that the defendant had a weapon because the
\nchange purse could not conceal one. When the defendant complied
\nwith Hoover’s entreaties, he was responding to pressure created
\nby the seizure. He did not voluntarily consent to the search of
\nhis coin purse, and the evidence found in it is not admissible.
\n We affirm the suppression of the evidence.
\n Affirmed.<\/p>\n","protected":false},"excerpt":{"rendered":"
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