Branham v. Commonwealth ( 2012 )

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette and Mims, JJ.,
and Russell and Lacy, S.JJ.
CURTIS WAYNE BRANHAM
OPINION BY
v. Record No. 110263 SENIOR JUSTICE CHARLES S. RUSSELL
January 13, 2012
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal presents questions involving the Fourth
Amendment's protections against unreasonable searches and
seizures. It also presents a question of the sufficiency of
chain of custody evidence.
Facts and Proceedings
The first two assignments of error question the circuit
court's denial of a motion to suppress the Commonwealth's
evidence on Fourth Amendment grounds. The material facts
presented on that motion, heard in advance of trial, are
undisputed but the parties disagree as to their legal
consequences.
Shortly after midnight on July 13, 2009, Deputy J. E.
Begley, Investigator Mac Bridgewater and Sheriff L. J. Ayers,
all of the Sheriff's Department of Amherst County, were driving
to the residence of Jesse Ford, located in a rural area of the
county, 1 to serve felony warrants on Ford for offenses involving
cocaine. Access to the Ford residence was by a driveway that
also served a second residence. The Ford residence lay about a
quarter of a mile up the driveway from the public road. The
officers were in two marked police cars. Begley drove the
leading car and the other two officers were in the second car,
following Begley.
Turning into the driveway that leads to the Ford residence,
the officers found the driveway blocked by a green Nissan parked
in the driveway about 15 feet from the public road. Seated in
the Nissan, alone, was Curtis Wayne Branham. Begley turned his
spotlight on the Nissan but neither he nor the officers in the
car behind him activated any emergency equipment. Begley walked
to the Nissan and asked Branham for his driver's license.
Branham handed the license to Begley who noted that Branham's
hands were shaking and that he seemed unusually nervous. Begley
entered Branham's driver's license information into the
electronic record system and, while waiting for results from the
license check, spoke to Branham again, asking him "what was
going on." Begley had noted from the driver's license that
1
A witness testified that Ford's nearest neighbor lived
about a quarter of a mile away.
2
Branham's address was "about five [or] six miles" away from the
place where he was parked.
Begley asked Branham if he had "anything illegal in the
vehicle, such as weapons." Branham said "No." Still waiting
for a response to the license check, Begley asked Branham "if he
would mind stepping out of the vehicle so I could pat him down
for weapons." Branham stepped out of car. Begley then asked
Branham if he could search him rather than pat him down, and
Branham consented to the search. At some point during this
procedure, the other two officers appeared at the scene. None
of the officers drew their weapons. Begley asked Branham why he
was at this particular location and Branham responded that he
had been "out looking for somebody up there [but] couldn't find
the residence." He did not give the name or address of the
person for whom he was looking.
Begley testified that during these events Branham was
cooperative and never indicated any hesitation or reluctance to
comply with Begley's several requests. Begley testified that
these requests were made in a conversational, not a demanding or
threatening, tone and that the officers' cars were parked behind
the Nissan but in such a way as not to obstruct its departure if
Branham had desired to leave. Begley could not recall when,
during these events, he received the results of the license
check but confirmed that he still had Branham's license in his
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possession when asking permission to search him. There is no
evidence that Branham ever asked for the return of his license.
While Begley and Branham were talking, a car came down the
driveway and stopped ahead of the Nissan. The sole occupant was
Jesse Ford, the subject of the arrest warrants the officers were
there to serve. Investigator Bridgewater went to Ford's car
while Begley searched Branham.
In searching Branham's person, Begley reached into his
right front jeans pocket and removed a plastic baggie containing
an off-white powder that appeared to Begley to be cocaine. At
that point, Begley handcuffed Branham and gave him Miranda
warnings. He then asked Branham if there was anything in the
car. Branham said "No" and told Begley he could search the car
if he wanted to. A search of the Nissan revealed two sets of
digital scales in the center console. Both showed a residue of
white powder that Begley, based on his experience, thought to be
cocaine. The contents of the baggie taken from Branham's pocket
proved, on later examination, to be cocaine.
Indicted in the Circuit Court of Amherst County for
possession of cocaine with intent to distribute in violation of
Code § 18.2-248, Branham moved the court to suppress the
evidence on the ground that it represented the fruits of his
illegal seizure in violation of his Fourth Amendment rights.
The court denied the motion and, at a bench trial, found Branham
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guilty. His appeal to the Court of Appeals was denied by a per
curiam order and then reviewed by a three-judge panel which
again denied it by an order entered on December 27, 2010. We
awarded Branham an appeal.
Analysis
A. Search and Seizure
Branham contends that he was seized, within the meaning of
the Fourth Amendment, as soon as Deputy Begley took his driver's
license to make a record check, that Begley had no basis for a
reasonable, articulable suspicion that crime was then afoot,
much less probable cause to justify a warrantless arrest, and
that the results of the search were therefore the fruits of an
unlawful seizure. The Commonwealth concedes that Branham was
seized when cocaine was discovered on his person, but contends
that all the events leading up to the discovery of the cocaine
were incidents of a purely consensual encounter. In any event,
the Commonwealth argues, Begley had a reasonable and articulable
suspicion that criminal activity was afoot based upon the time,
the place, the surrounding circumstances, Branham's demeanor and
his evasive answers to questions.
When reviewing a denial of a motion to suppress evidence,
an appellate court considers the evidence in the light most
favorable to the Commonwealth and will accord the Commonwealth
the benefit of all reasonable inferences fairly deducible from
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that evidence. Sidney v. Commonwealth, 280 Va. 517, 520, 702
S.E.2d 124, 126 (2010). The defendant has the burden of showing
that even when the evidence is reviewed in that light, denying
the motion to suppress was reversible error. Id. at 522, 702
S.E.2d at 127. We review de novo the trial court's application
of the law to the particular facts of the case. Glenn v.
Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913, (2008).
A succinct summary by the United States Court of Appeals
for the Fourth Circuit is helpful:
The Supreme Court has recognized three
distinct types of police-citizen interactions:
(1) arrest, which must be supported by
probable cause, see Brown v. Illinois, 422
U.S. 590 (1975); (2) brief investigatory
stops, which must be supported by reasonable
articulable suspicion, see [Terry v. Ohio, 392
U.S. 1 (1968)]; and (3) brief encounters
between police and citizens, which require no
objective justification, see Florida v.
Bostick, 501 U.S. 429 (1991).
United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002).
The Fourth Amendment does not require any level of
suspicion to justify non-coercive questioning by officers,
including a request for identification. United States v.
Drayton, 536 U.S. 194, 200-01 (2002); Montague v. Commonwealth,
278 Va. 532, 538, 684 S.E.2d 583, 587 (2009).
"A police officer may constitutionally conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot." Bass v.
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Commonwealth, 259 Va. 470, 474-75, 525 S.E.2d 921, 923 (2000)
(quoting Terry, 392 U.S. at 30). An officer may briefly detain
a person in those circumstances while the officer questions him,
tries to identify him and attempts to gather additional
information to either dispel or confirm his suspicions. Hayes
v. Florida, 470 U.S. 811, 816 (1985).
A "reasonable suspicion" requires only "some minimal level
of objective justification" for making such a stop. I.N.S. v.
Delgado, 466 U.S. 210, 217 (1984). Whether an officer has a
reasonable suspicion to justify such a detention is "based on an
assessment of the totality of the circumstances." Harris v.
Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145 (2008).
That assessment "allows officers to draw on their own experience
and specialized training to make inferences from and deductions
about the cumulative information available to them that 'might
well elude an untrained person.' " United States v. Arvizu, 534
U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S.
411, 418 (1981)).
Applying those principles to the present case, we hold that
the initial encounter between Deputy Begley and Branham was
entirely consensual. Branham was not required by law to
surrender his driver's license for a record check because Code
§ 46.2-104, requiring the owner or operator of a motor vehicle
to exhibit his driver's license to an officer for
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identification, applies only when such a driver has received a
signal to stop from a law-enforcement officer. Thus, Begley's
request to see his driver's license was no more than a request,
and Branham's compliance was voluntary and not coerced. The
other officers did not say anything to Branham until after the
cocaine was discovered, there was no display of weapons or
emergency lights, Branham's car was not blocked and no
threatening or coercive tone of voice was used.
Further, as the chain of events unfolded, Begley developed
a reasonable, articulable suspicion that criminal activity was
afoot. When he examined Branham's driver's license, he could
infer that Branham was probably familiar with the sparsely
populated rural area because he lived only five or six miles
away. Branham was notably nervous and his hands were shaking. 2
He obviously did not live where he was found and his explanation
of his presence there was most unlikely. He claimed to be lost
and unable to find the residence he was looking for but did not
provide the name of the person he was seeking or give the
address he was trying to locate. The driveway in which he was
parked led to the residence of Jesse Ford, whom the officers
were seeking in order to serve felony warrants involving
2
"Nervous, evasive behavior is a pertinent factor in
determining reasonable suspicion." Whitfield v. Commonwealth,
265 Va. 358, 362, 576 S.E.2d 463, 465 (2003).
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cocaine. From these circumstances, Begley could reasonably
suspect that Branham had not parked in Ford's driveway at nearly
one o'clock in the morning because he was lost.
We hold that Deputy Begley had a reasonable articulable
basis for a suspicion sufficient to justify detaining Branham
while he attempted to gather information to either dispel or
confirm his suspicions. His search of Branham's person and
vehicle and the results of those searches were not, therefore,
the fruits of an unlawful seizure in violation of the Fourth
Amendment. We agree with the Court of Appeals' holding that the
circuit court correctly denied Branham's motion to suppress.
B. Chain of Custody
Branham also assigns error to the circuit court's ruling
admitting in evidence a certificate of analysis of the cocaine
pursuant to Code § 19.2-187.1. He contends that he was denied
his right of confrontation because the Commonwealth did not call
as witnesses all persons who were involved in the chain of
custody of the cocaine samples from the time they left the hands
of Deputy Begley until they were received by the laboratory
technician who analyzed them.
We review the decision of a circuit court with regard to
the admission of evidence according to an abuse of discretion
standard. Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d
618, 620 (2010).
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Prior to trial, Branham filed a notice pursuant to Code
§ 19.2-187.1 asserting his right, if the Commonwealth intended
to introduce a certificate of analysis at trial, to confront as
a witness "any person performing such analysis or examination or
involved in the chain of custody."
Three witnesses testified at trial to the chain of custody.
Deputy Begley testified that he retained the items to be
analyzed in his possession from the time he seized them until he
deposited them in the evidence locker in the Sheriff's
Department. Belinda Gaines, an evidence technician in the
Sheriff's Department, testified that on July 16, 2009, she
opened the locker, removed the items, logged them into the
sheriff's computer system, packaged them and sent them by
certified mail to the Virginia Department of Forensic Science
regional laboratory in Roanoke. She recorded the certified mail
certificate number. She testified that the only other person
who possessed a key to the evidence locker was her supervisor,
Captain Doss, but said that he only opened the locker when she
was not working. Steven E. Hopridge, Jr., a chemical analyst
with the regional laboratory in Roanoke, testified that he had
received the package containing the items by certified mail at
his Roanoke laboratory, that the package was intact, that the
seal was unbroken, that he opened the package, analyzed the
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contents, found them to contain cocaine, and signed the
certificate of analysis offered in evidence.
Branham argues that, in addition to those witnesses, he had
a right to cross-examine Captain Doss, and any postal workers
who might have handled the certified mail package, to ascertain
whether the contents had been subject to tampering, alteration
or substitution while in transit, as well as any unknown
employees of the laboratory who took the package from the mail
and brought it to Hopridge for analysis.
Branham's contentions have no merit. The Commonwealth was
required to "show with reasonable certainty that there has been
no alteration or substitution of the item[s]," Herndon, 280 Va.
at 143, 694 S.E.2d at 620, but it was "not required to exclude
every conceivable possibility of substitution, alteration, or
tampering." Pope v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d
352, 357 (1987). The Commonwealth must establish only the vital
links in the chain of custody. Other gaps in the chain go to
the weight of the evidence rather than its admissibility.
Aguilar v. Commonwealth, 280 Va. 322, 332-33, 699 S.E.2d 215,
220 (2010), cert. denied ___ U.S. ___, 131 S. Ct. 3089 (2011).
Neither Captain Doss nor the postal workers were "vital links"
in the chain of custody. See Herndon, 280 Va. at 143, 694
S.E.2d at 620. No contention was made at trial that Captain
Doss ever had any contact with the evidence and he was not shown
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to be a link in the chain. In the absence of clear evidence to
the contrary, postal workers are entitled to a presumption of
regularity in the performance of their duties. United States v.
Cook, 580 F. Supp. 948, 955 (N.D. W.Va. 1983), aff'd, 782 F.2d
1037 (4th Cir. 1986). We extend the same presumption to any
unidentified employee at the laboratory in Roanoke who retrieved
the package from the mail and delivered it in an intact
condition to Hopridge for examination. See O'Bannon v.
Saunders, 65 Va. (24 Gratt.) 138, 142 (1873) (until the contrary
is shown, there is a presumption that everyone performs his
official duties) accord United States v. Chemical Found., Inc.,
272 U.S. 1, 14-15 (1926).
Conclusion
We find no error in the circuit court's ruling denying
Branham's motion to suppress and we find no abuse of that
court's discretion in admitting the certificate of analysis in
evidence. Accordingly, for the reasons stated, we will affirm
the judgment of the Court of Appeals.
Affirmed.
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