Kenneth Eugene Britt v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia
KENNETH EUGENE BRITT
MEMORANDUM OPINION * BY
v. Record No. 2795-99-1 JUDGE LARRY G. ELDER
DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Lydia Calvert Taylor, Judge
Kevin M. Diamonstein for appellant
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Kenneth Eugene Britt (appellant) appeals from his
conviction for possession of cocaine in violation of Code
§ 18.2-250, entered on his conditional plea of guilty. On
appeal, he contends the trial court erroneously denied his
motion to suppress because the officer had neither reasonable
suspicion to detain him nor probable cause to justify the search
in which he found cocaine on appellant's person. We hold the
officer had first reasonable suspicion to question and then
probable cause to arrest appellant for trespassing and that the
search which yielded the cocaine was a valid search incident to
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
appellant's arrest for trespassing. Therefore, we affirm
appellant's conviction.
At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving the challenged action did
not violate the defendant's constitutional rights. See Simmons
v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989).
On appeal, we view the evidence in the light most favorable to
the prevailing party, here the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. See
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). "[W]e 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 v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United
States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d
911 (1996)). However, we review de novo the trial court's
application of defined legal standards such as reasonable
suspicion and probable cause to the particular facts of the
case. See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.
"Fourth Amendment jurisprudence recognizes three categories
of police-citizen confrontations: (1) consensual encounters,
(2) brief, minimally intrusive investigatory detentions based
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upon specific, articulable facts, commonly referred to as Terry
stops, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968), and (3) highly intrusive arrests and
searches founded on probable cause." Wechsler v. Commonwealth,
20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995). In order to
justify a Terry stop, "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)). An
officer who develops reasonable suspicion that criminal activity
is occurring may stop a person "'in order to identify him, to
question him briefly, or to detain him briefly, while attempting
to obtain additional information'" in order to confirm or dispel
his suspicions. DePriest v. Commonwealth, 4 Va. App. 577, 585,
359 S.E.2d 540, 544 (1987) (quoting Hayes v. Florida, 470 U.S.
811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985)).
"Probable cause exists where 'the facts and circumstances within
[the arresting officers'] knowledge and of which they had
reasonably trustworthy information [are] sufficient in
themselves to warrant a man of reasonable caution in the belief
that' an offense has been or is being committed." Brinegar v.
United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93
L. Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S.
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132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543 (1925)). Our review
of the existence of reasonable suspicion and probable cause
involves application of an objective rather than subjective
standard. See, e.g., Whren v. United States, 517 U.S. 806,
812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996).
Here, assuming without deciding the encounter between
Officer Donnelly and appellant was not consensual, the evidence
establishes that Donnelly had reasonable suspicion to detain
appellant briefly in order to determine whether he was
trespassing. The management of the private apartment complex
where Donnelly encountered appellant had experienced repeated
problems with trespassing and drug trafficking on their premises
and had made a written request to the Norfolk Police Department
to help them address the problem by arresting any violators. At
least five months earlier, the management had posted prominent
"No Trespassing" signs in a location visible to anyone
traversing the private property between the two buildings.
When Officer Donnelly saw appellant on the property between
the two buildings, he knew appellant did not live there. As a
result, he had reasonable suspicion to believe appellant was
trespassing, and he was entitled to detain appellant briefly to
determine whether he was, in fact, a trespasser or a legitimate
guest on the premises. When appellant told Donnelly he was
visiting the woman with whom he was standing, Maria Elliot, and
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refused to answer any of Donnelly's other questions, Donnelly
had probable cause to arrest appellant for trespassing because
he recognized Elliot and knew she also did not reside in the
apartment complex. Thus, Donnelly quickly developed probable
cause to arrest appellant for trespassing, and he was entitled
to search appellant pursuant to that arrest. See, e.g.,
DePriest, 4 Va. App. at 583, 359 S.E.2d at 543.
Officer Donnelly initially intended to issue appellant a
summons for the trespassing offense and would not have been
entitled to search appellant incident to that summons in the
absence of proof of a need to disarm appellant or preserve
evidence of the violation for which the summons was issued. See
Lovelace v. Commonwealth, 258 Va. 588, 594, 522 S.E.2d 856, 859
(1999) (citing Knowles v. Iowa, 525 U.S. 113, 115-18, 119 S. Ct.
484, 486-88, 142 L. Ed. 2d 492 (1998)). However, the trial
court found credible Officer Donnelly's testimony that he
subsequently determined to effect a full custodial arrest for
trespass because appellant said he had no identification with
him and because departmental policy required Donnelly to effect
a full custodial arrest under those circumstances. Because
Donnelly did not discover appellant's identification until after
he had discovered cocaine in appellant's pocket, Donnelly's
actions in searching appellant pursuant to his custodial arrest
for trespassing were objectively reasonable under the Fourth
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Amendment. Therefore, the trial court did not err in denying
appellant's motion to suppress the fruits of the search
conducted incident to that arrest. 1
For these reasons, we affirm appellant's conviction for
possession of cocaine.
Affirmed.
1
We need not decide whether any of Officer Donnelly's
observations prior to his discovery of cocaine in appellant's
pocket provided reasonable suspicion or probable cause to
believe appellant had committed a drug offense.
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Benton, J., dissenting.
A police officer may detain a person in a "Terry stop" only
if the officer possesses articulable facts supporting a
reasonable suspicion that the person has committed a criminal
offense, is engaging in a criminal offense, or is about to
engage in a criminal offense. See Terry v. Ohio, 392 U.S. 1,
21-22 (1968). "[A] reasonable suspicion [is one, which is]
based on objective facts, that the individual is involved in
criminal activity." Brown v. Texas, 443 U.S. 47, 51 (1979).
The officer in this case had no objective facts on which to
conclude that Kenneth E. Britt had trespassed or was about to
trespass.
Code § 18.2-119 provides in pertinent part that "[i]f any
person without authority of law goes upon or remains upon the
lands, buildings or premises of another, or any portion or area
thereof, after having been forbidden to do so, either orally or
in writing . . . or after having been forbidden to do so by a
sign or signs posted . . . shall be guilty of a Class 1
misdemeanor." The evidence proved the officer had no
information that Britt had been forbidden, either orally or in
writing, to walk upon the walkway that led from the public
sidewalk toward the apartments, the parking lot, and beyond.
Thus, the posted signs provide the only possible justification
for stopping Britt.
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The evidence in this case further proved that the walkway
intersected and was perpendicular to the public sidewalk in an
urban area. Parallel to each side of the walkway, at an
undescribed distance from the walkway, were apartment buildings.
On each apartment building was "the standard sign,
no-trespassing signs." The evidence does not otherwise
establish the content of the signs and clearly does not prove
that the signs forbad persons from traversing the walkway.
Although the evidence established that the walkway on which
Britt was standing was not the public sidewalk, it was a
location open to the public. No evidence proved that the sign
on the building or any other sign informed Britt that he was not
privileged to stand or walk on the walkway. 2 See Jones v.
Commonwealth, 18 Va. App. 229, 232, 443 S.E.2d 189, 191 (1994);
Reed v. Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d 274, 278
(1988) (noting that the case law in Virginia has uniformly
construed the statutory offense of criminal trespass to require
a willful trespass).
2
Although I recognize that the Terry standard is far short
of the requirement of proof beyond a reasonable doubt to convict
of a criminal offense, I believe it is significant to note that
the record establishes Britt was acquitted of the charge of
trespass. Certainly, if the evidence in the failed criminal
prosecution was lacking in proof of the content of the "No
Trespassing" sign as in this case, no cause arose to stop Britt
or to prosecute him for trespass.
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To have a reasonable, articulable suspicion of trespass, a
police officer must observe something more than a person
standing on a walkway that is generally and ostensibly open to
the use of the public. The officer did not observe Britt leave
or approach any of the buildings. Terry does not allow police
officers to detain persons at random to inquire whether they
have broken the law simply by leaving the public sidewalk to
enter upon a privately owned walkway in a public location.
The United States Supreme Court stated the following in a
similar context:
The flaw in the State's case is that none
of the circumstances preceding the officers'
detention of appellant justified a
reasonable suspicion that he was involved in
criminal conduct. [The officer] . . .
testified at appellant's trial that the
situation . . . "looked suspicious," but he
was unable to point to any facts supporting
that conclusion. There is no indication in
the record that it was unusual for people to
be [on the walkway]. The fact that
appellant was in a neighborhood frequented
by drug users, standing alone, is not a
basis for concluding that appellant himself
was engaged in criminal conduct. In short,
the appellant's activity was no different
from the activity of other pedestrians in
that neighborhood. When pressed, [the
officer] . . . acknowledged that the only
reason he stopped appellant was to ascertain
[whether he was an invitee]. The record
suggests an understandable desire to assert
a police presence; however, that purpose
does not negate Fourth Amendment guarantees.
In the absence of any basis for
suspecting appellant of misconduct, the
balance between the public interest and
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appellant's right to personal security and
privacy tilts in favor of freedom from
police interference.
Brown, 443 U.S. at 52 (footnote omitted).
Generally, government officials are barred by the Fourth
Amendment "from undertaking a search or seizure absent
individualized suspicion." Chandler v. Miller, 520 U.S. 305,
308 (1997). Absent proof that some sign barred persons from
using the right of way that abuts the public walkway, the
evidence fails to negate the premise that the walkway was a
location open to the public. Thus, the evidence permits only
the conclusion that the officer acted pursuant to a general
scheme to stop anyone without particularized suspicion.
The United States Supreme Court has "expressly identified
this 'right to remove from one place to another according to
inclination' as 'an attribute of personal liberty' protected by
the Constitution." Chicago v. Morales, 527 U.S. 41, 53 (1999)
(quoting Williams v. Fears, 179 U.S. 270, 274 (1900)); see also
Papachristou v. Jacksonville, 405 U.S. 156, 164 (1972)). To
permit a police officer to make a "Terry" detention because he
has a subjective belief, unsupported by objective facts, that an
inquiry may prove the person is not an invitee improperly
permits arbitrary and discriminatory state action. This ruling
gives absolute discretion to police officers to detain on the
hunch of "trespass" any person who steps off the public
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sidewalk. Terry instructs, however, that a "hunch" is an
insufficient basis to detain a person. See 392 U.S. at 27; see
also Moss v. Commonwealth, 7 Va. App. 305, 308-09, 373 S.E.2d
170, 172 (1988). "[S]uch a standardless sweep [impermissibly]
allows policemen . . . to pursue their personal predilections."
Smith v. Goguen, 415 U.S. 566, 575 (1974).
For these reasons, I would hold that the officer lacked a
reasonable basis to detain Britt, and I would reverse the
conviction. I dissent.
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