Commonwealth of Virginia v. Jamison Jerald Morton ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Elder
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0497-00-2 JUDGE LARRY G. ELDER
JULY 11, 2000
JAMISON JERALD MORTON
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Gregory W. Franklin, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellee.
Jamison Jerald Morton (defendant) stands indicted for
possession of cocaine with intent to distribute. The
Commonwealth appeals a pretrial ruling granting defendant's
motion to suppress all evidence seized from defendant. On
appeal, the Commonwealth contends the trial court erroneously
suppressed the evidence because it was obtained during a
consensual encounter with defendant for which the police did not
need reasonable suspicion or probable cause. We hold the trial
court did not err in concluding that the officer's retention of
defendant's identification converted the encounter into a
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
seizure under the facts of this case. Because the officers
lacked reasonable suspicion or probable cause to justify the
seizure, as the Commonwealth concedes, we hold that the seizure
was unreasonable and that the trial court did not err in
granting the motion to suppress.
I.
BACKGROUND
On October 19, 1999, Richmond Police Officer Bruce
Gochenour and his partner were traveling in a marked patrol car.
Gochenour's partner was driving, and Gochenour rode in the front
passenger seat. Each officer was in uniform, wore a badge, and
carried a firearm on his hip.
Gochenour saw defendant standing on a street corner with
three or four other people. As Gochenour and his partner drove
closer, the others left, but defendant remained. The patrol car
pulled up beside defendant. Gochenour rolled down his window,
and in a conversational tone, he asked defendant "what was going
on." Defendant "didn't really give a reply," but remained
standing on the corner. Gochenour got out of the car and said,
"[C]an I talk to you for a second?" Again, defendant gave "no
real verbal reply. He just stood there."
Around this same time, Gochenour heard his partner exit the
police car. Gochenour did not actually see him but assumed he
positioned himself at the rear of the vehicle.
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Gochenour, from a position of "about arm's length" from
defendant, asked, "[D]o you have an ID with you?" Defendant
said "yes," "pulled an ID from his pants pocket" and "handed it
to [Gochenour]." Gochenour took the identification card and
"looked at it to see that [it had] the blue and purple colors,
like . . . a DMV ID card," but he did not examine the
identifying information or "run [the] information in" at that
time. Instead, he placed the ID card in his utility belt, as
was his usual practice, and asked, "[D]o you have any weapons on
you?" Defendant then raised both hands, keeping one fist
closed, but gave no verbal response to Gochenour's question.
Gochenour said he "didn't know what [that] meant," so he asked
defendant, "[C]an I pat you down?" Defendant said, "[Y]eah,
sure," "kind of shrugged his shoulders," and opened his left
hand, revealing two off-white rocks which Gochenour believed to
be crack cocaine. Gochenour then took appellant into custody
and retrieved the rocks, which had fallen from defendant's hand.
Gochenour searched defendant incident to arrest and recovered
more suspected cocaine from his person.
Gochenour testified that he never told defendant during the
encounter that he was free to leave but that his tone remained
conversational throughout and that he did not touch defendant
until after defendant had consented to a pat-down and dropped
the suspected rocks of crack cocaine.
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The trial court, after hearing counsel's argument on the
motion to suppress, made the following observation: "What
[defense counsel] is saying . . . , if I understand him
correctly, is that once [Gochenour] retained [defendant's]
identification card and didn't hand it back to him, the sequence
there is very crucial. It's whether [Gochenour] took it, stuck
it in his belt and then asked to pat him down." The court then
questioned Gochenour to clarify the sequence of events and made
the following findings: "[Gochenour] said he took the card.
Didn't check the details. Saw that it was an ID card. Stuck it
in his belt. Asked [defendant] if he had any weapons.
[Defendant] raised his hand, and one of his fists was closed."
Defense counsel then said, "And [Gochenour] said, do you mind if
I pat you down?" and the court responded, "And that's when
[defendant] dropped [the suspected rocks of crack cocaine]."
The court gave counsel an opportunity to file legal
memoranda in support of and opposition to the motion. Following
receipt of these memoranda, the trial court granted the motion
to suppress.
II.
ANALYSIS
At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant's Fourth Amendment
rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380
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S.E.2d 656, 659 (1989). On appeal, we view the evidence in the
light most favorable to the prevailing party, here the
defendant, 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,
1659, 134 L. Ed. 2d 911 (1996)). However, we review de novo the
trial court's application of defined legal standards such as
probable cause and reasonable suspicion to the particular facts
of the case. See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.
Police-citizen encounters generally fall into one of three
categories. See 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). "The purpose of the Fourth Amendment
is not to eliminate all contact between the police and the
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citizenry, but 'to prevent arbitrary and oppressive interference
by enforcement officials with the privacy and personal security
of individuals.'" Greene v. Commonwealth, 17 Va. App. 606, 610,
440 S.E.2d 138, 140 (1994) (quoting United States v. Mendenhall,
446 U.S. 544, 553-54, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497(1980) (citation omitted)). Therefore, consensual 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 v.
Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870 (1992)
(quoting United States v. Wilson, 953 F.2d 116, 121 (4th Cir.
1991)). "'As long as the person to whom questions are put
remains free to disregard the questions and walk away, there has
been no intrusion upon that person's liberty or privacy as would
under the Constitution require some particularized and objective
justification.'" Greene, 17 Va. App. at 610, 440 S.E.2d at 140(quoting Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877). "A
seizure occurs when an individual is either physically
restrained or has submitted to a show of authority." McGee, 25
Va. App. at 199, 487 S.E.2d at 262.
"Whether a seizure has occurred . . . depends upon whether,
under the totality of the circumstances, a reasonable person
would have believed that he or she was not free to leave." Id.
at 199-200, 487 S.E.2d at 262. Other factors relevant under the
"totality of the circumstances" analysis include "'"the
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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."'" Greene, 17 Va. App. at 611 n.1, 440 S.E.2d at 141
n.1 (quoting Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877)
(other citation omitted).
A request for identification made during an otherwise
consensual encounter does not, standing alone, convert the
encounter into a seizure. See, e.g., INS v. Delgado, 466 U.S.
210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247 (1984).
However, in the case of the driver of a stationary automobile,
we have held "that 'what began as a consensual encounter quickly
became an investigative detention once the [officer] received
[the individual's] driver's license and did not return it to
him.'" Richmond v. Commonwealth, 22 Va. App. 257, 261, 468
S.E.2d 708, 710 (1996) (quoting United States v. Lambert, 46
F.3d 1064, 1068 (10th Cir. 1995)). In Richmond, a uniformed
deputy approached Richmond as he was seated in his parked
vehicle at a gas station and asked for Richmond's driver's
license. See id. at 259, 468 S.E.2d at 709. Richmond complied
and waited while the deputy ran a record check at his police
vehicle. See id. Upon returning to Richmond's car, the deputy
observed drug paraphernalia inside the vehicle. See id. We
held that Richmond had been seized before the officer observed
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the drug paraphernalia because "[a] reasonable person in
[Richmond's] circumstances would not have believed that he could
terminate the encounter once the officer retained the driver's
license and returned to his police vehicle to run a record
check." Id. at 261, 468 S.E.2d at 710. We also noted that, "as
a practical matter, if [Richmond] left the scene in his vehicle
while [the deputy] had his driver's license, [Richmond] would
have violated Code § 46.2-104, which prohibits a vehicle
operator from driving without a license." See id.
We have not previously had occasion to consider the nature
of an encounter in which an officer requests and retains
identification from a pedestrian. The Commonwealth contends on
brief, however, that our ruling in Richmond, and the earlier
case of Brown v. Commonwealth, 17 Va. App. 694, 440 S.E.2d 619(1994), is limited to cases in which "the citizen is located in
a car and his driver's license is taken by the officer so that
the driver would not feel free to leave because to do so would
violate the law" prohibiting driving without a license.
(Emphasis added). We disagree. Our holding in Richmond, as
quoted above, did not rest solely upon the single causal
connection the Commonwealth asserts. Rather we held that "[a]
reasonable person in [Richmond's] circumstances would not have
believed that he could terminate the encounter once the police
officer retained the driver's license and returned to his police
vehicle to run a record check" and "[f]urthermore, as a
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practical matter, [that] if [Richmond] left the scene in his
vehicle while [the deputy] had his driver's license, [Richmond]
would have violated Code § 46.2-104, which prohibits a vehicle
operator from driving without a license." Id. at 261, 468
S.E.2d at 710 (emphasis added). That Richmond's departure by
car without his driver's license would have violated the law was
not the singular factor in that case.
Under the reasoning of Richmond, we affirm the trial
court's ruling that appellant was seized when Officer Gochenour
requested appellant's identification and placed it in his belt
prior to asking appellant's permission to frisk him for weapons.
Other jurisdictions have reached this same conclusion. In Salt
Lake City v. Ray, 998 P.2d 274 (Utah Ct. App. 2000), for
example, two uniformed officers engaged in a consensual
encounter with Ray, a pedestrian, asked her for identification,
and she complied with the request by producing a state
identification card. See id. at 276. However, "[r]ather than
viewing the information and returning the card, [one of the
officers] retained [the identification]" and stepped away "to
check for warrants on his portable radio" while the other
officer asked for permission to search Ray's bag. Id.Although Ray acceded to a search of her bag, the court held
that the encounter became a seizure such that her accession to
the search was not truly consensual. See id. at 276, 278.
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Given the totality of the circumstances, it
is clear that a reasonable person in Ray's
position would not feel free to just walk
away, thereby abandoning her identification,
let alone to approach [the officer], take
back her identification, and then leave.
Instead, [the officer's] retention of her
identification during the warrant check
sufficiently restrained Ray's freedom of
movement that she was seized for purposes of
the Fourth Amendment.
Id. at 278 (footnotes omitted). Although the officer testified
he would have returned Ray's identification and allowed her to
leave if she had asked to do so, the court held that this fact
was irrelevant because it was not communicated to Ray. See id.at 268 n.1. It observed that "although an officer is not
required to inform a person he or she is free to leave during a
[consensual] encounter, such a warning might aid the officer
from unwittingly escalating the encounter to a [seizure]." Id.The Supreme Court of Tennessee reached a similar result in
State v. Daniel, 12 S.W.3d 420 (Tenn. 2000), in which an officer
approached four men standing around a vehicle in an unlighted
parking lot after dark. See id. at 423. The officer asked for
identification and retained it while he ran a computer check,
which revealed an outstanding warrant for Daniel. See id. The
court apparently placed no weight on whether the vehicle
belonged to any of the men or whether they were traveling in it.
See id. In holding that the retention of Daniel's
identification constituted a seizure, the court noted that,
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[w]ithout his identification, Daniel was
effectively immobilized. Abandoning one's
identification is simply not a practical or
realistic option for a reasonable person in
modern society. . . . [W]hen an officer
retains a person's identification for the
purpose of running a computer check for
outstanding warrants, no reasonable person
would believe that he or she could simply
terminate the encounter by asking the
officer to return the identification.
Id. at 427.
Although both Ray and Daniel involved an officer's
retention of an individual's identification for purposes of
running a check for outstanding warrants, the key issue in Ray
and Daniel was the retention itself and its effect on whether a
reasonable person in the owner's position would have believed
she or he was free to leave. See Ray, 998 P.2d at 278 & nn.2-3;
Daniel, 12 S.W.3d at 427. The court in Ray also noted that the
"critical time at issue [was] . . . when Ray consented to the
search." 998 P.2d at 278 n.3; see also Lambert, 46 F.3d at 1069
n.4. In appellant's case, he consented to the search at a time
when Gochenour, a uniformed and armed police officer whose
similarly clad partner stood nearby, asserted control over
appellant's person by retaining possession of his
identification. The evidence supports the trial court's
conclusion that a reasonable person in defendant's position
would have believed he was not free to leave.
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For these reasons, we affirm the ruling of the trial court
granting appellant's motion to suppress, and we dismiss the
indictment for possession of cocaine with intent to distribute.
Affirmed.
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