Commonwealth of Virginia v. Luis Enrique Merced ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0340-00-1 JUDGE SAM W. COLEMAN III
JUNE 29, 2000
LUIS ENRIQUE MERCED
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Edward L. Hubbard, Judge
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellant.
Leon R. Sarfan (Sarfan & Nachman, L.L.C., on
brief), for appellee.
Luis Enrique Merced was charged with possession of heroin.
The trial judge granted Merced's motion to suppress the evidence,
finding that Merced was illegally seized in violation of the
Fourth Amendment. Pursuant to Code § 19.2-398, the Commonwealth
appeals. For the reasons that follow, we reverse the trial
court's suppression order and remand the case to the circuit court
for further proceedings.
BACKGROUND
At approximately 11:25 a.m., Newport News Police Detectives
Stevenson and Best were patrolling in an unmarked patrol car an
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
area on 23rd Street, which Best described as "one of the largest
open-air drug markets in the Southeast Community." Stevenson and
Best observed a "hand-to-hand transaction" between Merced and
another individual. Best testified that she observed Merced give
the other individual money and, in return, the individual placed a
small object, which he had cupped in his hands, in Merced's hand.
Stevenson only saw Merced hand the other person some money.
After observing the transaction, Stevenson, who was in plain
clothes, stepped out of his vehicle, displayed his badge,
identified himself, and asked to speak with Merced. Merced said,
"Yes" and asked why Stevenson wanted to talk to him. Stevenson
informed Merced that he had observed the "hand-to-hand drug
transaction," to which Merced responded that he had only received
a phone number. Stevenson then asked Merced if "he commonly
[paid] for phone numbers at 23rd and Chestnut." Merced did not
respond. Stevenson requested to see the phone number, but Merced
stated that he had dropped it. Stevenson asked Merced if he could
show him where he had dropped the phone number. As the two walked
towards the area where Stevenson observed the hand-to-hand
transaction, Merced stated, "I bought heroin from that guy."
Stevenson asked Merced to produce the heroin, but Merced told him
that he thought he dropped it. While searching for the heroin,
Stevenson noticed drugs in Merced's vest pocket. Stevenson
reached into Merced's pocket, retrieved the heroin, placed Merced
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under arrest, and advised him of his Miranda rights. Merced
stated that he had been a heroin addict for ten years and was glad
that he was caught.
Stevenson testified that he did not block Merced's path and
that Merced was free to leave at any time. However, Best
testified that Merced was "detained" and not free to leave.
Relying upon our decision in McGee v. Commonwealth, 25 Va.
App. 193, 487 S.E.2d 259 (1997) (en banc), the trial court granted
Merced's motion to suppress. The trial judge noted that when
Stevenson approached Merced and stated that he saw Merced engaged
in a drug transaction, a reasonable person would not have believed
that he was free to leave. The trial judge stated that, "a
reasonable person, once they have been told that they have been
observed engaging in a crime, they're seized, and they pretty well
know they're seized at that point."
ANALYSIS
In reviewing a trial court's ruling on a motion to
suppress, "[w]e view the evidence in a light most favorable to
. . . the prevailing party below, and we grant all reasonable
inferences fairly deducible from that evidence." Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)
(citation omitted). "[W]e are bound by the trial court's
findings of historical fact unless 'plainly wrong' or without
evidence to support them." McGee, 25 Va. App. at 198, 487
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S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690,
699 (1996)). "However, we consider de novo whether those facts
implicate the Fourth Amendment and, if so, whether the officers
unlawfully infringed upon an area protected by the Fourth
Amendment." Hughes v. Commonwealth, 31 Va. App. 447, 454, 524
S.E.2d 155, 159 (2000) (en banc) (citation omitted).
Police-citizen confrontations generally
fall into one of three categories. 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.
McGee, 25 Va. App. at 198, 487 S.E.2d at 261 (citations
omitted).
We find that the defendant's encounter with the police was
consensual and, therefore, did not implicate the Fourth
Amendment.
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."
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Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870
(1992) (emphasis added) (citations omitted).
On the other hand, a person is "seized" for Fourth
Amendment purposes "if, in view of all of the circumstances
surrounding the incident, a reasonable person would have
believed that he was not free to leave." United States v.
Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J.).
"In order for a seizure to occur, the police must restrain a
citizen's freedom of movement by the use of physical force or
show of authority." Ford v. City of Newport News, 23 Va. App.
137, 142, 474 S.E.2d 848, 850 (1996) (citation omitted). Police
officers, however, are permitted to address questions to persons
on the street. See Mendenhall, 446 U.S. at 552-54. "As long as
the person to whom the questions are put remains free to
disregard the questions and walk away," no Fourth Amendment
violation has occurred. Id. at 554; see Florida v. Royer, 460
U.S. 491, 497 (1983) (plurality opinion). "Acquiescence in 'a
police request, which most citizens will do, does not negate the
"consensual nature of the response."'" Greene v. Commonwealth,
17 Va. App. 606, 610, 440 S.E.2d 138, 140-41 (1994) (citations
omitted). Therefore, what begins as a consensual encounter will
generally continue to be consensual until the person, by word or
action, withdraws his or her consent to continue the discussion,
or the officer, by word or action, makes clear that the person
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is being detained and is not free to leave regardless of the
initial consent.
In determining the nature of any encounter, we consider the
totality of the circumstances. In determining whether a person
is detained for Fourth Amendment purposes, we consider several
factors, including "'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.'" Commonwealth v. Satchell, 15 Va.
App. 127, 131, 422 S.E.2d 412, 414-15 (1992) (quoting
Mendenhall, 446 U.S. at 554). However, where a person
voluntarily consents to cooperate with police officers in their
investigation or to discuss a situation, the fact that the
person has agreed to talk with the officers is a significant
factor in determining whether the subsequent conduct, words, or
show of force or authority from the officers will transform the
consensual encounter into a detention.
The defendant, relying on McGee, argues that he was
unlawfully seized at the moment Stevenson informed him that he
observed Merced in a "hand-to-hand drug transaction." On these
facts, Merced's reliance on McGee is misplaced.
In McGee, police officers received a tip from an anonymous
informant that a "black male wearing a white t-shirt, black
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shorts, and white tennis shoes" was selling drugs on a
particular street corner. Three uniformed and armed police
officers were dispatched to the area in two marked police
cruisers. One of the officers approached McGee and "stated to
him that I had received a call that [he] was on this corner
selling drugs and [that he] matched the description" of the
individual who had been reported as selling drugs. The officer
then requested permission from McGee to "pat [him] down." McGee
stood and extended his arms in front of him with both fists
clenched. Believing that McGee might be concealing a weapon in
his closed fists, the officer asked him to open his hands.
McGee was holding money, a torn ziplock bag, and a "little piece
of white substance." The officers arrested McGee and, in a
search conducted incident to the arrest, the officer found
twenty-five bags containing crack cocaine in McGee's trousers.
We held that McGee was illegally seized when the three
officers approached him on the porch and told him that they had
a report that he was "on the corner selling drugs and [that he]
matched the description." We found that the encounter was not
consensual. We stated that "[w]hen the police expressly inform
an individual that they have received information that the
individual is engaging in criminal activity, the police 'convey
a message that compliance with their requests is required,'
Florida v. Bostick, 501 U.S. 429, 435 (1991), and 'that failure
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to cooperate would lead only to formal detention.'" McGee, 25
Va. App. at 200, 487 S.E.2d at 262. We held that "when 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."
Id. McGee, unlike the situation in the present case, did not
consent or agree to talk with the police officers. From the
outset, McGee was detained when he was informed that he had been
reported as having committed a crime of selling drugs.
McGee is distinguishable from and does not control the case
before us. Here, the encounter was consensual. It began as
consensual and continued to be such. After Merced agreed to
talk with Stevenson, Stevenson asked Merced about the drug
transaction that the officers had observed. That inquiry was
the purpose for which they had sought and obtained Merced's
consent. The officers were in plain clothes, and they had
displayed their badges to identify themselves as police
officers. The officers did not touch Merced, display their
weapons, block his path, or use threatening or intimidating
language or tone of voice. Cf. Langston v. Commonwealth, 28 Va.
App. 276, 282-83, 504 S.E.2d 380, 382-83 (1998) (holding that
encounter not consensual where three uniformed police officers
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on bicycle patrol pursued defendant, who was on foot, asking
repetitive and redundant questions until he stopped to talk with
them, at which time he was surrounded by the officers). Had
Merced not voluntarily agreed to talk with Stevenson and Best or
had Stevenson first confronted Merced with the accusation that
he had observed the "hand-to-hand drug transaction," the
situation may well have been controlled by our holding in McGee.
However, the encounter began as consensual and remained
consensual. Merced did not by words or actions withdraw his
consent, and the officers did nothing to indicate that he was
compelled or required to continue to talk with them. During the
conversation to which he had consented, he voluntarily offered
an explanation for the "hand-to-hand drug transaction" that
Stevenson observed. Merced did not refuse to answer any
questions or attempt to leave. See generally Richmond v.
Commonwealth, 22 Va. App. 257, 261, 468 S.E.2d 708, 709-10
(1996) (holding that consensual encounter between police officer
and defendant, who was lawfully parked in a parking lot, became
a seizure when officer retained defendant's driver's license
after running a check); Payne, 14 Va. App. at 88, 414 S.E.2d at
870 (holding that consensual encounter became a seizure when
defendant refused officer's request to open his fist and officer
grabbed defendant's hand, forcing it open). Stevenson continued
to ask questions of an investigatory nature, to which Merced
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voluntarily responded. See Royer, 460 U.S. at 497 (stating that
"law enforcement officers do not violate the Fourth Amendment by
merely approaching an individual on the street . . . by asking
him if he is willing to answer some questions, [or] by putting
questions to him if the person is willing to listen").
Moreover, the encounter continued to be consensual and
cooperative even while Merced accompanied Stevenson back to the
area where the transaction occurred. See generally Grinton v.
Commonwealth, 14 Va. App. 846, 849-50, 419 S.E.2d 860, 862
(1992) (holding that encounter consensual where defendants
remained at a toll booth to answer questions and subsequently
moved their vehicle off the road pursuant to officer's request
in order to search the vehicle).
We hold that where a citizen consents or agrees to talk
with a police officer and does not withdraw his or her consent,
either expressly or implicitly, the encounter remains consensual
until the officer, by physical force or show of authority,
restrains the citizen's freedom of movement and the reasonable
person would not feel free to leave.
Accordingly, we hold that the encounter was consensual and
did not implicate the Fourth Amendment. We, therefore, reverse
the trial court's ruling and remand for further proceedings.
Reversed and remanded.
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