Glenn Antony Barcroft, Jr. v. Commonwealth ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
GLENN ANTONY BARCROFT, JR.
MEMORANDUM OPINION * BY
v. Record No. 0009-98-2 JUDGE LARRY G. ELDER
FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Susan D. Hansen, Deputy Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Glenn Antony Barcroft, Jr., (appellant) appeals from his
bench trial conviction for possession of cocaine in violation of
Code § 18.2-250. On appeal, he contends the trial court
erroneously denied his motion to suppress. He argues that the
officers violated his rights under the United States and Virginia
Constitutions because they did not have the reasonable suspicion
necessary to justify a seizure and search. We hold that the
contact was a consensual encounter rather than a seizure and that
appellant consented to the search. Therefore, we affirm
appellant's conviction.
At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
or seizure did not violate the defendant's Fourth Amendment
rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380
S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App.
671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the
evidence in the light most favorable to the prevailing party,
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 Shears v. Commonwealth, 23 Va. App. 394, 398, 477
S.E.2d 309, 311 (1996); see also Ornelas, 517 U.S. at 699, 116
S. Ct. at 1659.
Appellant argues first that he was seized for purposes of
the Fourth Amendment prior to the frisk. We disagree.
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
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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
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.
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"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
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).
Here, Officers Ernst and Rogers asked appellant if he minded
their stopping him, to which he responded that he did not. The
officers did not touch appellant, block his exit route or
restrain him in any way before receiving his consent. Although
the officers activated their flashing lights, they did so only
for safety reasons and only after appellant had said he did not
mind talking to the officers and would consent to be searched.
Therefore, the evidence supports a finding that appellant
consented to a voluntary encounter. See Williams v.
Commonwealth, 21 Va. App. 263, 266, 463 S.E.2d 679, 681 (1995)).
Because the encounter was voluntary, the police did not need
reasonable articulable suspicion of criminal activity to justify
the encounter.
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Our recent holding in McGee, 25 Va. App. 193, 487 S.E.2d
259, does not require a different result. 1 In that case, we held
that where an officer indicates to a particular individual that
he has received information that the individual himself is
engaging in criminal activity, the encounter may become a
seizure. See id. at 200, 487 S.E.2d at 262. However, we also
noted that "[a]n encounter between a law enforcement officer and
a citizen in which the officer merely identifies himself and
states he is conducting a narcotics investigation, without more,
is not a seizure within the meaning of the Fourth Amendment but
is, instead, a consensual encounter." Id. at 199, 487 S.E.2d at
262.
In McGee, one of the officers specifically told the suspect
that he was the object of their investigation, not merely that
they were conducting a general investigation. 25 Va. App. at
201, 487 S.E.2d at 263. Additional evidence in McGee "proved
that three uniformed officers arrived in two marked police
cruisers and confronted the [suspect]," and "the trial court,
which found that a seizure had occurred, had the opportunity to
evaluate the tone of voice that [the officer] said he used in
speaking to the [suspect]." Id.1
Appellant also relies on the recent decision in Parker v.
Commonwealth, 255 Va. 96, 496 S.E.2d 47 (1998) (plurality op.).
In Parker, however, only two justices joined Justice Hassell's
opinion. The remaining four justices concurred only "in the
result." Id. at 107, 496 S.E.2d at 53. In any event, the facts
in Parker are distinguishable from those in appellant's case.
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In appellant's case, by contrast, two uniformed police
officers arrived in one marked police car, and appellant
consented to the encounter before the officers mentioned they
were conducting a narcotics investigation. Further, the evidence
is uncontradicted that the officers told appellant only that they
had received information "that there was a drug deal going on,"
not that appellant had been identified as a suspect. Finally,
based on this evidence, the trial court found that appellant was
not seized. These facts distinguish appellant's case from McGee.
Appellant also contends that he did not voluntarily consent
to the frisk. Again, we disagree.
"A consensual search is reasonable if the search is within
the scope of the consent given." Grinton v. Commonwealth, 14 Va.
App. 846, 850, 419 S.E.2d 860, 862 (1992). The scope of the
consent is viewed under a standard of "'objective'
reasonableness--what would the typical reasonable person have
understood by the exchange between the officer and the suspect?"
Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04,
114 L. Ed. 2d 297 (1991). A suspect may consent to an officer's
request to search simply by raising his hands to facilitate the
search. See Bynum v. Commonwealth, 23 Va. App. 412, 416, 417,
477 S.E.2d 750, 752, 753 (1996). "[T]he State has the burden of
proving that the necessary consent was obtained and that it was
freely and voluntarily given . . . ." Florida v. Royer, 460 U.S.
491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983). "Both
the presence of consent to search and any related limitations are
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factual issues for the trial court to resolve after consideration
of the attendant circumstances." Bynum, 23 Va. App. at 418, 477
S.E.2d at 753.
Viewed in the light most favorable to the Commonwealth, the
evidence amply supported the finding that appellant voluntarily
consented to the search of his person. He did so, first, by
saying that he did not mind if the officers searched him and,
second, by dismounting his bicycle and placing his hands on the
police car without being asked in order to facilitate the frisk.
Although the officers mentioned their narcotics investigation
prior to obtaining appellant's consent to search, the evidence is
uncontradicted, as outlined above, that they told appellant only
that they had received information "that there was a drug deal
going on," not that appellant had been identified as a suspect.
Therefore, no evidence in the record invalidates the consent
appellant gave to the search. Pursuant to that search, Ernst
felt a lump in appellant's waistband, which appellant admitted
was "dope."
Because the evidence supports the trial court's finding that
the officers did not seize appellant and that he consented to the
search, we affirm appellant's conviction.
Affirmed.
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