Sean William Morris v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Alexandria, Virginia
SEAN WILLIAM MORRIS
MEMORANDUM OPINION * BY
v. Record No. 2220-97-4 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Bonnie H. Hoffman, Assistant Public Defender
(Office of the Public Defender, on briefs),
for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Sean William Morris ("appellant") appeals his conviction by
bench trial of possessing burglarious tools with the intent to
commit larceny in violation of Code § 18.2-94. On appeal,
appellant contends that the police illegally detained and
searched him without satisfying the constitutional prerequisites
for doing so. Appellant also argues the police illegally
obtained his statements without informing him of his
constitutional rights. We disagree and affirm appellant's
conviction.
Under familiar principles, we view the evidence in the light
most favorable to the Commonwealth, the party prevailing below,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and grant all reasonable inferences fairly deducible therefrom.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991). The trial court's findings will not be disturbed
unless plainly wrong, id., and the appellant carries the burden
to show reversible error. Reynolds v. Commonwealth, 9 Va. App.
430, 436, 388 S.E.2d 659, 663 (1990). Bearing this in mind, we
set forth the relevant facts below.
At approximately 1:07 a.m. on October 24, 1996, Loudoun
County Sheriff's Department Deputies, Jeffrey Lockhart, Allen
Gabrielli, and Christopher Bailey, responded to a dispatch that
two individuals, on foot, were suspected of auto tampering in a
residential townhome area. Each deputy wore his uniform and
badge of authority. A few minutes after receiving the dispatch,
Lockhart arrived on the scene and spoke with Chris Nowak, the
person who had reported the incident. Nowak reported that, as he
was leaving his house, he saw someone crouched behind a vehicle
in the parking lot. After yelling out that he would call the
police, Nowak saw a second person near another vehicle and heard
one of the individuals yell, "Run." Both individuals ran toward
a wooded area of the development and disappeared.
As Lockhart finished speaking with Nowak, Bailey arrived
with his K-9, Caesar. Lockhart showed Bailey the area through
which the suspects had fled. Using Caesar to track, Bailey found
appellant hiding against the side of a house behind evergreen
bushes. Bailey found appellant approximately 200 to 300 yards
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from the spot where the suspects were last seen and within 5 to 6
minutes of giving chase from that point. Bailey ordered
appellant to lie on the ground, placed him in handcuffs, and
guarded him while waiting for back-up to arrive. Aware the
second suspect might be nearby, Bailey swept the surrounding area
with his flashlight and asked appellant where his friend had
gone. Appellant responded by indicating the direction the other
suspect went.
When Deputy Gabrielli arrived in his cruiser approximately
one minute after Bailey's call for back-up, he helped appellant
to his feet and brought him to the vehicle. On the way,
Gabrielli asked, "What are you doing over here hiding in the
bushes?" Appellant responded he had been walking back from a
party. He also said that he was on the way to the store to get
something to eat. Gabrielli informed appellant he was going to
be detained, but that he was not under arrest at that time.
Before Gabrielli placed appellant inside his vehicle, the
deputy asked whether he had any weapons on his person. Appellant
stated he had a knife at his waist. Gabrielli found and removed
the knife. Gabrielli then patted down the outside of appellant's
clothing and found a flashlight, a pair of gloves, and a punch, a
device with a three to four inch cylindrical handle containing a
spring-loaded metal rod with a point on the end.
Gabrielli placed appellant inside his cruiser and continued
to search the area with Bailey. The cruiser's doors were locked
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from the outside and the windows closed. Appellant remained
inside the cruiser, handcuffed, for approximately thirty minutes,
after which time the police released him.
I. LAWFULNESS OF APPELLANT'S DETENTION
Appellant first contends that the police arrested him in
violation of his Fourth and Fourteenth Amendment rights.
Appellant argues that police actions during their investigative
stop were so intrusive under the circumstances that they enlarged
the scope of investigative activity into an arrest without
probable cause. We disagree.
While it is true that police procedures during a Terry stop
can be so intrusive as to trigger the full protection of the
Fourth and Fourteenth Amendments, Hayes v. Florida, 470 U.S. 811,
815-16 (1985), there is no "litmus-paper test for distinguishing
. . . when a seizure exceeds the bounds of an investigative
stop." Florida v. Royer, 460 U.S. 491, 506 (1983). Instead,
when evaluating whether an investigative stop is unreasonable,
common sense and ordinary human experience should take precedence
over rigid criteria. United States v. Sharpe, 470 U.S. 675, 685
(1985); DePriest v. Commonwealth, 4 Va. App. 577, 586, 359 S.E.2d
540, 544 (1987), cert. denied, 488 U.S. 985 (1988). Although the
"investigative methods employed should be the least intrusive
means reasonably available to verify or dispel the officer's
suspicion in a short period of time," the scope of the intrusion
permitted will vary with each case. Royer, 460 U.S. at 500. As
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such, even complete deprivations of a suspect's liberty "do not
convert a stop and frisk into an arrest so long as the methods of
restraint used are reasonable to the circumstances." Thomas v.
Commonwealth, 16 Va. App. 851, 857, 434 S.E.2d 319, 323 (1993)
(citing United States v. Crittendon, 883 F.2d 326, 329 (4th Cir.
1989)) (finding that a seizure was not the functional equivalent
of an arrest despite the use of handcuffs and placement of
defendant in a police cruiser when lone officer suspected
defendant of recent, violent criminal activity and encountered
him late at night), aff'd on reh'g en banc, 18 Va. App. 454, 444
S.E.2d 275 (1994).
Here, as police obtained the challenged evidence prior to
placing appellant in the cruiser, we limit our assessment of
their actions to that period of time and find that the detention
did not constitute an arrest. Responding to a call of possible
auto tampering by two individuals shortly after 1:00 a.m., Deputy
Bailey found appellant concealing himself behind shrubbery
minutes after Caesar picked up his scent. Aware that there were
two possible suspects involved, Bailey handcuffed and guarded
appellant until other deputies arrived. Given the facts that
appellant had apparently attempted to avoid police detection by
concealing himself and was suspected of participating in recent
criminal activity, Deputy Gabrielli asked appellant if he
possessed any weapons and patted down his clothing after he
responded in the affirmative. Under such circumstances, this
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conduct was not so unreasonable or intrusive as to constitute an
arrest.
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II. REASONABLENESS OF THE PAT-DOWN
We next address whether Deputy Gabrielli had reasonable
suspicion to pat-down appellant's clothing during the
investigative stop. We hold that he did.
An officer may conduct a pat-down search of a suspect's
outer clothing if the officer reasonably believes, based on
specific and articulable facts, that the suspect might be armed
and dangerous. Hilliard v. Commonwealth, 17 Va. App. 23, 25, 434
S.E.2d 911, 913 (1993). In determining whether to conduct a
pat-down, the officer is "entitled to rely upon 'the totality of
the circumstances--the whole picture.'" Peguese v. Commonwealth,
19 Va. App. 349, 351, 451 S.E.2d 412, 413 (1994) (citations
omitted). The officer does not have to be absolutely certain
that a suspect is armed so long as "a reasonably prudent man in
the [same] circumstances would be warranted in the belief that
his safety or that of others [is] in danger." Terry v. Ohio, 392
U.S. 1, 27 (1968); Lansdown v. Commonwealth, 226 Va. 204, 211,
308 S.E.2d 106, 111 (1983), cert. denied, 465 U.S. 1104 (1984).
"Among the circumstances to be considered in
connection with this issue are the
'characteristics of the area' where the stop
occurs, the time of the stop, whether late at
night or not, as well as any suspicious
conduct of the person accosted such as an
obvious attempt to avoid officers or any
nervous conduct on the discovery of their
presence." To this, we add the character of
the offense which the individual is suspected
of committing as a circumstance which the
officer may consider.
Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 85
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(citations omitted).
Here, the investigative stop occurred late at night
following a report of two suspects lurking in a parking lot where
earlier incidents of auto tampering had occurred. Based on his
suspicion that appellant was involved in auto tampering,
Gabrielli had reason to believe that he might be in possession of
instruments that could be used as weapons. See Nelson v.
Commonwealth, 24 Va. App. 823, 827, 485 S.E.2d 673, 674-75 (1997)
(holding that it is not unreasonable for an officer to conduct a
pat-down search when burglary is the crime for which the suspect
is lawfully detained). Furthermore, by concealing himself behind
bushes, appellant's conduct indicated an obvious attempt to avoid
police. Finally, prior to the initiation of the pat-down,
appellant told Gabrielli that he carried a knife. Thus Deputy
Gabrielli had reasonable suspicion, based on specific and
articulable facts, to search appellant.
III. NECESSITY OF MIRANDA WARNINGS
Appellant finally contends that his statements to police
should have been suppressed by the trial court because the
officers improperly interrogated him without administering proper
warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
Unless Miranda warnings have been given, any statements a suspect
makes during custodial interrogation are inadmissible in the
prosecution's case-in-chief. Berkemer v. McCarty, 468 U.S. 420,
434 (1984). After applying the appropriate Fifth Amendment
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analysis to determine whether appellant's encounter with police
rose to the level of "custodial interrogation," we find no error
in the failure to give Miranda warnings in this case.
When determining whether a suspect is "in custody" for
Miranda purposes, "the ultimate inquiry is simply whether there
is a 'formal arrest or restraint on freedom of movement' of the
degree associated with a formal arrest." California v. Beheler,
463 U.S. 1121, 1125 (1983) (per curiam) (citation omitted). This
determination depends "on the objective circumstances of the
interrogation, not on the subjective views harbored by either the
interrogating officers or the person being questioned."
Stansbury v. California, 511 U.S. 318, 323 (1994). Among the
circumstances we consider are whether a suspect is questioned in
familiar or neutral surroundings, the number of officers present,
the amount of force used by officers to detain the individual,
the degree of physical restraint, and the duration and character
of the interrogation. Wass v. Commonwealth, 5 Va. App. 27,
32-33, 359 S.E.2d 836, 839 (1987). When officers have a
reasonable and articulable suspicion that a suspect is engaged in
illegal activity they may ask a limited number of questions to
confirm or dispel their suspicion. Cherry v. Commonwealth, 14
Va. App. 135, 141, 415 S.E.2d 242, 245 (1992). Moreover, the
length of time between a suspect's detention and the commencement
of questioning is a relevant circumstance. See id. (considering
the fact that a suspect had only been detained a short period of
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time before officers asked if they could search his car as an
indication that the suspect was not subjected to custodial
interrogation).
There is no bright-line test, however, to distinguish a mere
investigative stop from the commencement of custodial
interrogation. During investigative stops, brief but complete
deprivations of the suspect's liberty are valid, and the police
are permitted to use methods of restraint that are reasonable
under the circumstances. Thomas, 16 Va. App. at 857, 434 S.E.2d
at 323. As such, "'drawing weapons, handcuffing a suspect,
placing a suspect in a patrol car for questioning, or using or
threatening to use force does not necessarily elevate a lawful
stop into a custodial arrest for Miranda purposes.'" Harris v.
Commonwealth, 27 Va. App. 554, 566, 500 S.E.2d 257, 263 (1998)
(quoting United States v. Leshuk, 65 F.3d 1105, 1109-10 (4th Cir.
1995)). Rather, what distinguishes Terry stops from custodial
interrogation is that such stops "'must last no longer than
necessary to verify or dispel the officer's suspicion.'" Id.(quoting Leshuk, 65 F.3d at 1109). See Commonwealth v. Milner,
13 Va. App. 556, 558-59, 413 S.E.2d 352, 353-54 (1992) (holding
that a detention on a public street for the purpose of holding a
suspect for identification did not require warnings, even though
the suspect was not free to leave and was searched for weapons).
In this case, the deputies' detention and questioning of
appellant did not rise to the level of custodial interrogation
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and, thus, did not require them to give Miranda warnings. At no
time did the deputies inform appellant that he was under arrest.
On the contrary, their actions following appellant's
apprehension were directed toward confirming or dispelling their
suspicions regarding his involvement in illegal activity and
assuring their own personal safety. The deputies' questioning
was brief and followed immediately after the detention. Thus, we
affirm the trial court's refusal to suppress appellant's
statements.
For the foregoing reasons, we affirm appellant's conviction.
Affirmed.
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