Gerald McGhee v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
GERALD McGHEE
MEMORANDUM OPINION * BY
v. Record No. 0418-97-2 JUDGE SAM W. COLEMAN III
MARCH 3, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Jonathan David (Joseph D. Morrissey; James T.
Maloney; Morrissey, Hershner & Jacobs, on
brief), for appellant.
Ruth Ann Morken, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
City of Richmond police detectives searched Gerald McGhee as
he disembarked from a bus at a bus terminal in Richmond and
recovered from him several rocks of cocaine. McGhee was
convicted in a bench trial for possession of cocaine with the
intent to distribute. On appeal, McGhee contends the trial court
erred in denying his motion to suppress the cocaine, because, he
asserts, he was unlawfully seized in violation of the Fourth
Amendment, and he did not voluntarily consent to the search.
Finding no error, we affirm the conviction.
I. BACKGROUND
When the evidence is viewed in the light most favorable to
the Commonwealth, the party prevailing at trial, see Greene v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139-40
(1994), it proved that City of Richmond Police Detectives
Stephanie Ruffin and Ronnie Armstead observed McGhee, who was
carrying a blue duffel bag, and another person exit a bus at the
Richmond Greyhound Bus Terminal. As he exited, McGhee looked
around the terminal platform in a manner that Ruffin thought
suspicious. McGhee and the other man spoke briefly and then
separated.
Ruffin approached McGhee, identified herself, displayed her
badge, and asked McGhee if she could speak with him. McGhee
replied, "sure," and walked a few feet away from Ruffin.
Believing that McGhee was going to a place where he could speak
privately with her, Ruffin advised him that he "didn't have to go
anywhere" in order for them to talk. Ruffin then asked where
McGhee was going, to which he responded Charlotte. She next
asked McGhee for identification and observed McGhee's hand begin
to shake as he was handing it over. Ruffin told McGhee that he
was not under arrest or under detention. Ruffin then asked
McGhee if she could search his duffel bag. In response, McGhee
removed the bag from his shoulder and handed it to the detective.
Before searching the duffel bag, Ruffin asked McGhee if
Armstead could search his person while she searched the duffel
bag. Without speaking, McGhee turned and stepped towards
Armstead, lifted his arms, and held them in a position parallel
to the ground. Armstead told McGhee that he could put his arms
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down and that the search could be done behind the bus to avoid
embarrassment. McGhee followed Armstead to the other side of the
bus where Armstead patted down McGhee's outer clothing and felt
chunky, irregular shapes in the left side of McGhee's jacket
which Armstead believed to be narcotics. Armstead looked inside
the pocket and observed several rocks of cocaine. McGhee was
arrested and charged with possession of cocaine with the intent
to distribute. Ruffin testified that she did not complete a
search of McGhee's duffel bag because she heard McGhee being
handcuffed and arrested before getting into a search.
The trial court denied McGhee's motion to suppress the
cocaine ruling that McGhee had not been seized for Fourth
Amendment purposes by the detectives and that he voluntarily
consented to the personal search.
II. STANDARD OF REVIEW
When a trial court's denial of a motion to suppress is
reviewed on appeal, the burden is upon the appellant to
demonstrate that the trial court's ruling, considering the
evidence and reasonable inferences fairly deducible therefrom in
the light most favorable to the Commonwealth, constituted
"reversible error." Fore v. Commonwealth, 220 Va. 1007, 1010,
265 S.E.2d 729, 731 (1980).
"Ultimate questions of reasonable suspicion
and probable cause to make a warrantless
search" involve questions of both law and
fact and are reviewed de novo on appeal. In
performing such analysis, we are bound by the
trial court's findings of historical fact
unless "plainly wrong" or without evidence to
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support it, 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, 197-98, 487 S.E.2d 259,
261 (1997) (en banc) (quoting Ornelas v. United States, 116
S. Ct. 1657, 1659, 1663 (1996)). "We analyze a trial judge's
determination whether the Fourth Amendment was implicated by
applying de novo our own legal analysis of whether based on those
facts a seizure occurred." McGee, 25 Va. App. at 198, 487 S.E.2d
at 261.
III. INITIAL ENCOUNTER WITH POLICE
A person is "seized" within the meaning of the Fourth
Amendment if, "'in view of all of the circumstances surrounding
the incident, a reasonable person would have believed that he was
free to leave.'" Satchell v. Commonwealth, 20 Va. App. 641, 648,
460 S.E.2d 253, 256 (1995) (en banc) (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980)). A "voluntary or
consensual encounter between a police officer and a citizen does
not implicate the Fourth Amendment as long as 'a reasonable
person would understand that he or she could refuse to
cooperate.'" Lawrence v. Commonwealth, 17 Va. App. 140, 144, 435
S.E.2d 591, 594 (1993) (quoting United States v. Wilson, 953 F.2d
116, 121 (4th Cir. 1991)). In this vein, "[a]n encounter between
a law enforcement officer and a citizen in which the officer
merely identifies himself and states that he is conducting a
narcotics investigation, without more, is not a seizure within
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the meaning of the Fourth Amendment, but is, instead, a
consensual encounter." McGee, 25 Va. App. at 199, 487 S.E.2d at
262. In order for a "seizure" to occur, there must be some
physical force used or threatened or some demonstrable show of
police authority that would reasonably connote or communicate to
the person that he was being detained and was not free to leave.
Id.Considering the totality of the circumstances and granting
to the Commonwealth the reasonable inferences which flow from the
proven facts, we hold that McGhee's initial encounter with Ruffin
was consensual and was not a "seizure" that implicated the Fourth
Amendment. Ruffin approached McGhee and asked him if he would
speak with her. McGhee replied "sure." Ruffin did not display
her weapon. She did not touch McGhee or restrict his freedom of
movement. She informed McGhee that was he not being arrested or
detained. Although Ruffin did tell McGhee that he "didn't have
to go anywhere" when he moved away from her, the trial court
necessarily concluded that McGhee was attempting to leave but was
stepping to a place where he could speak privately with Ruffin.
Based on McGhee's response of "sure" and the fact that McGhee
remained there and cooperated, and in view of the fact that
Ruffin's statement "related that the conversation could take
place where they were [standing at the time] and there was no
need to move to another location for that conversation," we are
bound by the trial court's finding of historical fact. Viewing
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the evidence in the light most favorable to the Commonwealth,
there was no proof of use or threat of physical force or display
of authority from which a reasonable person could have believed
that he or she was not free to leave during Ruffin's inquiry, see
Baldwin v. Commonwealth, 243 Va. 191, 196-99, 413 S.E.2d 645,
648-49 (1992), nor did the evidence prove that McGhee withdrew or
intended to withdraw his consent to the encounter when he moved
away from Ruffin. See Lawrence, 17 Va. App. at 146, 435 S.E.2d
at 595 (recognizing that withdrawal of consent requires an
"unequivocal act or statement of withdrawal"). Therefore, we
find, as did the trial court, that McGhee was not "seized" by
Ruffin within the meaning of the Fourth Amendment during their
initial encounter.
IV. CONSENT TO SEARCH
A search conducted with the free and voluntary consent of
the accused is permissible under the Fourth Amendment. See
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). "[C]onsent
to a search . . . must be unequivocal, specific and intelligently
given . . . and is not lightly to be inferred." Elliotte v.
Commonwealth, 7 Va. App. 234, 239, 372 S.E.2d 416, 419 (1988).
Although consent may not be grounded on a person's failure to
resist police action, id., it may be inferred "from the actions
and behavior of the defendant," which connote agreement or a
willingness to cooperate. McGee v. Commonwealth, 23 Va. App.
334, 343, 477 S.E.2d 14, 19 (1996), rev'd on other grounds, 25
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Va. App. 193, 487 S.E.2d 259 (1997); see Hairston v.
Commonwealth, 216 Va. 387, 388-89, 219 S.E.2d 668, 669 (1975)
(per curiam). The Commonwealth "bears the burden of establishing
consent [to search] and this burden is heavier where the consent
is based on implication." Walls v. Commonwealth, 2 Va. App. 639,
645, 347 S.E.2d 175, 179 (1986).
In this case, McGhee's voluntary consent to Armstead's
personal search may be inferred by his conduct. Ruffin asked
McGhee if he would permit Armstead to search him. In direct
response, McGhee turned and walked toward Armstead while raising
his arms parallel to the ground as if to permit and facilitate a
search. McGhee's actions were an affirmative and unequivocal
grant of consent for Armstead to search him. See United States
v. Wilson, 895 F.2d 168, 172 (4th Cir. 1990) (holding that
defendant, without speaking, affirmatively consented to search of
his person by shrugging his shoulders and extending his arms as
response to officer's request to search); McGee, 23 Va. App. at
343-44, 477 S.E.2d at 19 (holding that seated defendant
voluntarily consented to search of his person by standing up and
extending his arms).
Upon de novo review, considering the evidence in the light
most favorable to the Commonwealth and according it all
reasonable inferences fairly deducible therefrom, we hold that
the cocaine was seized pursuant to McGhee's voluntary consent to
be searched after being approached by police detectives.
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Accordingly, the trial court did not err when it denied McGhee's
motion to suppress, and we affirm the conviction.
Affirmed.
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Benton, J., dissenting.
Because I believe the evidence proved that the initial
encounter between Detective Ruffin and Gerald McGhee was a
seizure under the Fourth Amendment and that Ruffin did not have a
reasonable, articulable suspicion justifying the investigatory
stop, I would reverse the trial judge's refusal to suppress the
evidence. Furthermore, I would hold that the Commonwealth did
not meet its burden of proving McGhee consented to the search of
his person.
I.
"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.'" Payne v. Commonwealth, 14 Va. App. 86, 88, 414
S.E.2d 869, 870 (1992) (citations omitted). "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." United
States v. Mendenhall, 446 U.S. 544, 554 (1979). Thus, the
encounter remains consensual only "as long as the citizen
voluntarily cooperates with the police." United States v.
Wilson, 953 F.2d 116, 121 (4th Cir. 1991).
An encounter is not consensual "if, in view of all of the
circumstances surrounding the incident, a reasonable person would
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have believed that he was not free to leave." Mendenhall, 446
U.S. at 554. "The 'principle embodied by the phrase "free to
leave" means the ability to ignore the police and to walk away
from them,' to '"feel free to decline the officers' requests or
otherwise terminate the encounter."'" Payne, 14 Va. App. at 89,
414 S.E.2d at 870 (citations omitted). "Fourth Amendment
scrutiny is triggered . . . the moment an encounter '"loses its
consensual nature."'" Id. at 88, 414 S.E.2d at 870 (citations
omitted).
The evidence proves that after McGhee gave his ticket to the
bus driver and was walking to board a bus at Gate 17, Detective
Ruffin approached him, displayed her badge, and asked if she
could speak with him. Although McGhee said "sure," he moved away
from Ruffin. When he had gone "approximately five feet," Ruffin
told McGhee that "he didn't have to go anywhere." In response to
this comment, McGhee stopped walking. Ruffin then began
questioning McGhee.
Although Ruffin's initial approach to McGhee was an attempt
to have a consensual encounter, the consensual aspect of this
encounter disappeared when McGhee started to walk away from
Ruffin and Ruffin told McGhee not to "go anywhere." Under such
circumstances, a reasonable person would not feel free to leave,
to ignore the officer, or to continue to walk away. For Fourth
Amendment purposes, McGhee was then "seized" by the officer. See
Payne, 14 Va. App. at 89, 414 S.E.2d at 870. When McGhee stopped
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a seizure occurred because he "submitted to [the officer's] show
of authority." McGee v. Commonwealth, 25 Va. App. 193, 199, 487
S.E.2d 259, 262 (1997) (en banc).
In characterizing these events, Ruffin said she spoke to
halt McGhee, "[b]elieving that McGhee was going to a place where
he could speak privately with her." (Emphasis added). The
officer's subjective belief must give way to the objective facts.
Ruffin stopped McGhee as he was walking to his bus. He had the
right to walk away. Indeed, the "'freedom to leave means
fundamentally the freedom to break off contact, in which case
officers must, in the absence of objective justification, leave
the passenger alone.'" Wilson, 953 F.2d at 122 (citation
omitted). Furthermore, Ruffin's subjective belief does not
negate the fact that she told McGhee not to walk away. From this
evidence, it is just as likely that McGhee was walking away from
the officer to board his bus and terminate the attempted
consensual encounter.
When Ruffin told McGhee "he didn't have to go anywhere,"
this was a show of authority such that McGhee was not free to
leave. Whatever Ruffin may have subjectively believed, McGhee
did not tell her that he wanted a private conversation. Acting
on her subjective belief, Ruffin made a demonstrable show of
authority when she told McGhee to remain. She then asked him to
show her some identification. These circumstances fail to prove
the encounter was consensual. Therefore, I would hold that
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McGhee was seized for purposes of the Fourth Amendment when he
started to walk away and Ruffin told him that he didn't have to
go anywhere.
II.
"The dispositive question then is whether the officers had a
reasonable basis to suspect [McGhee] of criminal activity to
justify the investigatory stop." McGee, 25 Va. App. at 201, 487
S.E.2d at 263. "It is well-established that an investigatory
stop may be initiated only when an officer has 'a reasonable
suspicion, based on objective facts, that the individual is
involved in criminal activity.'" Riley v. Commonwealth, 13 Va.
App. 494, 496, 412 S.E.2d 724, 725 (1992) (citation omitted).
The officer's testimony of the facts and observations that gave
rise to the stop must amount to more than an "inchoate and
unparticularized suspicion or 'hunch.'" Terry v. Ohio, 392 U.S.
1, 27 (1968). "When examining the officer's articulable reasons
for stopping a person, we examine the objective reasonableness of
the officer's behavior rather than the officer's subjective
belief that the conduct indicates criminal activity." Riley, 13
Va. App. at 496-97, 412 S.E.2d at 725.
The seizure in this case was unlawful because Ruffin lacked
a reasonable articulable suspicion that criminal activity was
afoot to stop McGhee. The officers did not testify as to any
conduct by McGhee that gave rise to a reasonable suspicion that
McGhee was engaged in criminal conduct. Ruffin's stop of McGhee
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stands only upon her observation of McGhee exiting a bus from
Washington, D.C. carrying a blue duffel bag. After McGhee spoke
to another man who exited the same bus, McGhee went to board
another bus. Ruffin had not received any tips about McGhee. She
did not see anyone commit a crime in her presence. She did not
suspect that McGhee had just committed a crime. In fact, she
admitted that one of the reasons she decided to approach McGhee
was "because of the mannerisms and behavior of another
individual."
"Manifestly, this conduct falls below activity necessary to
justify a reasonable suspicion that a violation of law had
occurred or was occurring." Zimmerman v. Commonwealth, 234 Va.
609, 612, 363 S.E.2d 708, 710 (1988); see also Riley, 13 Va. App.
at 497-99, 412 S.E.2d at 726-27. Accordingly, I would hold that
because the seizure was unlawful, any evidence obtained during
the subsequent "consent" search should have been suppressed as
"fruit of the poisonous tree." Commonwealth v. Ealy, 12 Va. App.
744, 754, 407 S.E.2d 681, 687 (1991).
III.
I would also hold that McGhee did not consent to a search of
his person. "It is well settled that the burden is on the
Commonwealth to establish an exception to the warrant
requirement." Walls v. Commonwealth, 2 Va. App. 639, 645, 347
S.E.2d 175, 178 (1986). "'Consent to a search . . . must be
unequivocal, specific and intelligently given . . . and it is not
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lightly to be inferred.'" Elliotte v. Commonwealth, 7 Va. App.
234, 239, 372 S.E.2d 416, 419 (1988) (quoting Via v. Peyton, 284
F.Supp. 961, 967 (W.D. Va. 1968)). While "consent need not be
given orally but can be determined from the actions and behavior
of the defendant," McGee v. Commonwealth, 23 Va. App. 334, 343,
477 S.E.2d 14, 19 (1996), rev'd on other grounds, 25 Va. App.
193, 487 S.E.2d 259 (1997), "the [Commonwealth] . . . bears the
burden of establishing consent and this burden is heavier where
the alleged consent is based on an implication." Walls, 2 Va.
App. at 645, 374 S.E.2d at 178. In this case, there is no
evidence that consent was ever given.
Nothing in the record proves that McGhee consented to the
search of his person by Detective Armstead. The evidence proves
that McGhee "never uttered a single word in regard to [Ruffin's]
inquiry to make a search." When Ruffin ordered McGhee to stop
and asked to search the contents of McGhee's bag, McGhee did not
say anything. "He took the duffel bag off his right shoulder and
handed it to [Ruffin]." Ruffin then asked McGhee if her partner,
Detective Armstead, could search his person. She pointed in the
direction of Armstead who was standing about twelve feet away
behind McGhee. When McGhee turned and looked where Ruffin
pointed, Armstead "closed in" on McGhee, stopping when he was
about two to three feet away. Ruffin said McGhee's "eyes
bulged." This was the first time McGhee had seen Armstead who
was dressed in plain clothes. McGhee then turned back to Ruffin.
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Ruffin identified Armstead to McGhee and told Armstead to
"check [McGhee's] person." McGhee turned, spread his arms out so
that they were parallel to the ground, and "took a step" toward
Armstead. Armstead never asked McGhee if he could search him.
McGhee made no statements to Armstead. Armstead told McGhee to
put his arms down. Armstead then asked McGhee "Do you want me to
do the search here or over in another area?" McGhee did not
respond. Armstead asked him to step to the other side of the bus
and walked toward an empty bus next to the one McGhee had been
standing in line to board. McGhee followed. Armstead said that
if McGhee had left instead of following him he would have
followed McGhee and detained him. Armstead searched McGhee and
discovered cocaine in McGhee's pocket.
Both officers testified that McGhee did not verbally assent
to Armstead's search of his person. Furthermore, McGhee's
conduct did not give any objective, reasonable indication that
McGhee agreed to the officers' search. Whenever consent is not
explicitly given, "the existence of consent to search is not
lightly to be inferred." United States v. Patacchia, 602 F.2d
218, 219 (9th Cir. 1979). The burden of proving consent "cannot
be discharged by showing no more than acquiescence to a claim of
lawful authority." Bumper v. North Carolina, 391 U.S. 543,
548-49 (1967). See Crosby v. Commonwealth, 6 Va. App. 193, 199,
367 S.E.2d 730, 733 (1980). Although McGhee's conduct in turning
toward Armstead "may well have signaled acquiescence, it did not
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show consent." Miranda v. State, 375 S.E.2d 295, 298 (Ga. Ct.
App. 1988). Ruffin told Armstead to "check [McGhee's] person."
At most, McGhee's conduct was a sign of passivity or a show of
respect for the newly discovered officer's authority. "Conduct
that is questionable or clearly indicates mere acquiescence to
perceived police authority will not support a search based on the
party's alleged consent, regardless of the lack of coercion."
Evans v. State, 804 S.W.2d 730, 734 (Ark. Ct. App. 1991).
Because the evidence proves that McGhee was "seized" for
purposes of the Fourth Amendment, that the officers did not have
a reasonable articulable suspicion to stop McGhee, and that
McGhee did not give his consent to a search of his person, I
would reverse the trial judge's refusal to suppress the evidence.
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