Santarejai Antarinn Brown v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
SANTAREJAI ANTARINN BROWN
MEMORANDUM OPINION * BY
v. Record No. 1893-96-1 JUDGE SAM W. COLEMAN III
JULY 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Jerome B. Friedman, Judge
Andrew G. Wiggin (Asha S. Pandya, Assistant
Public Defender; The Law Office of Donald E.
Lee, Jr. and Associates, on briefs), for
appellant.
Ruth Ann Morken, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
In this criminal appeal, we determine whether the
defendant's Fourth Amendment right to be free from unreasonable
seizures and his Fifth Amendment right to be given Miranda
warnings were violated. In the trial court, the defendant
initially moved to suppress the evidence on the grounds that he
was seized without probable cause or reasonable suspicion and
that he was interrogated by the police without being informed of
his Miranda rights. The trial judge denied the defendant's
motion and, after entering conditional guilty pleas, the
defendant was convicted for possession of cocaine with intent to
distribute, conspiracy to distribute cocaine, and possession of a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
firearm while in possession of cocaine. Finding no error, we
affirm the convictions.
On April 12, 1995, a SWAT team from the Virginia Beach
Police Department was executing a search warrant for cocaine and
weapons at 618 Fox Creek Court in Virginia Beach. Officer W. E.
Hodges, Jr. was assigned by the SWAT team to "cover the outer
perimeter" of the house. Around 10:30 a.m., he and Officer Spain
were stationed in their vehicle approximately one half block from
the house, but could not see the house from their position.
Officer Hodges was in radio contact with the officers who
were executing the search warrant and was informed that "there
was a possibility that some people" had run out the back of the
house and were at large in the neighborhood, but was not given a
description of the people. 1 After receiving this report,
Officers Hodges and Spain rode around the neighborhood "to see if
[they] could see anything that was suspicious." Approximately
five to ten minutes later, they saw the defendant walking in the
opposite direction from the house. He was "moving his head
looking around [from] side to side," was wearing socks but no
shoes and had one hand under his shirt "like [it] was near his
waistband."
1
The defendant contends that no evidence in the record
established that Officer Hodges received the information
concerning suspects fleeing the house from the officers
conducting the search. This argument is without merit. The
record reflects that Officer Hodges testified that he was in
radio contact with one of the narcotics detectives executing the
search warrant and was informed of the possibility that people
had run out the back of the house.
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Officer Hodges exited the police vehicle and approached
Brown cautiously, identifying himself as a police officer and
telling Brown several times to put his hands where Officer Hodges
could see them. Officer Hodges conducted a brief pat down and
asked Brown "where he was coming from." Brown told him that he
was coming from his house and that he had left because "somebody
was breaking into" the house. Officer Hodges then told Brown
that he was being detained until the officer in charge of the
search could come ask him some questions. Officer Hodges asked
Brown if there was anything dangerous in the house. Brown told
him that there was a .22 caliber gun in an upstairs closet.
Although Hodges could not remember whether they ever specifically
mentioned 618 Fox Creek, Hodges understood that to be the house
they were discussing.
Approximately fifteen minutes after Officer Hodges detained
the defendant, Detective Hayden, the officer in charge of
executing the search warrant, arrived and asked Brown how many
people had been in the house and who they were. Detective Hayden
then asked Brown to return to the house with him and Brown
voluntarily agreed. On the way to the house, Detective Hayden
advised Brown of his Miranda rights and asked him again why he
had left the house and to identify anyone who had been in the
house when the police originally arrived to execute the search
warrant.
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THE SEIZURE
On appeal, determinations of reasonable suspicion and
probable cause require de novo review. Ornelas v. United States,
116 S. Ct. 1657, 1663 (1996). However, a trial court's findings
of historical fact are reviewed only for credible evidence to
support them and "due weight" must be given to "inferences drawn
from those facts by resident judges and local law enforcement
officers," and to "a trial court's finding that [an] officer was
credible and [that his or her] inference was reasonable." Id.
If a police officer has reasonable, articulable suspicion
that a person is engaging in, or is about to engage in, criminal
activity, he may detain the person to conduct a brief
investigation without violating the Fourth Amendment's protection
against unreasonable searches and seizures. See Terry v. Ohio,
392 U.S. 1, 27 (1968). The reason for stopping an individual
need not rise to the level of probable cause, but must be more
than an "inchoate and unparticularized suspicion or 'hunch.'"
Id. at 27. When determining whether an officer's suspicion is
reasonable, we look to the totality of the circumstances, see
United States v. Sokolow, 490 U.S. 1, 8 (1989), and view the
facts "objectively through the eyes of a reasonable police
officer with the knowledge, training and experience of the
investigating officer." Murphy v. Commonwealth, 9 Va. App. 139,
144, 384 S.E.2d 125, 128 (1989).
In this case, we hold that Officer Hodges' investigatory
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detention of Brown was justifiable and based upon reasonable,
articulable suspicion. Officer Hodges knew that there was a
possibility that people had run from the house. Because "a
warrant to search . . . carries with it the limited authority to
detain the occupants of the premises while a proper search is
conducted," Michigan v. Summers, 452 U.S. 692, 705 (1981), the
police were justified in detaining Brown to determine whether he
had fled the house and to determine who else may have been in the
house at the time. See Williams v. Commonwealth, 4 Va. App. 53,
59, 354 S.E.2d 79, 85 (1987) (holding that a valid Terry stop
occurred when officers stopped a suspect who had just left a
house the police were searching pursuant to a warrant). Officer
Hodges saw Brown walking down the street in the neighborhood
within minutes of hearing that persons may have fled the home.
Brown was wearing socks, but no shoes. He was looking from side
to side and had his hand in his waistband. Based on the totality
of the circumstances, Officer Hodges had reasonable suspicion to
detain Brown in order to briefly investigate whether he had or
was committing a crime.
MIRANDA WARNINGS
The necessity of giving Miranda warnings arises only when an
individual is questioned by the police while the person is in
custody. Smith v. Commonwealth, 219 Va. 455, 470, 248 S.E.2d
135, 144 (1978), cert. denied, 441 U.S. 967 (1979). When
determining whether a suspect is in custody at the time of police
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interrogation, we look to the totality of the circumstances;
however, 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) (quoting Oregon v. Mathiason, 429 U.S.
492, 495 (1977)). We view the circumstances as would the
reasonable man in the suspect's position. Berkemer v. McCarty,
468 U.S. 420, 442 (1984). In so doing, we consider many
factors, including: 1) the surroundings; 2) the number of
officers present; 3) the degree of physical restraint; 4) the
duration and character of the interrogation; 5) the existence of
probable cause to arrest; 6) the time when the suspect becomes
the focus of the investigation; 7) the language used by the
officer to summons the individual; and 8) the extent to which the
suspect is confronted with evidence of guilt. Wass v.
Commonwealth, 5 Va. App. 27, 33, 359 S.E.2d 836, 839 (1987).
Here, the circumstances surrounding the seizure and
questioning of Brown do not rise to the level of a custodial
interrogation. During the initial stop by Officer Hodges, the
officer was merely conducting an investigative detention, which
does not, standing alone, place a suspect in custody for Miranda
purposes. See Commonwealth v. Milner, 13 Va. App. 556, 558, 413
S.E.2d 352, 353 (1992). There was nothing about the encounter
that was inherently coercive or that would lead a reasonable
person to believe he was in custody.
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When Detective Hayden arrived, he asked Brown to accompany
him to the house, which Brown did voluntarily. At no time did
the police officers' actions intimate to the defendant that he
was in custody or in a situation equivalent to a "formal arrest."
Thus, Miranda warnings were not necessary and Brown's statements
were not made in violation of his rights.
For the foregoing reasons, we affirm the convictions.
Affirmed.
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