Quanti M. Evans, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia
QUANTI M. EVANS, S/K/A
QUANTI MONTERIO EVANS
MEMORANDUM OPINION * BY
v. Record No. 2557-95-1 JUDGE JAMES W. BENTON, JR.
DECEMBER 10, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
James C. Godwin, Judge Designate
Kathleen A. Maynard, Assistant Public
Defender, for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Quanti Evans was convicted of possession of cocaine with the
intent to distribute. On this appeal from the trial judge's
refusal to suppress evidence, Evans argues (1) that the police
found evidence during a detention that violated the Fourth
Amendment and (2) that the statement he made after his arrest was
not voluntary. For the reasons that follow, we hold that the
detention was unlawful and that the trial judge erred in
admitting the seized evidence.
I.
The evidence proved that at 9:25 p.m. on September 2, 1994,
Officer Christopher P. Smith and Officer Clark were on routine
patrol when they saw an automobile parked on a dead-end street.
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
The officers stopped their vehicle facing the automobile and
illuminated the automobile with their bright headlights. Officer
Smith testified that this particular street was an area normally
checked for drug activity. He also testified that he observed a
pile of clothes on top of the automobile. He recognized the
automobile as belonging to an individual who rented it to other
people in exchange for narcotics.
The officers, both in uniform, left their vehicle and went
to the automobile. Officer Smith approached the automobile on
the driver's side. He saw five people inside and noticed that
the interior was "extremely smoky." Officer Smith motioned for
the person in the driver's seat to roll down the window. The
driver, who was not wearing a shirt, looked away. Officer Smith
then tapped on the window and again motioned to the driver to
open the window. After the driver partially rolled down the
window, Officer Smith detected a strong odor of marijuana.
Officer Smith asked the driver to produce his driving permit
and vehicle registration. The driver gave Officer Smith his
permit. The passenger in the front seat, Quanti Evans, looked in
the glove compartment for the registration card without success.
While this was occurring, Officer Smith noticed a cellophane
wrapper for a cigar on the ground outside the automobile. He
testified that he concluded the occupants were smoking marijuana
in a hollowed-out cigar.
Officer Smith ordered the driver out of the automobile.
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After a brief conversation with Officer Smith, the driver
consented to a search of the automobile. The officers then
removed Evans and the other three occupants and conducted pat
down searches. The officers found two small baggies of marijuana
and a cigar stuffed with marijuana on one of the passengers from
the rear seat. The officer who searched Evans found $271 in his
front pants pocket. After Officer Clark discovered cocaine in
the glove compartment, Officer Smith arrested Evans.
At the police station, the officers placed Evans in a cell.
Because Evans was a minor, Officer Smith contacted Evans'
mother. When Evans' mother arrived, Officer Smith advised Evans
of his Miranda rights. Evans and his mother indicated that they
understood the Miranda rights, and they both signed a waiver
form.
Officer Smith testified that he explained the charges and
told Evans and his mother that it was "always in [a defendant's]
best interest to make a statement, get the facts out as he sees
them, clear the air sort of thing." He also advised Evans that
he would tell the Commonwealth's Attorney and the judge that
Evans had been cooperative. He testified that although he told
Evans that "anything can happen" in court, he also told him "that
it would, may be more favorable to him" if he gave a statement.
Officer Smith said he "may have told [Evans] that [he has] seen
the court . . . go on a different route with people that make
statements or that type of thing." After Officer Smith made
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those statements, Evans gave a written statement confessing his
possession of the cocaine in the glove compartment.
Evans testified at the suppression hearing that Officer
Smith told him that he "need[ed] to be cooperative" so that the
Commonwealth's Attorney would "take it easy on [him], but if [he
kept] trying to fight the system they [would] . . . send [him]
away for a long time." Evans also alleged that Officer Smith
stated that in "previous cases . . . where people wrote
statements they didn't get that much time."
The trial judge found that the police officers had a
reasonable suspicion of criminal activity when they detained the
occupants of the automobile and found that Evans' statement was
voluntary. Thus, the trial judge denied Evans' motion to
suppress both the cocaine seized from the glove compartment and
Evans' statement.
II.
"When the police stop a motor vehicle and detain an
occupant, this constitutes a 'seizure' of the person for Fourth
Amendment purposes, even though the function of the stop is
limited and the detention brief." Zimmerman v. Commonwealth, 234
Va. 609, 611, 363 S.E.2d 708, 709 (1988) (citations omitted).
When the officers parked their car blocking the path of the
suspects' vehicle, shined their bright lights into the vehicle,
approached the vehicle in uniform, and insisted that the driver
roll down his window and display his driver's permit, the
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officers effected a stop of the passengers in the vehicle.
"[T]he police can stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion
supported by articulable facts that criminal activity 'may be
afoot.'" United States v. Sokolow, 490 U.S. 1, 7 (1989) (citing
Terry v. Ohio, 392 U.S. 1, 30 (1968)). The Terry standard
requires that "[t]he officer . . . be able to articulate
something more than an 'inchoate and unparticularized suspicion
or "hunch."'" Sokolow, 490 U.S. at 7 (citation omitted). The
record must contain a basis for the trial judge and this Court to
exclude the hypothesis that the police operated on a hunch. The
Supreme Court has stated that "[a] court sitting to determine the
existence of reasonable suspicion [that a crime is occurring]
must require the agent to articulate the factors leading to that
conclusion." Id. at 10.
Although the record contains a myriad of facts, the record
contains no testimony by the officers asserting that they
suspected criminal activity or articulating the nature of the
criminal activity they allegedly suspected. The officers had not
received a call that required them to respond to that vicinity.
Officer Smith testified that they were on routine patrol when
they saw the automobile. Moreover, he responded in the
affirmative when asked, "Well, is there any responsibility . . .
when you see a vehicle parked at a location where in your opinion
it's not supposed to be parked and it is abandoned, do you go up
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and check it?" However, no evidence established that the
automobile appeared abandoned.
Although the trial judge found "from the evidence presented
that the officers had every reasonable suspicion," the officers
did not articulate a basis to support a conclusion other than a
desire to check the automobile because it was suspicious. In
short, the officers did not articulate a basis to exclude the
conclusion that the stop was based on a hunch. For these
reasons, we hold that the trial judge erred in refusing to
suppress the evidence seized from the automobile.
III.
"The burden is upon the Commonwealth to prove that
extra-judicial inculpatory statements were made voluntarily
before they can be admitted in evidence against one charged with
or suspected of the commission of a crime." Gwaltney v.
Commonwealth, 19 Va. App. 468, 472, 452 S.E.2d 687, 690 (1995).
In assessing the evidence, this Court must examine the totality
of the circumstances. Id. None of the facts and circumstances
of the interrogation established that Evans' "will was overcome
and his capacity for self-determination critically impaired."
Wilson v. Commonwealth, 13 Va. App. 549, 554, 413 S.E.2d 655, 658
(1992). The statements made by the police officer did not render
the confession inadmissible. See Starks v. Commonwealth, 225 Va.
48, 52-54, 301 S.E.2d 152, 155 (1983).
Accordingly, we reverse the conviction and remand for
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further proceedings.
Reversed and remanded.
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