Commonwealth v. Elwood F Hamlet, Jr ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0256-03-2 JUDGE WALTER S. FELTON, JR.
JUNE 10, 2003
ELWOOD F. HAMLET, JR.
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General;
Margaret W. Reed, Assistant Attorney General,
on brief), for appellant.
Gregory R. Sheldon (Goodwin, Sutton & DuVal,
P.L.C., on brief), for appellee.
Pursuant to Code § 19.2-398, the Commonwealth appeals the
judgment of the trial court granting Elwood Hamlet's motion to
suppress evidence. The Commonwealth contends that Officer Culp
engaged Hamlet in a consensual encounter, which led to his arrest
for being drunk in public. As a result, the Commonwealth argues
the search and seizure of Hamlet was incident to a lawful arrest.
For the following reasons, we reverse the judgment of the trial
court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
On August 6, 2002, Chesterfield County Police Officer
Robert Culp, in uniform and displaying his badge of authority,
was operating a marked police unit around midnight. Officer
Culp was patrolling an area where there had been several recent
larcenies, including one the previous evening, when he observed
Hamlet walking down the street.
Officer Culp followed Hamlet for approximately thirty
seconds. During that period, Hamlet turned his head and
realized an officer was following him. Thereafter, Hamlet
briefly put his hands down his pants and continued walking.
Officer Culp did not notice anything in Hamlet's hands at any
time. At the suppression hearing, Officer Culp testified that
when he observed Hamlet placing his hands in his pants, he
believed he was reaching for a weapon.
Without activating his emergency equipment, Officer Culp
pulled over and approached Hamlet on foot. When he approached
Hamlet, Officer Culp asked him what he had in his pants. Hamlet
responded that he was urinating and he was placing his private
parts back in. Officer Culp testified at the suppression
hearing that Hamlet "clearly was not" urinating and this
misrepresentation added to his suspicions.
During the encounter, Officer Culp noticed that there was a
"strong odor of alcohol" emanating from Hamlet. In addition,
Hamlet was uneasy on his feet and was swaying back and forth.
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Officer Culp arrested Hamlet for being drunk in public and
conducted a search. 1 Cocaine was discovered in Hamlet's right
pants pocket and a smoking pipe in the crotch of his pants.
A suppression hearing was held on December 18, 2002.
Hamlet contended that he was unlawfully seized and searched by
Officer Culp, in violation of his Fourth and Fourteenth
Amendment rights. Consequently, he asked the court to suppress
all evidence obtained as a result. Officer Culp was the only
witness called to testify and following his testimony, the trial
court granted Hamlet's motion simply holding, "[t]he motion to
suppress is granted." The Commonwealth appeals the judgment of
the trial court.
II. ANALYSIS
In reviewing a pretrial appeal, we "view the evidence in
[the] light most favorable to [the defendant], the prevailing
party below, and we grant all reasonable inferences fairly
deducible from that evidence. We will not reverse the trial
judge's decision unless it is plainly wrong." Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)
(citing Commonwealth v. Holloway, 9 Va. App. 11, 20, 384 S.E.2d
99, 104 (1989)).
The Commonwealth argues on appeal that the trial court erred
in granting Hamlet's motion to suppress because the seizure of
1
The record does not indicate at what point Officer Culp
conducted the search.
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evidence was a result of a lawful search incident to an arrest for
being drunk in public. We agree.
"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.
Ornelas v. United States, 517 U.S. 690,
[691], 116 S. Ct. 1657, 1659, 134 L. Ed. 2d
911 (1996). In performing such analysis, we
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. Id. at [699], 116
S. Ct. at 1663. 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 v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (footnote omitted).
A. CONSENSUAL ENCOUNTER
A police officer does not violate the Fourth Amendment
"merely by approaching an individual on the street, identifying
[himself], and asking the individual questions." Buck v.
Commonwealth, 20 Va. App. 298, 301-02, 456 S.E.2d 534, 535
(1995) (citing Baldwin v. Commonwealth, 243 Va. 191, 196, 413
S.E.2d 645, 647-48 (1992)).
The initial engagement between Officer Culp and Hamlet was
a consensual encounter. A consensual encounter need not be
predicated on suspicion of criminal activity and remains
consensual so long as the encountered citizen voluntarily
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cooperates with the police. Payne v. Commonwealth, 14 Va. App.
86, 88, 414 S.E.2d 869, 870 (1992) (citing United States v.
Wilson, 953 F.2d 116, 121 (4th Cir. 1991)). Hamlet voluntarily
cooperated with Officer Culp. At no point during this encounter
did Officer Culp indicate that Hamlet was not free to leave, nor
did Hamlet attempt to leave or refuse to answer Officer Culp's
questions. In voluntarily responding to questions, Hamlet
consented to the encounter with police. See United States v.
Mendenhall, 446 U.S. 544 (1980).
B. SEARCH INCIDENT TO ARREST
At oral argument, Hamlet's attorney conceded that if the
initial encounter was consensual, the officer had probable cause
to arrest Hamlet for being drunk in public.
One of the established exceptions to the
Fourth Amendment's warrant requirement is
for a "search incident to a lawful arrest."
United States v. Robinson, 414 U.S. 218,
224, 226, 94 S. Ct. 467, 471, 472, 38
L. Ed. 2d 427 (1973) (also holding that
searches incident to arrest "meet the Fourth
Amendment's requirement of reasonableness");
see also Chimel v. California, 395 U.S. 752,
762-63, 89 S. Ct. 2034, 2039-2040, 23
L. Ed. 2d 685 (1969).
When delineating the permissible scope of a
warrantless search incident to arrest, the
United States Supreme Court has stated that
a lawful arrest of a suspect authorizes the
police to conduct "a full search of the
[arrestee's] person." Robinson, 414 U.S. at
235, 94 S. Ct. at 477. In addition, the
police may search the area within the
arrestee's immediate control, see Chimel,
395 U.S. at 763, 89 S. Ct. at 2040, and
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seize his or her personal effects that are
evidence of the crime.
Commonwealth v. Gilmore, 27 Va. App. 320, 327-28, 498 S.E.2d
464, 468 (1998).
The search of Hamlet, conducted by Officer Culp, was a
lawful search incident to an arrest. Officer Culp developed
probable cause to arrest Hamlet for being drunk in public during
the course of the consensual encounter. During their
conversation, Officer Culp noticed that Hamlet had a "strong
odor of alcohol" about him, he was uneasy on his feet, and was
swaying back and forth. These factors were sufficient to
establish probable cause for Officer Culp to arrest Hamlet for
being drunk in public. The lawful arrest permitted Officer Culp
to conduct a full search of Hamlet and seize any evidence of
criminal activity. The trial court erred in suppressing the
evidence seized from Hamlet.
The judgment of the trial court is reversed.
Reversed.
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