William Diamond Cheeks v. Commonwealth of VA ( 2002 )

Tuesday 26th
March, 2002.
William Damond Cheeks, Appellant,
against Record No. 1889-00-2
Circuit Court Nos. 00-911-F through 00-913-F
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements and
Agee
Carolyn V. Grady (Carolyn V. Grady, P.C., on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
By memorandum opinion dated October 16, 2001, a
divided panel of this Court reversed the judgment of the trial
court. We stayed the mandate of that decision and granted
rehearing en banc.
Upon rehearing en banc, it is ordered that the October
16, 2001 mandate is vacated, and the judgment of the trial court
is affirmed for the reasons set forth in the panel dissent. The
appellant shall pay to the Commonwealth of Virginia thirty
dollars damages.
Judges Benton and Clements dissent for the reasons set
forth in the majority opinion of the panel.
It is ordered that the trial court allow counsel for
the appellant a total fee of $925 for services rendered the
appellant on this appeal, in addition to counsel's costs and
necessary direct out-of-pocket expenses.
The Commonwealth shall recover of the appellant the
amount paid court-appointed counsel to represent him in this
proceeding, counsel's costs and necessary direct out-of-pocket
expenses, and the fees and costs to be assessed by the clerk of
this Court and the clerk of the trial court.
This order shall be certified to the trial court.
Costs due the Commonwealth
by appellant in Court of
Appeals of Virginia:
Attorney's fee $925.00 plus costs and expenses
A Copy,
Teste:
Cynthia L. McCoy,
Clerk
By:
Deputy Clerk
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Thursday 6th
December, 2001.
William Damond Cheeks, Appellant,
against Record No. 1889-00-2
Circuit Court Nos. 00-911-F through 00-913-F
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On October 30, 2001 came the appellee, by the Attorney
General of Virginia, and filed a petition praying that the Court
set aside the judgment rendered herein on October 16, 2001, and
grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing
en banc is granted, the mandate entered herein on October 16,
2001 is stayed pending the decision of the Court en banc, and
the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule
5A:35. The appellee shall attach as an addendum to the opening
brief upon rehearing en banc a copy of the opinion previously
rendered by the Court in this matter. It is further ordered that
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the appellee shall file with the clerk of this Court twelve
additional copies of the appendix previously filed in this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia
WILLIAM DAMOND CHEEKS
MEMORANDUM OPINION * BY
v. Record No. 1889-00-2 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 16, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Carolyn V. Grady (Carolyn V. Grady, P.C., on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
William Damond Cheeks was convicted in a bench trial of
possession of cocaine with intent to distribute in violation of Code
§ 18.2-248, possession of a firearm while possessing cocaine in
violation of Code § 18.2-308.4, and possession of a firearm by a
convicted felon in violation of Code § 18.2-308.2. On appeal, he
contends the trial court erred in denying his motion to suppress the
gun and cocaine because they were the products of a seizure that
violated his Fourth Amendment rights. We agree and reverse the
convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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As the parties are fully conversant with the record in this case
and because this memorandum opinion carries no precedential value, this
opinion recites only those facts and incidents of the proceedings as
necessary to the parties' understanding of the disposition of this
appeal.
I. BACKGROUND
Viewed in the light most favorable to the Commonwealth, the
party prevailing below, see Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991), the evidence established that,
on April 6, 2000, Richmond City Police Officer Fred Bates was on
patrol when he received a radio call that a man had hit a woman in
the knee with the butt of a gun in the 3400 block of Semmes Avenue.
The call reported that the suspect's last name was "Cheeks" and that
he had run into Antonz's Barbershop. No other information regarding
the suspect was provided.
Officer Bates proceeded to Antonz's Barbershop, located at 3412
Semmes Avenue, and went inside. There, he saw two people getting a
haircut and two others waiting to get a haircut. Bates, who was in
uniform, informed the barber that he was investigating a crime that
had been committed by an armed suspect and asked him if anybody had
run into the barbershop "in the past couple minutes." The barber
said that no one had. No one in the barbershop, according to Bates,
appeared to be out of breath. Bates did not tell those in the
barbershop that the suspect's last name was "Cheeks."
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Bates asked the two customers waiting for haircuts for
identification, and they both provided it to the officer. Bates then
asked one of the men getting a haircut for identification, and he
produced it. Finally, Bates asked Cheeks, the other man getting a
haircut, what his name was and to see his identification. Cheeks,
who, according to Bates, "was halfway through his haircut," gave the
officer a name other than Cheeks and informed him that he did not
have any identification.
Bates then stood beside Cheeks, approximately three feet away,
for two to three minutes, "wait[ing] for [Cheeks] to get his
haircut." Bates testified he did not know Cheeks at that time and
had no reason to think Cheeks had given him a false name. He added
that Cheeks was not engaged in criminal conduct but was merely
getting a haircut. However, because he had received a report that an
armed suspect had entered the barbershop and because Cheeks had not
produced identification, Bates stood next to Cheeks "just in case he
did have a gun."
At the conclusion of his haircut, Cheeks started walking quickly
toward the front door of the barbershop. Bates asked him, "Hey
buddy, can I talk to you outside." Cheeks replied, "No problem," and
they went outside. Bates told Cheeks he was investigating "an armed
suspect call" and asked him if he could pat him down for the safety
of them both. Cheeks responded affirmatively. Bates asked Cheeks to
turn around. Cheeks turned around to face the door of the
barbershop, put his hands up, and ran into the barbershop.
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Officer Bates pursued Cheeks and tackled him inside the
barbershop. Cheeks got up and started running again. Bates again
tackled him inside the barbershop and hung on while Cheeks dragged
him through the barbershop toward the back door. Freeing himself,
Cheeks fled out the back door of the barbershop, with Bates in
pursuit. The back door opened onto Forest Hill Avenue. After
crossing Forest Hill Avenue, Cheeks ran behind a building, where
Bates, "just a couple feet behind him," saw Cheeks throw a gun
against a brick wall as he ran. Eventually, Bates and another
officer apprehended Cheeks. They found cocaine on his person and
retrieved the gun he had thrown.
Prior to trial, Cheeks moved to suppress the cocaine and gun,
arguing that their discovery stemmed from the unlawful seizure of his
person. The trial court denied the motion, ruling that the encounter
was consensual until Cheeks fled, at which point the officer had
reasonable suspicion to detain him.
II. ANALYSIS
"In reviewing a trial court's denial of a motion to suppress,
'[t]he burden is upon [the defendant] to show that th[e] ruling, when
the evidence is considered most favorably to the Commonwealth,
constituted reversible error.'" McGee v. Commonwealth, 25 Va. App.
193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (alterations in
original) (quoting 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
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questions of both law and fact and are reviewed de novo on appeal."
Id. (quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)).
"Similarly, the question whether a person has been seized in
violation of the Fourth Amendment is reviewed de novo on appeal."
Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27
(2000). However, "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." McGee, 25
Va. App. at 198, 487 S.E.2d at 261 (citing Ornelas, 517 U.S. at 699).
Cheeks contends on appeal that he was effectively seized by
Officer Bates in Antonz's Barbershop when the officer, after telling
the barber that he was investigating a crime, stood next to Cheeks
for several minutes waiting for the barber to finish cutting Cheeks'
hair. Cheeks further contends the seizure violated his Fourth
Amendment rights because it was not based on a reasonable,
articulable suspicion. Thus, he concludes, the trial court erred in
refusing to suppress the gun and cocaine, the discovery of which
derived from the police's unlawful seizure of him.
The Commonwealth argues that Officer Bates seized Cheeks only
after Cheeks ran away from the officer. Up to that point, the
Commonwealth asserts, the encounter was consensual.
A. Seizure
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Encounters between the police and citizens "generally fall into
one of three categories." McGee, 25 Va. App. at 198, 487 S.E.2d at
261.
First, there are consensual encounters which do
not implicate the Fourth Amendment. Next, there
are brief investigatory stops, commonly referred
to as "Terry" stops, which must be based upon
reasonable, articulable suspicion that criminal
activity is or may be afoot. Finally, there are
"highly intrusive, full-scale arrests" or
searches which must be based upon probable cause
to believe that a crime has been committed by the
suspect.
Id. (citations omitted).
Thus, a detention that is not consensual is a seizure requiring
Fourth Amendment scrutiny. See id. at 198-99, 487 S.E.2d at 261-62;
Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870
(1992). "An encounter is not consensual 'if, in view of all of the
circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.'" Piggott v.
Commonwealth, 34 Va. App. 45, 49, 537 S.E.2d 618, 619 (2000) (quoting
United States v. Mendenhall, 446 U.S. 544, 554 (1980)). "A seizure
occurs when an individual is either physically restrained or has
submitted to a show of authority" by the police. McGee, 25 Va. App.
at 199, 487 S.E.2d at 262.
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. Such encounters need not be
predicated on any suspicion of the person's
involvement in wrongdoing, and remain consensual
as long as the citizen voluntarily cooperates
with the police.
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Payne, 14 Va. App. at 88, 414 S.E.2d at 870 (internal quotations and
citations omitted).
However, a consensual encounter loses its consensual nature and
becomes a seizure for Fourth Amendment purposes when, in light of the
totality of the circumstances encompassing the encounter, a
reasonable person would have believed that he or she was no longer
free to walk away from the police, disregard their questions, ignore
or decline their requests, or otherwise end the encounter with them.
See Piggott, 34 Va. App. at 49, 537 S.E.2d at 619; Payne, 14 Va. App.
at 88-89, 414 S.E.2d at 870. For a seizure to occur, "[t]here must
be some coercion or show of force or authority by the officer,
measured by objective standards, that would cause a person so
situated reasonably to have believed that he or she was required to
comply with the officer's request." Commonwealth v. Satchell, 15 Va.
App. 127, 131, 422 S.E.2d 412, 414-15 (1992).
Applying these principles to the circumstances of this case, we
find that the encounter between Officer Bates and Cheeks was
initially consensual. Upon entering the barbershop, Bates, who was
in uniform, told the barber merely that a crime involving an armed
suspect had been committed. He did not mention the suspect's last
name. He then asked Cheeks, along with the other customers in the
barbershop, for his name and identification. Cheeks voluntarily gave
Bates a name (not "Cheeks") and informed the officer that he did not
have identification. "An encounter between a law enforcement officer
and a citizen in which the officer merely identifies himself and
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states that he is conducting a[n] . . . investigation, without more,
is not a seizure within the meaning of the Fourth Amendment but is,
instead, a consensual encounter." McGee, 25 Va. App. at 199, 487
S.E.2d at 262.
We further find, however, that the encounter between Bates and
Cheeks lost its consensual nature when the officer, having made it
known that he was investigating a crime involving an armed suspect
and having been told by Cheeks that he did not have identification,
stood beside Cheeks for two to three minutes waiting for him while
the barber finished cutting his hair. That action, we conclude,
conveyed the unmistakable message to Cheeks that Bates was no longer
conducting a general investigation but had made Cheeks the focus of
his investigation.
As we noted in Langston v. Commonwealth, 28 Va. App. 276, 282,
504 S.E.2d 380, 383 (1998), "[t]he circumstances of the encounter may
indicate, even without physical restraint, a suspect is not free to
leave."
[W]hen a police officer confronts a person and
informs the individual that he or she has been
specifically identified as a suspect in a
particular crime which the officer is
investigating, that fact is significant among the
"totality of the circumstances" to determine
whether a reasonable person would feel free to
leave.
McGee, 25 Va. App. at 200, 487 S.E.2d at 262.
Here, even though Bates did not inform those in the barbershop
that the last name of the suspect was "Cheeks" or directly accuse
Cheeks of committing the crime, we find that, by standing next to
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Cheeks, and Cheeks alone, while Cheeks got his hair cut, Bates
specifically identified Cheeks as a suspect and implicitly informed
him that he was being detained to investigate his criminal activity.
Such a show of authority, we believe, would cause a reasonable person
in Cheeks' position to have reasonably believed that he or she was
not free to terminate the encounter with the officer and walk away.
We conclude, therefore, based on our de novo review of all of
the circumstances surrounding the encounter, that the evidence proves
that Cheeks was seized under the Fourth Amendment when Officer Bates
stood beside him in the barbershop.
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B. REASONABLE SUSPICION
"In order to justify such a seizure, an officer must have a
'reasonable and articulable suspicion of criminal activity on the
part of the defendant.'" Hatcher v. Commonwealth, 14 Va. App. 487,
490, 419 S.E.2d 256, 258 (1992) (quoting Commonwealth v. Holloway, 9
Va. App. 11, 15, 384 S.E.2d 99, 101 (1989)). "[I]f there are
articulable facts supporting a reasonable suspicion that a person has
committed a criminal offense, that person may be stopped in order to
identify him, to question him briefly, or to detain him briefly while
attempting to obtain additional information." Hayes v. Florida, 470
U.S. 811, 816 (1985). However, the justification for the seizure
"must be more than an 'inchoate and unparticularized suspicion or
hunch.'" McGee, 25 Va. App. at 202, 487 S.E.2d at 263 (quoting Terry
v. Ohio, 392 U.S. 1, 27 (1968) (internal quotes omitted)). In
reviewing whether an officer had reasonable suspicion to justify the
seizure, we must consider the "totality of the circumstances and view
those 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).
Here, the evidence established that Officer Bates received
information from his radio dispatch that an assault with a gun had
been committed in the 3400 block of Semmes Avenue and that the
suspect, a man named Cheeks, had run into Antonz's Barbershop,
located in that block. No other information regarding the suspect
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was provided. Likewise, no information was transmitted as to when
the alleged assault had occurred or when the suspect had run into the
barbershop. Bates testified that he "thought it was just right
then."
Based on the information from dispatch, Bates went to the
barbershop. Nothing in the record indicates the time of the radio
call, Bates' location when he received the call, or how long it took
him to arrive at the barbershop.
Inside the barbershop, Bates found the barber and four
customers. Cheeks, along with another customer, was getting his hair
cut, while the two other customers waited. Cheeks was "halfway
through his haircut." None of the customers was out of breath. In
response to Bates' inquiry, the barber told Bates that no one had run
into the shop in "the past couple minutes."
When Bates confronted Cheeks to determine his identity, Cheeks
readily told the officer his name, which was not "Cheeks," and said
he had no identification. Bates testified that he did not know
Cheeks and had no reason to think Cheeks had given him a false name.
He also testified that Cheeks was not engaged in criminal activity,
and there was no indication that Cheeks acted in a suspicious manner.
On these facts, we find that Officer Bates lacked an objectively
reasonable or articulable basis for suspecting that Cheeks was or had
recently been engaged in criminal activity. Bates had no description
of the suspect and observed nothing that suggested that Cheeks was
the suspect. At most, Bates had an inchoate and unparticularized
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suspicion or hunch that Cheeks might have been the suspect because he
was unable or unwilling to provide identification. Such a hunch,
however, does not rise to the level of reasonable suspicion necessary
to justify the seizure. See McGee, 25 Va. App. at 202, 487 S.E.2d at
263.
We conclude, therefore, based on our de novo review of the
totality of the circumstances, that, because the circumstances
provided Bates no objective basis for suspecting Cheeks was or had
been engaged in criminal activity, Cheeks was seized in violation of
his Fourth Amendment rights. Hence, we hold that the trial court
erred in denying Cheeks' motion to suppress the gun and the cocaine,
both of which were discovered as a direct consequence of the unlawful
detention. See Warlick v. Commonwealth, 215 Va. 263, 265, 208 S.E.2d
746, 747-48 (1974) (noting that exclusionary rule bars admission of
"derivative evidence" discovered as a result of an unlawful search or
seizure).
Accordingly, we reverse Cheeks' convictions and dismiss the
charges.
Reversed and dismissed.
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Frank, J. dissenting.
I would find the police did not seize appellant while he was
seated in the barber chair.
A seizure occurs "only when, by means of physical force or a
show of authority, [a person's] freedom of movement is restrained.
Only when such restraint is imposed is there any foundation whatever
for invoking constitutional safeguards."
United States v. Mendenhall, 446 U.S. 544, 553 (1980). "[I]f, in
view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave,"
then a seizure has occurred. Id. at 554.
Examples of circumstances that might indicate a
seizure, even where the person did not attempt to
leave, would be the threatening presence of
several officers, the display of a weapon by an
officer, some physical touching of the person of
the citizen, or the use of language or tone of
voice indicating that compliance with the
officer's request might be compelled. See Terry
v. Ohio, [392 U.S. 1, 19 n.16 (1968)]; Dunaway v.
New York, 442 U.S. 200, 207, and n. 6; 3 W.
LaFave, Search and Seizure 53-55 (1978). In the
absence of some such evidence, otherwise
inoffensive contact between a member of the
public and the police cannot, as a matter of law,
amount to a seizure of that person.
Id. at 554-55. See also Ford v. City of Newport News, 23 Va. App.
137, 142, 474 S.E.2d 848, 850 (1996).
Officer Bates was in uniform. However, he was the only police
officer in the barbershop. He did not display his gun. He did not
touch appellant. The officer did not tell appellant he had to remain
in the chair and did not tell appellant he was a suspect in a crime.
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Nothing in the record suggests Bates' tone of voice indicated
compliance was mandatory.
The officer did remain in the shop, approximately three feet
away from appellant while the barber cut his hair. I believe this
circumstance is similar to Clarke v. Commonwealth, 32 Va. App. 286,
527 S.E.2d 484 (2000). In Clarke, an officer approached a stopped
vehicle and asked the passenger, Clarke, some questions. We found
the police are "permitted to ask [a suspect] questions without
violating his Fourth Amendment rights." Id. at 303, 527 S.E.2d at
492.
Officer Bates simply asked appellant for identification. The
officer then stood aside, asked nothing, and waited for
the barber to finish cutting appellant's hair. Appellant was already
seated in the chair when approached by the officer. Appellant
continued to sit there until the haircut was completed and then
started to leave the shop. The only "restraint" resulted from
appellant's desire to remain where he was and get his hair cut.
I do not believe a "show of authority" occurred nor would a
reasonable person feel seized by anything Officer Bates did.
Therefore, I would affirm the convictions.
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