Michael Hanes, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
MICHAEL HANES, s/k/a
JAMES MICHAEL HAYNES
MEMORANDUM OPINION * BY
v. Record No. 1262-95-1 JUDGE SAM W. COLEMAN III
JULY 2, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
E. Preston Grissom, Judge
William P. Robinson (Robinson, Banks &
Anderson, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
James Michael Haynes appeals his bench conviction for
possession of cocaine in violation of Code § 18.2-50. Hanes
contends that the trial court erred by finding that probable
cause existed to arrest him and denying his motion to suppress
the cocaine recovered from his pocket, and by holding that he
knowingly and intelligently waived counsel for his preliminary
hearing. We find no error and affirm the defendant's conviction.
I. PROBABLE CAUSE
Officers M. D. Daniel and Becky Roberson received a police
report identifying the make, year, color, and license plate of a
vehicle that was believed being used from which to make drug
sales. Later that night, the officers saw the vehicle parked on
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
a public street. Officer Daniel observed the vehicle's
occupants' heads "moving back and forth and bobbing up and down
inside." According to Officer Daniel, this movement caused him
to believe that the occupants were engaged in criminal activity.
The officers exited their patrol car and approached the
vehicle.
As Officer Daniel approached the vehicle, he observed an
open container of Zima, an alcoholic beverage, on the console
between the driver and the passenger. The defendant was sitting
in the driver's seat. According to Officer Daniel, neither the
defendant nor the passenger appeared to be old enough to possess
alcohol. Officer Daniel asked the defendant for his name, age,
Social Security number, and address. The defendant gave his name
and a Social Security number, and stated that he was nineteen
years old. The defendant also volunteered to be personally
searched, which revealed no weapons. When Officer Daniel asked
the defendant if the alcohol on the console belonged to him,
neither the defendant nor the passenger "fessed up," according to
the officer.
Officer Daniel returned to the patrol car to verify the
identification information. When the defendant and the passenger
attempted to walk away from the vehicle, Officer Daniel stated,
"[y]ou-all need to get back in" the car. The police dispatch
informed Officer Daniel that the Social Security number the
defendant gave belonged to a woman in Alexandria. Officer Daniel
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returned to the vehicle and informed the defendant that he was
under arrest for possession of alcohol. The officers took
control of the defendant and conducted a search of his person,
which resulted in the recovery of "a small baggy" of cocaine from
his pants pocket. The defendant then pulled away from the
officers and fled into an abandoned building.
The Fourth Amendment is not implicated when a police officer
merely approaches a vehicle that is parked in a public area and
asks the occupants for identification information. Carson v.
Commonwealth, 12 Va. App. 497, 500, 404 S.E.2d 919, 920, aff'd en
banc, 13 Va. App. 280, 410 S.E.2d 412 (1991), aff'd, 244 Va. 293,
421 S.E.2d 415 (1992); Richards v. Commonwealth, 8 Va. App. 612,
615, 383 S.E.2d 268, 270 (1989). Therefore, on the facts of this
case, no fourth amendment seizure occurred until Officer Daniel
instructed the defendant and his companion to remain in the car
while he verified the information they gave. See Wechsler v.
Commonwealth, 20 Va. App. 162, 169-70, 455 S.E.2d 744, 747
(1995).
Officers Daniel and Roberson had received a police report
that the particular vehicle in which the defendant was sitting
was believed to be involved in drug dealing. Officer Daniel
observed the defendant and the passenger engage in furtive
movements inside the vehicle. As Officer Daniel approached the
vehicle, he saw an open container of alcohol on the console
between the defendant and the passenger. Daniel did not believe
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that either individual looked old enough to possess alcohol and
neither acknowledged that the beverage was his. In response to
Officer Daniel's questioning, the defendant stated that he was
nineteen years old. On these facts, the officers had reason to
believe that the defendant and the passenger were minors and that
they illegally possessed an alcoholic beverage. Code § 4.1-305.
Therefore, the officers were justified in briefly detaining the
defendant and his companion while they verified the
identification information. Phillips v. Commonwealth, 17 Va.
App. 27, 30, 434 S.E.2d 918, 920 (1993) (holding that where a
police officer possesses reasonable and articulable suspicion
"that a person is involved in criminal activity, the officer may
. . . detain the person briefly for the purpose of confirming or
dispelling his suspicion").
The false Social Security number the defendant gave was
additional indicia of illegal activity, see Jones v.
Commonwealth, 230 Va. 14, 19, 334 S.E.2d 536, 540 (1985);
Wechsler, 20 Va. App. at 172, 455 S.E.2d at 748, and combined
with the presence of an open container of alcohol in the vehicle,
the defendant's youthful appearance, and his admission that he
was nineteen, was sufficient to warrant a reasonable person in
believing that an offense had been committed. The fact that the
record does not show the passenger's age 1 or establish
1
The record does indicate that the passenger was also cited
for illegal possession of alcohol.
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conclusively that the alcohol belonged to the defendant does not
render the arrest unlawful because a prima facie showing of
criminal activity is not required to establish probable cause
that an offense was being committed. Quigley v. Commonwealth, 14
Va. App. 28, 34, 414 S.E.2d 851, 855 (1992). Accordingly, the
cocaine found in the defendant's pants pocket was recovered
during a search incident to a lawful arrest. Buck v.
Commonwealth, 20 Va. App. 298, 304, 456 S.E.2d 534, 537 (1995).
II. WAIVER OF COUNSEL
The Commonwealth has the burden of proving by "clear,
precise, and unequivocal evidence" that the defendant has
voluntarily and intelligently waived the right to counsel. Van
Sant v. Commonwealth, 224 Va. 269, 273, 295 S.E.2d 883, 885
(1982). "In the event the accused desires to waive his right to
counsel, and the court ascertains that such waiver is voluntarily
and intelligently made, then the court shall provide the accused
with a statement to be executed by the accused to document his
waiver." Code § 19.2-160. A statement of waiver that is
executed in accordance with Code § 19.2-160 "may establish a
prima facie case of waiver." Van Sant, 224 Va. at 274, 295
S.E.2d at 886.
Here, the defendant signed a waiver form that set forth in
detail his rights to be represented by an attorney. The general
district court judge signed a statement confirming that he orally
advised the defendant of those rights and found that they were
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knowingly, voluntarily, and intelligently waived. The only
evidence that contradicts the waiver form is the defendant's
trial testimony that before executing the waiver form, he "asked
if [he] could have more time to get a lawyer" and the district
court judge refused and stated, "we will try it today." However,
the trial judge was able to observe the defendant's demeanor and
evaluate his credibility, and he had discretion to accept the
facts set forth in the waiver form over the defendant's
conflicting testimony. See Long v. Commonwealth, 8 Va. App. 194,
198-99, 379 S.E.2d 473, 476 (1989). Because the record contains
no other evidence that "contradicts the factual statements in the
waivers," the evidence is sufficient to prove that the defendant
voluntarily and intelligently waived his sixth amendment right to
counsel for the preliminary hearing. Edwards v. Commonwealth, 21
Va. App. 116, 126, 462 S.E.2d 566, 571 (1995).
Affirmed.
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