McGee v. Commonwealth , 23 Va. App. 334 ( 1996 )

COLE, Senior Judge.

Douglas McGee, Jr. appeals his bench trial conviction for possession of cocaine with intent to distribute in violation of Code § 18.2-248. McGee contends that he was unlawfully seized in violation of the Fourth Amendment of the United States Constitution and that the trial court erred by refusing to suppress the cocaine that was found as a result of the illegal seizure. We hold that the police officers did not effectuate a seizure for Fourth Amendment purposes prior to the time the defendant freely and voluntarily consented to the search resulting in the recovery of the cocaine. Accordingly, we affirm the defendant’s conviction.

I.

The facts are not in dispute. On July 31, 1994, around 5:00 p.m., Officer Norris I. Loperl of the Richmond Police Department received a radio dispatch that “a black male wearing a white t-shirt, black shorts and white tennis shoes” was selling drugs at the corner of 5001 Government Road, in Richmond. The dispatch was based on a report from an anonymous informant. Approximately two minutes after receiving the dispatch, Loperl and two other officers, all of whom were in uniform, arrived at the location in two marked police cruisers. The only persons observed at the location were the defendant and a female companion.

After parking the police cruisers, the officers approached the defendant, who was sitting on a small porch in front of a store. Officer Loperl testified that they did not block the defendant’s path in any direction or draw their weapons. Loperl testified that he stated to the defendant, while speaking in the same tone of voice he was using while testifying in court, “I had received a call that you was on this corner selling drugs and said you matched the description.” According to Loperl, the defendant was free to leave, although the officer did not expressly so inform the defendant.

Loperl then “asked [the defendant] could I pat him down to make sure he didn’t have any weapons on him.” The defendant responded by standing up and extending his arms in front of him with both fists clenched. The fists were clenched so tightly the officer could not see what was in them. Loperl testified that the defendant could have been holding a “small pocket knife” or “a razor” in his closed fists. Therefore, after patting down the defendant and finding no weapons, Loperl asked the defendant to open his hands. Although Loperl could not remember the exact words used, he testified that, “I know I asked him. I know I didn’t tell him. I asked him.” The defendant opened his hands, which contained money, a torn ziplock bag, and “a little piece of white substance.” Loperl placed the defendant under arrest. In the search of the defendant incident to that arrest, Loperl found twenty-five bags containing crack cocaine.

In a written opinion, the trial judge concluded that the information provided to Loperl, coupled with Loperl’s observations confirming the reliability of the anonymous tip, provided Loperl with a reasonable, articulable suspicion that the defendant was involved in criminal activity. Although the defendant’s encounter with the police amounted to an investigatory stop, the police neither restricted the defendant’s movement nor engaged in coercive conduct. Under these circumstances, the trial judge found that the defendant’s consent to Loperl’s, request was valid and the fruits of the search were admissible.

II.

The defendant contends that the trial court erred in failing to grant his suppression motion because: (1) he was seized without reasonable, articulable suspicion when he was approached by three police officers and ordered to submit to a pat down search; (2) Officer Loperl did not have a reasonable fear for his safety to justify a pat down; and (3) the defendant did not freely and voluntarily consent to a pat down of his person or a search of the contents of his hands. The Commonwealth responds that the defendant’s initial encounter with the police did not implicate the Fourth Amendment because it was not a seizure, and the defendant freely and voluntarily consented to the pat down and search of his hands.

In reviewing a trial court’s denial of a motion to suppress, “[t]he burden is upon [the defendant] to show that this ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.” Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980). We are bound to review de novo the “ultimate questions of reasonable suspicion and probable cause to make a warrant-less search,” which involve “mixed question[s] of law and fact.” Ornelas v. United States, 517 U.S.—, —, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996). In performing such analysis, we must “review findings of historical fact only for clear error and ... give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Id., at —, 116 S.Ct. at 1663. In a similar manner, we analyze a trial judge’s determination that the Fourth Amendment was or was not implicated by reviewing the judge’s factual findings for clear error and applying de novo our own legal analysis of the question. See Satchell v. Commonwealth, 20 Va.App. 641, 648, 460 S.E.2d 253, 256 (1995) (en banc). See also Watson v. Commonwealth, 19 Va.App. 659, 663, 454 S.E.2d 358, 361 (1995).

In Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647 (1992), the Supreme Court of Virginia fully reviewed and explicated the requirements of a “seizure” implicating the Fourth Amendment:

We adhere to the view , that a person is “seized” only when, by means of physical force or show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.

(Citation omitted). “In determining whether police detention constitutes a seizure by investigatory stop, ‘cognizance must be taken of the “totality of the circumstances—the whole picture.” ’ If that determination is negative, the detention is not unreasonable and, hence, does not implicate the Fourth Amendment.” Id at 199, 413 S.E.2d at 649 (citations omitted). Therefore, we must look to the “totality of the circumstances” and “the whole picture” to determine whether Officer Loperl by means of physical force or show of authority in some way restrained the defendant’s liberty.

In Baldwin, police officers responded to a report of “drunks in public” and observed the accused and another person walking toward some apartments. Id. at 193-94, 413 S.E.2d at 646. Although the evidence revealed that the officer shined a “floodlight” on the individuals and told them to “come over here,” the Court held that these actions did not constitute a seizure because there was “no evidence of ‘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.’ ” Id at 199, 413 S.E.2d at 649 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). See also Lawrence v. Commonwealth, 17 Va.App. 140, 435 S.E.2d 591 (1993), aff'd, 247 Va. 339, 443 S.E.2d 160 (1994) (holding that suspect was not “seized” when told by police to remove his hands from his pockets).

The uncontroverted evidence in this case establishes that the initial encounter between the defendant and the police was consensual and that the officers did not seize him for Fourth Amendment purposes. The officers approached the defendant in a public place and initiated a conversation in the course of investigating the anonymous report of drug dealing. The police officers had a duty to investigate the complaint of criminal activity, and it was reasonable for them to question the defendant, who was the only male at the reported location. Although the three officers who confronted the defendant were in uniform, they made no show of force. They did not “run up to” the defendant and did not draw their weapons. According to Loperl, the officers were standing in front of the defendant but did not block him from leaving in any direction. Loperl testified that he spoke to the defendant in the same tone of voice he was using while testifying and that none of the officers touched the defendant before he consented to the pat down search. Loperl approached the defendant, explained that the police had received a report of someone selling drugs on that street corner, and said that the defendant matched the description. Loperl, however, did not accuse the defendant of selling drugs. Rather, Loperl simply told the defendant the reasons for approaching and asking him questions. Under these circumstances, we hold that no Fourth Amendment seizure occurred.

Ignoring the “totality of the circumstances” and the “whole picture” and relying solely upon Loperl’s statement to the defendant that he matched the tipster’s description, the dissent finds that “a reasonable person would [not] feel free to leave after being approached by a police officer and informed that he was suspected of drug dealing.” The effect of the dissenting opinion is to hold that a Fourth Amendment “seizure” occurs per se any time a police officer advises a suspect the police had received information that the suspect had been selling illegal drugs at a particular location. In accordance with this view, without implicating the Fourth Amendment, the police could not investigate a citizen complaint and respond truthfully to a suspect’s questions about why the police were present and had approached that individual. In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the United States Supreme Court denounced the decision of a Florida court adopting a per se rule pertaining to Fourth Amendment seizures, and stated:

We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.

Id. at 439, 111 S.Ct. at 2389.

Furthermore, the dissent focuses upon the possible effect upon the suspect of such a statement when made by a police officer. The Supreme Court has emphasized, however, the objective nature of the test to be applied in determining if a person has been seized within the meaning of the Fourth Amendment. Michigan v. Chesternut, 486 U.S. 567, 574, 108 S.Ct. 1975, 1979-80, 100 L.Ed.2d 565 (1988) (citation omitted). “[T]he ‘reasonable person’ test presupposes an innocent person.” Bostick, 501 U.S. at 438, 111 S.Ct. at 2388. Thus, the fact that a person possessing drugs might be more inclined to believe, upon being advised of the information a police officer possesses, that he had no choice but to cooperate does not necessarily mean that a “seizure” has occurred.

While the test is flexible enough to be applied to the whole range of police conduct in an equally broad range of settings, it calls for consistent application from one police encounter to the next, regardless of the particular individual’s response to the actions of the police. The test’s objective standard—looking to the reasonable man’s interpretation of the conduct in question—allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment. This “reasonable person” standard also ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached.

III.

Our conclusion that the defendant was not “seized” when he consented to the pat down and when Loperl asked him to open his hands disposes of the defendant’s contention that the pat down was unjustified by the officer’s reasonable fear for his safety. Remaining, however, is the issue of the voluntariness of the defendant’s consent to the pat down search of his person and to open his hands.

A search conducted pursuant to a valid consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). “The test of a valid consent search is whether it was ‘freely and voluntarily given.’ ” Deer v. Commonwealth, 17 Va.App. 730, 734, 441 S.E.2d 33, 36 (1994) (quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968)). The consent need not be given orally but can be determined from the actions and behavior of the defendant. See Hairston v. Commonwealth, 216 Va. 387, 219 S.E.2d 668 (1975).

The evidence clearly established that Loperl requested permission to pat down the defendant. Although Loperl could not remember the exact words he used, he insisted that he did not command the defendant to open his hands: “I know I asked him. I know I didn’t tell him. I asked him.” The defendant did not respond verbally, but he voluntarily consented to this request by standing up and stretching out his arms to facilitate the search. When the officer asked the defendant to open his clenched fists, the defendant, without objection, opened both hands. “ ‘Voluntarily responding to a police request, which most citizens will do, does, not negate “the consensual nature of the response.” ’ ” Lawrence, 17 Va.App. at 144, 435 S.E.2d at 593 (citations omitted).

Upon observing the white substance in the defendant’s hand, Loperl had probable cause to arrest him for the possession of narcotics. Therefore, the subsequent search of the defendant which led to the discovery of twenty-five bags of cocaine was lawful as incident to a valid arrest. See Buck v. Commonwealth, 20 Va.App. 298, 304, 456 S.E.2d 534, 537 (1995).

For the foregoing reasons, we affirm the appellant’s conviction.

Affirmed.