Commonwealth v. Jurl Vincent Sterns ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1213-02-1 JUDGE JAMES W. BENTON, JR.
OCTOBER 29, 2002
JURL VINCENT STERNS
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Louis R. Lerner, Judge
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellant.
Timothy G. Clancy (Moschel, Gallo & Clancy,
L.L.C., on brief), for appellee.
A grand jury indicted Jurl Vincent Sterns for possession of
cocaine and possession of a firearm while in possession of
cocaine. At the conclusion of a pre-trial hearing, the trial
judge granted Sterns's motion to suppress evidence. Pursuant to
Code § 19.2-398, the Commonwealth appeals and contends the trial
judge erred in ruling that the initial encounter between Sterns
and the officer was not consensual. For the reasons that follow,
we reverse the suppression order.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
On appeal from the order granting the motion to suppress, we
view the evidence in the light most favorable to Sterns.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991). So viewed, the evidence proved a police dispatcher
sent Officers Hake and Ewing to an apartment complex at night to
investigate a report from an anonymous complainant that persons
were selling and smoking drugs. The uniformed officers arrived at
the apartment parking lot in separate police vehicles, exited
their vehicles, and began to walk to the rear of the apartments.
Four car lengths ahead of his vehicle, Officer Hake saw Sterns
exit a car and stand next to the car while eating. Officer Hake
testified that he saw no other people in the parking lot, and he
described the events as follows:
He was just standing there. At that
point I approached him and I was several
feet from him. I said, do you mind if I
talk to you for a moment? Mr. Sterns agreed
to speak to me. I approached him.
I asked him -- I explained to him the
complaint that we had in the area and why we
were out there and I asked him if he
observed anybody doing drugs or dealing
drugs in the parking lot of the apartment
complex. He said he did not and at this
point I asked him if he had any weapons or
narcotics on him. He said that he had his
gun on him.
At that point Officer Ewing was
approaching also. He was on the other side
and he started to walk towards us. He heard
our conversation. He asked Mr. Sterns to
place his hands on his head. . . .
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* * * * * * *
At that point I conducted a pat down of
his outer clothing and located a weapon, a
handgun on his left side. I'm not sure if
it was in his coat or his pants pocket, but
it was in one of those. He was placed in
handcuffs at that time.
Officer Ewing asked him if he had a
concealed weapons permit and he said that he
did not. At that point he was arrested and
placed in the police vehicle.
In a search incident to this arrest, the officers seized cocaine
from Stern's pocket.
In his motion to suppress, Sterns relied on McGee v.
Commonwealth, 25 Va. App. 193, 487 S.E.2d 259 (1997) (en banc),
and argued that he was unlawfully detained when the officers
approached and questioned him. On that basis, the trial judge
granted the motion to suppress.
II.
In McGee, we held as follows:
When the police expressly inform an
individual that they have received
information that the individual is engaging
in criminal activity, the police "convey a
message that compliance with their requests
is required" and "that failure to cooperate
would lead only to formal detention."
Thus, when 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.
When confronted with an accusation from
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police, such as, "we know you are selling
drugs from this location, let us search
you," no reasonable person would feel free
to leave. Whether a seizure occurs must be
determined by evaluating the facts of each
case to determine whether the manner in
which the police identified the individual
as a suspect conveys to the person that he
or she is a suspect and is not free to
leave.
25 Va. App. at 200-01, 487 S.E.2d at 262-63 (citations and
footnote omitted).
Although we held that a detention occurred under those
circumstances, we specifically noted that the officer's
"statement to [McGee] did not merely convey a message that the
officers were conducting a general investigation in response to
a report of drug dealing." Id. at 201, 487 S.E.2d at 263.
Moreover, in contrast to the factual circumstances in McGee, we
have consistently held that "'[l]aw enforcement officers do not
violate the Fourth Amendment merely by approaching an individual
on the street, identifying themselves and asking the individual
questions.'" Garrison v. Commonwealth, 36 Va. App. 298, 307,
549 S.E.2d 634, 638 (2001) (quoting Buck v. Commonwealth, 20
Va. App. 298, 301-02, 456 S.E.2d 534, 535-36 (1995)).
Accordingly, we hold that the initial encounter between the
officers and Sterns was consensual. We do not address, because
the trial judge did not, whether the ensuing "pat down" search
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was lawful. For these reasons, we reverse the order suppressing
the evidence.
Reversed.
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