Eric Michael Jackson v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia
ERIC MICHAEL JACKSON
MEMORANDUM OPINION * BY
v. Record No. 2734-01-2 JUDGE G. STEVEN AGEE
OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Learned D. Barry, Judge
Craig W. Stallard, Assistant Public Defender
(Office of the Public Defender, on briefs),
for appellant.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Eric Michael Jackson (Jackson) was convicted in the
Richmond Circuit Court of possession of heroin, in violation of
Code § 18.2-250, and was sentenced to nine months incarceration.
On appeal, Jackson contends the trial court erred in denying his
motion to suppress evidence he alleges was gathered in violation
of the Fourth Amendment. For the following reasons, we disagree
and affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. As the parties are fully conversant
with the record in this case and because this memorandum opinion
carries no precedential value, only those facts necessary to a
disposition of this appeal are recited.
I. STANDARD OF REVIEW
"At a hearing on a defendant’s motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant's Fourth Amendment
rights." Reel v. Commonwealth, 31 Va. App. 262, 265, 522 S.E.2d
881, 882 (2000). "It[, however,] is well established that, on
appeal, appellant carries the burden to show, considering the
evidence in the light most favorable to the Commonwealth, that
the denial of a motion to suppress constitutes reversible error."
Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232,
233 (1993). "Ultimate questions of reasonable suspicion and
probable cause . . . involve questions of both law and fact and
are reviewed de novo on appeal." Neal v. Commonwealth, 27 Va.
App. 233, 237, 498 S.E.2d 422, 424 (1998) (citations omitted).
"A claim by a defendant that he was seized within the
contemplation of the Fourth Amendment 'presents a mixed question
of law and fact that is reviewed de novo on appeal.'" Bolden v.
Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002)
(citations omitted).
II. ANALYSIS
"Fourth Amendment jurisprudence recognizes three categories
of police-citizen confrontations: (1) consensual encounters, (2)
brief, minimally intrusive investigatory detentions, based upon
specific, articulable facts, commonly referred to as Terry stops,
and (3) highly intrusive arrests and searches founded on probable
cause." Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455
S.E.2d 744, 747 (1995). "'[L]aw enforcement officers do not
violate the Fourth Amendment by merely approaching an individual
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on the street or in another public place, by asking him if he is
willing to answer some questions . . . .'" Washington v.
Commonwealth, 29 Va. App. 5, 10, 509 S.E.2d 512, 514 (1999) (en
banc) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).
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." United
States v. Wilson, 953 F.2d 116, 121 (4th Cir.
1991) (quoting Florida v. Bostick, 501 U.S.
429, 431, 111 S. Ct. 2382, 2384, 115 L. Ed.
2d 389 (1991)); see also Richards v.
Commonwealth, 8 Va. App. 612, 615, 383 S.E.2d
268, 270 (1989). 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."
Wilson, 953 F.2d at 121.
Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870
(1992).
"[A] person is 'seized' only when, by
means of physical force or show of authority,
his freedom of movement is restrained . . . .
. . . 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."
Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648
(1992) (quoting United States v. Mendenhall, 446 U.S. 544, 553-54
(1980)).
"Voluntarily responding to a police request, which most
citizens will do, does not negate 'the consensual nature of the
response' even if one is not told that he or she is free not to
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respond." Grinton v. Commonwealth, 14 Va. App. 846, 849, 419
S.E.2d 860, 862 (1992) (quoting I.N.S. v. Delgado, 466 U.S. 210,
216 (1984)). "[T]he subjective beliefs of the person approached
are irrelevant to whether a seizure has occurred." United States
v. Winston, 892 F.2d 112, 116 (D.C. Cir. 1989) (citation
omitted).
Jackson contends he was "seized" without a showing of
reasonable suspicion and, therefore, the trial court erred by
denying his motion to suppress. The Commonwealth argues the
trial court's decision to deny the motion to suppress should be
affirmed because no seizure occurred.
On de novo review, we find that the encounter between
Jackson and the officers was consensual at its inception.
Therefore, there was no "seizure" during the initial conversation
between Officer Sprinkle and Jackson that implicated the Fourth
Amendment. 1
Jackson argues we cannot consider the consensual encounter
grounds without a separate analysis to examine the application of
affirming the trial court when it reaches the right result for
1
We are not barred by Rule 5A:18 from addressing the issue
of whether Jackson had a consensual encounter with the police.
"Rule 5A:18 does not require an appellee[, the Commonwealth in
this instance,] to raise an issue at trial before it may be
considered on appeal where the issue is not offered to support
reversal of a trial court ruling." Driscoll v. Commonwealth, 14
Va. App. 449, 451-52, 417 S.E.2d 312, 313 (1992) (citing Mason
v. Commonwealth, 7 Va. App. 339, 346, 373 S.E.2d 603, 607
(1988)). Because the Commonwealth offers its contention that
Jackson's encounter with Officer Sprinkle was consensual in
support of the trial court's denial of the motion to suppress,
Rule 5A:18 does not apply.
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the wrong reason. We disagree because in the context of a
determination of whether a seizure occurred under the Fourth
Amendment, the appellate court performs a de novo review of the
application of the law to the facts, unhindered by the trial
court's application of the law to those same facts. See Sykes v.
Commonwealth, 37 Va. App. 262, 267, 556 S.E.2d 794, 796 (2001).
Moreover, the trial court found, at least by implication, that
Jackson was seized and in making that determination had to
consider whether the encounter was consensual.
We find, in view of all the circumstances in the record
surrounding the incident, a reasonable person would have believed
that he was free to leave in this situation. Here, although both
officers were in uniform, neither officer drew his weapon,
physically restrained Jackson, or by show of force or authority
indicated that Jackson was not free to leave. Neither officer
initially approached Jackson, but rather, from approximately
fifty to seventy-five feet away, Officer Sprinkle called out to
Jackson, "Hey, come here. I need to talk to you." Jackson
stopped, and he subsequently answered Officer Sprinkle's
inquiries regarding identification.
The fact that Jackson complied with Officer Sprinkle's
request to "come here" does not make the encounter a seizure.
There is no evidence that Jackson's compliance with the officer's
request was unwillingly compelled. There is no evidence in the
record of a "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
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compelled." Mendenhall, 446 U.S. at 554; see also McCain v.
Commonwealth, 261 Va. 483, 545 S.E.2d 541 (2001).
The fact that Jackson was not told he could ignore the
officer's request does not change our analysis. "While most
citizens will respond to a police request, the fact that people
do so, and do so without being told that they are free not to
respond, hardly eliminates the consensual nature of the
response." Delgado, 466 U.S. at 216.
Our conclusion is supported by established case law. The
Supreme Court of Virginia has held, under circumstances very
similar to this case, that no Fourth Amendment seizure occurred.
In Baldwin, 243 Va. 191, 413 S.E.2d 645, the police officer
observed the defendant and his companion at 11:30 p.m. standing
at one end of a parking lot near a dumpster. About 15 feet away,
the officer "put a big floodlight on them . . . [and] said, 'you
two, come over here." Id. at 194, 413 S.E.2d at 646-47.
When they complied, the officer observed that Baldwin was
intoxicated. While searching Baldwin incident to an arrest for
public intoxication, the officer discovered drugs. Applying the
Mendenhall factors, the Court found that when the officer shined
the light on Baldwin and called for him and his companion to come
to him, the officer had not restrained Baldwin's liberty or
seized him for purposes of the Fourth Amendment. The encounter
had been consensual. Id. at 199, 413 S.E.2d at 649-50; see also,
Ford v. City of Newport News, 23 Va. App. 137, 142, 474 S.E.2d
848, 850 (1996) (holding a similar encounter to that in Baldwin
was consensual).
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The mere calling to a citizen to approach does not amount to
a stop implicating the Fourth Amendment unless joined with other
factors similar to those identified in Mendenhall and its
progeny. See Baldwin, 243 Va. at 196-99, 413 S.E.2d at 648-50;
see also, United States v. Moreno, 897 F.2d 26 (2d. Cir. 1990);
People v. King, 139 Cal. Rptr. 926 (Cal. Ct. App. 1977); People
v. Ortiz, 305 N.E.2d 418 (Ill. 1973). There are no such factors
in the case at bar.
Considering the totality of the circumstances and applying
the Mendenhall factors, we conclude Jackson was not seized within
the meaning of the Fourth Amendment until Officer Sprinkle placed
him under arrest for the outstanding warrants. Prior to that
time the encounter was consensual. Therefore, the discovery of
the heroin occurred in a legitimate and lawful search incident to
arrest.
Accordingly, as Jackson was not seized under the Fourth
Amendment prior to his arrest, we affirm the judgment of the
trial court to deny Jackson's motion to suppress and affirm
2
Jackson's conviction.
Affirmed.
2
Having found Jackson was not seized, we do not address the
issue of reasonable suspicion because it is not relevant when a
consensual encounter occurs.
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