PRESENT: Hassell, C.J., Keenan, 1 Koontz, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.
MICHAEL EUGENE JONES
OPINION BY
v. Record No. 091539 JUSTICE LEROY F. MILLETTE, JR.
April 15, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether a lawful traffic stop
transformed into an unlawful seizure in violation of the Fourth
Amendment when police seized the defendant’s wallet during a pat
down, thereby rendering the defendant’s consent to search his
vehicle invalid.
BACKGROUND
We will state the facts in the light most favorable to the
Commonwealth, the prevailing party below. Jones v.
Commonwealth, 279 Va. 52, 55, 688 S.E.2d 269, 270 (2010).
Detectives I. McNett and N. L. Deluca of the Portsmouth Police
Department were patrolling in a “high crime/high drug area” in
Portsmouth when they saw a vehicle, with a driver and a front-
seat passenger, parked in a public roadway impeding traffic.
The detectives observed a third individual leaning into the
vehicle. Detective McNett, who testified that he had observed
over one hundred drug transactions and had been involved in over
1
Justice Keenan participated in the hearing and decision of
this case prior to her retirement from the Court on March 12,
five hundred drug arrests during his career, saw what appeared
to be a “hand-to-hand transaction” between the individual
leaning into the vehicle and the driver, who the detectives
eventually determined to be Michael Eugene Jones.
Believing they had witnessed a narcotics transaction, the
detectives stopped Jones’ vehicle. Detective McNett approached
the driver’s side of the vehicle and asked Jones for his
driver’s license and vehicle registration while Detective Deluca
approached and spoke with the front-seat passenger. Jones did
not produce his driver’s license or vehicle registration and was
“visibly shaking and breathing hard.” Detective McNett asked
Jones to step out of the vehicle, and at that point, Detective
Deluca began questioning Jones while Detective McNett questioned
the passenger. The passenger provided Detective McNett with his
identification. After determining that the passenger had no
warrants, Detective McNett told him he was free to leave, and
the passenger left.
When Detective Deluca asked Jones whether he had any
information or identification on him, Jones provided Detective
Deluca with a purported name and social security number. 2 The
detectives provided a dispatcher with the name and social
2010.
2
The detectives did not have the ability to verify that the
name and social security number Jones’ provided them were his
real name and social security number.
2
security number Jones gave them to check for a valid driver’s
license and possible warrants. While the information was being
confirmed, Officer Deluca conducted a pat down of Jones for his
safety based upon Jones’ nervous behavior, the nature of the
area, and his suspicion that Jones had participated in a
narcotics transaction. During the pat down, Detective Deluca
felt what he believed was a wallet. Detective Deluca testified
that this “shocked” him because of Jones’ statement that he did
not have any information or identification with him. Jones told
Detective Deluca that the wallet belonged to his cousin.
Detective Deluca “asked to look at the wallet, pulled it out,
[and] found a blank check . . . with the name . . . Michael
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Eugene Jones on it.”
The name Michael Eugene Jones was not the same name Jones
had given the detectives. Less than a minute later, the police
dispatcher notified the detectives that the name Jones provided
for the driver’s license and warrant check was “good.” As he
continued to tell Detective Deluca that the wallet belonged to
his cousin, Jones remained extremely nervous, shaking, and
breathing more heavily, and started looking around in different
directions rather than talking to the detective. Detective
Deluca placed Jones in “investigative detention,” handcuffed
3
Detective Deluca did not testify that Jones responded in
any way to his request to look at the wallet.
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him, and placed him in the passenger side of the police vehicle.
Because Detective Deluca was still trying to determine Jones’
true identity, he asked the dispatcher to have a uniformed
officer come to the scene with a computer capable of verifying
Jones’ identity with a picture.
About 10 minutes after the initial stop, as the detectives
were still waiting for the uniformed officer and Jones was
handcuffed in the police vehicle, Detective McNett asked Jones
whether he could search his vehicle. Jones replied, “sure, no
problem.” A search of Jones’ vehicle yielded two firearms and a
substance that was subsequently identified as heroin.
Jones was indicted for possession of a firearm by a
convicted felon, possession with intent to distribute heroin,
and possession of a firearm while possessing with intent to
distribute heroin. Jones filed a motion to suppress all
evidence resulting from what he contended was an unlawful
seizure. The circuit court overruled Jones’ motion to suppress.
After a bench trial, Jones was convicted of the offenses charged
in the indictment.
Jones appealed his convictions to the Court of Appeals,
which denied his petition by order, finding that the initial
detention had not ended and that Jones’ consent to search was
valid. Jones v. Commonwealth, Record No. 2050-08-1 (March 18,
2009). A three-judge panel affirmed the judgment denying Jones’
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petition. Jones v. Commonwealth, Record No. 2050-08-1 (July 2,
2009). We awarded Jones this appeal.
DISCUSSION
The standard of review in this case is well settled.
In reviewing the denial of a motion to suppress
evidence claiming a violation of a person’s Fourth
Amendment rights, we consider the facts in the light
most favorable to the Commonwealth, the prevailing
party at trial. The burden is on the defendant to
show that the trial court committed reversible error.
We are bound by the trial court’s factual findings
unless those findings are plainly wrong or unsupported
by the evidence. We will review the trial court’s
application of the law de novo.
Whitehead v. Commonwealth, 278 Va. 300, 306-07, 683 S.E.2d 299,
301 (2009) (citations omitted).
On appeal to this Court, Jones assigns error to the Court
of Appeals’ approval of the circuit court’s denial of his motion
to suppress. Jones argues that the detectives exceeded the
scope of the pat down for weapons by removing his wallet and
examining the contents without probable cause or his consent.
Jones notes that Detective Deluca knew the object was a wallet,
and thus did not have probable cause to seize the wallet because
he knew it was neither a weapon nor contraband.
Jones also asserts he was illegally seized when his
detention continued after the police dispatcher notified the
detectives that the identification information Jones provided
was “good,” because Detective Deluca testified that he was
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detaining Jones at that point based on the conflicting
identification information he had obtained from the illegal
seizure of Jones’ wallet. Jones contends that if Detective
Deluca had not illegally seized the wallet, Jones would have
been released upon confirmation from the dispatcher.
Jones also argues that any consent he gave the detectives
to search his vehicle was invalid because it was the result of
his illegal detention after he should have been released upon
the report from the dispatcher. Jones asserts that he was
seized when the detectives placed him in “investigative
detention,” handcuffed him, and placed him in the police
vehicle. Jones contends that he was illegally seized by his
continued detention at the time Detective McNett asked for his
consent to search, and that the consent was not sufficiently
attenuated from the illegal seizure to purge the taint of that
illegal seizure. According to Jones, the evidence he objected
to in his motion to suppress is “fruit of the poisonous tree”
that would not have been found by the detectives but for the
exploitation of the “primary illegality,” the unconstitutional
continued detention. Wong Sun v. United States, 371 U.S. 471,
487-88 (1963). Jones argues that the recovery of the gun,
drugs, and his statements cannot be said to be “purged of the
primary taint.” Id.
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The Commonwealth responds that Jones’ detention did not
amount to an unlawful seizure because the detectives had
reasonable suspicion to believe that Jones was involved in
criminal activity throughout the entire encounter. The
Commonwealth argues that Detective Deluca’s subjective reason
for the continued detention, to verify the conflicting
identification information found on the blank check, is
irrelevant for Fourth Amendment analysis because the
circumstances, viewed objectively, justified Jones’ detention.
Assuming that Detective Deluca did exceed the scope of the
pat down and violated the Fourth Amendment when he seized Jones’
wallet, the Commonwealth argues that Jones’ consent to search
the vehicle was not obtained as a result of the illegal seizure.
According to the Commonwealth, the consent was valid because the
continued detention was lawful and the consent was not obtained
by an exploitation of any illegality.
Seizure of Jones’ Wallet
It is well established that during an investigative stop, a
police officer may conduct a limited pat down for weapons if the
officer reasonably believes that the criminal suspect may be
armed and dangerous. Terry v. Ohio, 392 U.S. 1, 27 (1968). We
recently stated:
An officer who conducts a Terry pat-down search
is justified in removing an item from a subject’s
pocket if the officer reasonably believes that the
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object might be a weapon. Additionally, the removal
of an item from a subject’s pocket is also justified
if the officer can identify the object as suspicious
under the “plain feel” variation of the plain view
doctrine. However, an item may not be retrieved under
the plain view doctrine unless it is “immediately
apparent” to the officer that the item is evidence of
a crime.
Grandison v. Commonwealth, 274 Va. 316, 319-20, 645 S.E.2d 298,
300 (2007) (citations omitted).
In this case, Detective Deluca was not justified in seizing
Jones’ wallet because Detective Deluca testified that he
believed the item he seized was a wallet and not a weapon or
contraband. Based upon Detective Deluca’s testimony, we
conclude that Detective Deluca did not have probable cause to
retrieve the wallet from Jones’ possession. Additionally, the
record shows that Detective Deluca asked Jones whether he could
“look at the wallet,” but the record does not show that Jones
responded verbally or in any other way to this request. Viewing
the evidence in the light most favorable to the Commonwealth, we
cannot conclude that Jones consented to the seizure of his
wallet. Therefore, the seizure of Jones’ wallet by the
detectives was in violation of his Fourth Amendment rights.
However, the dispositive issue in this case is not whether
the detectives’ seizure of Jones’ wallet was an illegal seizure.
Rather, the dispositive issue is whether the unlawful seizure of
the wallet transformed a concededly valid investigatory stop
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into an illegal detention by unlawfully extending that
detention.
Legality of Jones’ Detention
A police officer may conduct a brief investigatory stop
when the officer, in light of his training and experience, has
reasonable, articulable suspicion that criminal activity is
afoot. Terry, 392 U.S. at 21, 27, 30. To comport with the
protections afforded by the Fourth Amendment, a traffic stop
must be justified by an objective manifestation that the person
stopped is engaged, or is about to be engaged, in criminal
activity. United States v. Cortez, 449 U.S. 411, 417 (1981).
The court must consider the totality of the circumstances in
determining whether the police officer had a particularized and
objective basis for suspecting that the person stopped may be
involved in criminal activity. Id. at 417-18. “[A]n officer's
subjective characterization of observed conduct is not relevant
to a court’s analysis concerning whether there is a reasonable
suspicion because the Court’s review of whether there was
reasonable suspicion involves application of an objective rather
than a subjective standard.” Harris v. Commonwealth, 276 Va.
689, 697, 668 S.E.2d 141, 146 (2008).
The Supreme Court recently stated:
A lawful roadside stop begins when a vehicle is
pulled over for investigation of a traffic violation.
The temporary seizure of driver and passengers
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ordinarily continues, and remains reasonable, for the
duration of the stop. Normally, the stop ends when
the police have no further need to control the scene,
and inform the driver and passengers they are free to
leave.
Arizona v. Johnson, 555 U.S. ___, ___, 129 S.Ct. 781, 788
(2009).
Jones does not challenge the legality of the initial stop.
Rather, Jones argues that his seizure became illegal when the
detectives were notified that the information Jones provided
them concerning his name and social security number was “good.”
Jones asserts that as soon as a dispatcher confirmed that the
name Jones provided was a licensed driver without any
outstanding warrants, the detectives no longer had reasonable,
articulable suspicion justifying a continuation of Jones’
detention. We disagree with Jones.
When the detectives first observed Jones’ vehicle, it was
parked in a public street impeding the flow of traffic. This
gave the detectives reasonable suspicion to effectuate a traffic
stop because impeding the flow of traffic on a highway is
prohibited by Portsmouth City Ordinance § 22-561(a). 4 The
detectives were justified in stopping Jones’ vehicle and
conducting a brief, investigatory stop regarding the traffic
4
The ordinance states, in pertinent part, that “[n]o
vehicle shall be stopped in such a manner as to impede or render
dangerous the use of the highway by others, except in the case
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offense as well as the apparent hand-to-hand transaction in a
high crime, high drug area.
Even though the information Jones provided the detectives
was confirmed to be that of a valid driver, that confirmation
did not prove that Jones was, in fact, the person so identified.
Without a valid form of identification, it was impossible for
the detectives to determine whether Jones was who he said he
was. It was not unreasonable for the detectives to continue to
detain Jones for a reasonable period of time, awaiting a
uniformed officer with a computer, in order to access a
photograph of the person whose name Jones had provided.
Determining Jones’ true identity was reasonably necessary to the
traffic stop, both in investigating the apparent traffic offense
and the suspected drug transaction. Thus, the temporary
continued seizure of Jones did not amount to an unlawful
detention because determining Jones’ true identity was within
the scope of the unchallenged investigatory stop and was not
unreasonable.
CONCLUSION
Although the seizure of Jones’ wallet was unlawful, Jones’
detention remained lawful because at the time of the seizure the
detectives were still trying to ascertain Jones’ identity, which
of an emergency as the result of an accident or mechanical
breakdown . . . .”
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was within the scope of the traffic stop. Because Jones was
lawfully detained at the time he consented to the search of his
vehicle, his consent was not the result of an illegal detention
and remained valid.
Therefore, we hold that Jones failed to show that the
circuit court committed reversible error in denying his motion
to suppress. Accordingly, we will affirm the judgment of the
Court of Appeals.
Affirmed.
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