Harris v. Commonwealth

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, S.J.

LEON THOMAS HARRIS

v. Record No. 022168 OPINION BY JUSTICE ELIZABETH B. LACY
June 6, 2003
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether Leon Thomas Harris

was illegally detained by police and whether evidence obtained

in a search of his truck should have been suppressed because

it was obtained as a result of the illegal detention.

FACTS

On May 25, 2000, at approximately 4:00 a.m., Officer

Blaine Davis initiated a traffic stop based on a broken

license plate light he observed on a truck. Harris, the

driver, and a single passenger were in the truck. Shortly

after Officer Davis stopped the truck, a second police officer

arrived on the scene. Both police vehicles were marked cars,

and their flashing lights were activated.

Officer Davis asked Harris for his driver's license and

vehicle registration, but Harris produced only his social

security card. Harris told Officer Davis that he knew he had

been stopped because he had no license plate light. Officer

Davis told Harris to get out of the truck. While they were

standing outside of the truck, Officer Davis asked Harris
questions to confirm Harris' identity. After confirming

Harris' identity and, using a hand-held radio, verifying that

Harris had a valid driver's license with the Virginia

Department of Motor Vehicles, Officer Davis returned the

social security card to Harris. He did not charge Harris with

a traffic offense.

The officer then asked Harris if he had anything illegal

in the truck or on his person. Harris replied that he did

not. When Officer Davis asked Harris if he could search the

truck, Harris consented. Officer Davis performed a pat down

search on Harris and, after finding no weapons, told Harris to

sit in the front passenger seat of Officer Davis' patrol car.

The passenger in the truck was told to get out of the vehicle.

The passenger complied and stood beside the passenger side of

Officer Davis' vehicle.

Officer Davis testified that during this time he had no

reasonable articulable suspicion that either Harris or his

passenger "had done anything illegal" and that Harris was free

to go. However, Officer Davis did not tell either Harris or

his passenger that they were free to go.

Officer Davis found several stolen items when he searched

the vehicle. Harris was subsequently charged with two counts

of grand larceny.

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 Prior to his trial, Harris filed a motion to suppress all

evidence seized during the search of his truck, maintaining

that the search and seizure violated his rights under the

Fourth and Fourteenth Amendments of the United States

Constitution and under Article I, § 10 of the Constitution of

Virginia. The trial judge denied Harris' motion, finding that

the stop was a "Terry-stop with a consent to search."

Following a bench trial, Harris was convicted of two counts of

petit larceny and sentenced to twelve months in jail on each

count, with eleven months suspended, and the sentences to run

concurrently.

The Court of Appeals affirmed the convictions, finding

that the officer returned Harris' social security card,

terminating the original traffic stop, the continuing

encounter was a consensual encounter, and that Harris'

subsequent consent to the search was voluntary. The Court of

Appeals also concluded that the evidence was sufficient to

support the convictions. See Harris v. Commonwealth, 38 Va.

App. 680, 568 S.E.2d 385 (2002). We granted Harris an appeal

limited to the issues concerning whether Harris was illegally

detained and whether the evidence obtained in the search of

Harris' truck should have been suppressed.

THE DETENTION

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 Harris does not challenge the legality of the initial

traffic stop. He contends that Officer Davis violated his

Fourth Amendment rights when the officer extended a lawful

detention for a traffic infraction into an unlawful, non-

consensual seizure. Harris further contends that his consent

to the search was not voluntary and, therefore, the evidence

obtained as a result of his illegal seizure must be

suppressed.

The Fourth Amendment protects persons from unreasonable

searches and seizures. U.S. Const. amend. IV. Police

officers do not violate the Fourth Amendment when they stop

and question an individual if they have reasonable articulable

suspicion that the person is engaged in criminal activity,

Terry v. Ohio, 392 U.S. 1, 30 (1968), or when the person's

encounter with the police is consensual. Florida v. Bostick,

501 U.S. 429, 437 (1991); Florida v. Royer, 460 U.S. 491, 501

(1983). There is no "litmus test" for determining whether an

encounter is consensual or constitutes an illegal seizure.

Id. at 506. If, however, a reasonable person would not feel

free to decline an officer's requests or would not feel free

to leave, the encounter is not consensual and constitutes an

illegal seizure under the Fourth Amendment. United States v.

Mendenhall, 446 U.S. 544, 558-59 (1980).

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 Various factors have been identified as relevant in

determining whether a seizure has occurred, including the

threatening presence of a number of police officers, the

display of weapons by officers, physical contact between an

officer and a citizen, an officer's language or tone of voice

compelling compliance, the retention of documents requested by

an officer, and whether a citizen was told that he or she was

free to leave. See Ohio v. Robinette, 519 U.S. 33, 36 (1996);

Royer, 460 U.S. at 504; Mendenhall, 446 U.S. at 554. The

decision whether the encounter was consensual must be made

based on the totality of the circumstances. Mendenhall, 446

U.S. at 554.

On appeal, we apply a de novo standard of review in

determining whether a person has been seized in violation of

the Fourth Amendment. McCain v. Commonwealth, 261 Va. 483,

489, 545 S.E.2d 541, 545 (2001). However, we also must review

findings of historical fact for clear error and give due

weight to inferences drawn from those facts. Ornelas v.

United States, 517 U.S. 690, 699 (1996); Reittinger v.

Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000).

In this case, when Harris was stopped initially, he told

Officer Davis that he knew his license plate light was not

working. Harris also knew that, when asked for his driver's

license and vehicle registration card, he handed Officer Davis

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only his social security card. Although Officer Davis, after

returning Harris' social security card, considered Harris free

to go, he did not tell Harris that he could leave.

Furthermore, Officer Davis testified that he did not suspect

Harris of any other criminal activity when he asked Harris for

consent to search the truck.

The traffic stop was concluded when Officer Davis

returned the social security card to Harris and, as stated by

the Court of Appeals, "the detention supported by reasonable

articulable suspicion ended." Harris, 38 Va. App. at 687, 568

S.E.2d at 388. Thus, lawful continuation of the encounter

between Harris and Officer Davis required that it proceed on a

consensual basis. The Court of Appeals found that the ensuing

encounter was consensual because there was no indication that

Harris was restrained. Id. at 688, 568 S.E.2d at 389. We

disagree.

At the time Harris was questioned about possession of

illegal goods, he had not been told that he was free to leave

or that Officer Davis was not going to charge him with a

traffic violation. The failure to affirmatively inform Harris

that he was free to leave does not by itself require a finding

that the ensuing encounter was non-consensual. Robinette, 519

at 39-40. But in this case Harris knew he had committed a

traffic violation and knew he had not complied with the

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officer's request for his driver's license and vehicle

registration. The officer did nothing to indicate to Harris

that he was no longer subject to detention for a traffic

violation. Additionally, Harris remained in the presence of

two armed, uniformed police officers and two patrol vehicles

with activated flashing lights.

Under these circumstances, we believe that a reasonable

person would not have known that the investigation of the

traffic offense had terminated and, thus, would not have felt

free to disregard the officer's questions or have felt free to

leave. Therefore, when Officer Davis began questioning Harris

about possession of contraband, the encounter was not

consensual and Harris was seized for purposes of the Fourth

Amendment. Because Officer Davis had neither a warrant nor

reasonable suspicion to believe that Harris was engaged in any

criminal activity, this seizure violated Harris's Fourth

Amendment rights.

SUPPRESSION OF EVIDENCE

Harris maintains that because the evidence obtained in

the search of his vehicle was obtained as a result of a

violation of his Fourth Amendment rights, it should have been

suppressed under the "fruit of the poisonous tree" doctrine.

That doctrine, initially discussed in Wong Sun v. United

States, 371 U.S. 471, 487-88 (1963), provides that "statements

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given during a period of illegal detention are inadmissible

even though voluntarily given if they are the product of the

illegal detention and not the result of an independent act of

free will." Royer, 460 U.S. at 501.

In this case, both the trial court and the Court of

Appeals found that Harris' consent to search was voluntary.

The validity of this finding is suspect, however, because both

courts considered Harris' consent to have taken place during a

legal encounter between Officer Davis and Harris. *

Nevertheless, as stated above, voluntariness alone is not

sufficient to overcome the taint arising from the unlawful

seizure. Evidence obtained in the search of Harris' truck is

admissible only if it is not the product of an illegal seizure

and is the result of an independent act of free will.

Here, the consent to search occurred within minutes of

the illegal detention and under circumstances in which Harris

was not free to leave or disregard the officer's inquiry. The

consent, search, and evidence recovered were the products of

an illegal detention. Furthermore, nothing on this record

indicates that the evidence in issue was obtained by the

police pursuant to an independent act of free will. See Hart

*
The trial court considered the consent to search part of
a lawful "Terry-stop." The Court of Appeals held that the
consent to search was part of a consensual encounter.

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v. Commonwealth, 221 Va. 283, 289, 269 S.E.2d 806, 810 (1980).

But see Reese v. Commonwealth, 220 Va. 1035, 1040, 265 S.E.2d

746, 749 (1980).

The Commonwealth has the burden to establish that Harris'

consent to search was not "obtained by exploitation of the

illegal action." Hart, 221 Va. at 288, 269 S.E.2d at 809.

Based on this record, we conclude that the Commonwealth failed

to meet this burden. Thus, the evidence obtained as a result

of the illegal seizure should have been suppressed as the

"fruit" of an illegal seizure. Accordingly, we will reverse

the judgment of the Court of Appeals, vacate Harris'

conviction, and remand the case to the Court of Appeals with

direction that the case be remanded to the trial court for

further proceedings if the Commonwealth be so advised.

Reversed and remanded.

JUSTICE KINSER, with whom SENIOR JUSTICE CARRICO joins,
dissenting.

Unlike the majority, I conclude that the encounter that

ensued between Officer Blaine Davis and the defendant, Leon

Thomas Harris, after Officer Davis returned the social

security card to Harris was consensual because a reasonable

person in those circumstances would have felt free to leave

and to refuse Officer Davis’ request to search the vehicle. I

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further conclude that Harris voluntarily consented to the

search. Thus, I respectfully dissent.

“Law enforcement officers do not violate the Fourth

Amendment’s prohibition of unreasonable seizures merely by

approaching individuals on the street or in other public

places and putting questions to them if they are willing to

listen.” United States v. Drayton, 536 U.S. 194, 200 (2002).

Even when a law enforcement officer has no basis to suspect

that a particular individual is engaged in criminal activity,

the officer “may pose questions, ask for identification, and

request consent to search . . . provided [the officer does]

not induce cooperation by coercive means.” Id. at 201. “[T]o

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.” Florida v. Bostick, 501

U.S. 429, 439 (1991). “If a reasonable person would feel free

to terminate the encounter, then he or she has not been

seized.” Drayton, 536 U.S at 201. The “reasonable person”

test is objective and “presupposes an innocent person.”

Bostick, 501 U.S. at 437-38.

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 When determining whether a reasonable person would feel

free to terminate an encounter, a court may consider the

language and tone of voice used by the police officer, whether

the officer displayed a weapon, and whether there was physical

contact between the officer and the individual. United States

v. Mendenhall, 446 U.S. 544, 554 (1980); see also, Bolden v.

Commonwealth 263 Va. 465, 471, 561 S.E.2d 701, 704 (2002).

Other relevant factors include the number of officers present,

the location, time and duration of the encounter, United

States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996), and

whether the police officer retained the individual’s

identification or personal property, United States v. Weaver,

282 F.3d 302, 310 (4th Cir. 2002), cert. denied, ___ U.S. ___,

123 S.Ct. 186 (2002).

In Reittinger v. Commonwealth, 260 Va. 232, 532 S.E.2d 25

(2000), this Court considered whether a defendant was

unlawfully seized following a routine traffic stop. A deputy

sheriff stopped a van being operated by Reittinger because the

van had “ ‘only one operable headlight.’ ” Id. at 234, 532

S.E.2d at 26. After Reittinger displayed a new headlight that

he planned to install on the van, the deputy issued only a

verbal warning and told Reittinger that he was “ ‘free to

go.’ ” Id. The deputy then asked Reittinger if he had any

illegal weapons or drugs in the vehicle. Id. When Reittinger

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replied that he did not, the deputy asked to search the van

and repeated the request twice more while Reittinger consulted

with the passengers in the vehicle. Id. Reittinger never

answered the deputy’s repeated requests to search but simply

exited the vehicle. Id. During a subsequent “pat down” search

of Reittinger, the deputy found a smoking pipe containing

marijuana residue. Id.

In considering the circumstances of the encounter, we

noted that Reittinger had been stopped in a rural area in the

nighttime, was in the presence of two armed deputies, and was

asked repeatedly for consent to search the vehicle. Id. at

236-37, 532 S.E.2d at 27. We determined that, in those

circumstances, a reasonable person would not have felt “free

to disregard the deputies and simply drive away.” Id. at 237,

532 S.E.2d at 28.

In the present case, the majority notes that, although

Officer Davis returned Harris’ social security card, he did

not inform Harris that he was free to leave or state whether

he would be charged with a traffic offense. Further noting

that Harris was in the presence of two armed police officers

and two patrol vehicles with activated flashing lights, the

majority concludes that a reasonable person would not have

felt free to terminate the encounter. I disagree.

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 In my view, the majority ignores several important

factors that demonstrate that Harris was not seized after the

traffic stop ended. The encounter between Harris and Officer

Davis occurred at 4:00 a.m. Thus, the flashing lights on the

patrol cars served an important safety function, i.e., they

alerted other drivers to the presence of vehicles and people

along the roadside. The encounter here, unlike that in

Reittinger, took place in “a built-up commercial area.”

Although two officers were present, that fact is not

dispositive. See Drayton, 536 U.S. at 205 (presence of second

officer at front of bus did not “tip the scale in respondents’

favor”); Immigration & Naturalization Service v. Delgado, 466

U.S. 210, 219 (1984) (no seizure even though several uniformed

INS agents were positioned near exits of factory). In this

case, the second officer’s participation in the encounter was

limited to “watching” the passenger. Further, there is no

evidence that either officer brandished his weapon, physically

touched Harris, or used a tone of voice or language indicating

that Harris was not free to leave or that compliance with the

request to search was compelled.

Instead, Officer Davis returned Harris’ social security

card to him after verifying that Harris had provided accurate

information about his identity and had a valid driver’s

license. Only then did Officer Davis ask Harris whether he

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had anything illegal in the vehicle or on his person. See

Lattimore, 87 F.3d at 653. Finally, in my view, the most

important distinction between this case and Reittinger is the

fact that Harris, unlike Reittinger, was asked only once for

permission to search his vehicle and that he expressly

consented in response to that single request. See United

States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996)

(“ ‘accusatory, persistent, and intrusive’ questioning may

turn an otherwise voluntary encounter into a coercive one if

it conveys the message that compliance is required”) (quoting

United States v. Little, 60 F.3d 708, 712 (10th Cir. 1995)).

Thus, I conclude that Harris was not unlawfully seized in

violation of the Fourth Amendment.

I must now determine whether Harris’ consent to search

was valid. “The Fourth Amendment test for a valid consent to

search is that the consent be voluntary, and ‘[v]oluntariness

is a question of fact to be determined from all the

circumstances.’ ” Ohio v. Robinette, 519 U.S. 33, 40 (1996)

(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49

(1973)). Where, as here, “the question of voluntariness

pervades both the search and seizure inquiries, the respective

analyses turn on very similar facts.” Drayton, 536 U.S. at

206.

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 The evidence shows that Harris expressly consented to the

search of his truck. All the circumstances demonstrating that

the encounter between Harris and Officer Davis was consensual

also establish that Harris’s consent to search was voluntarily

given. The only additional step Officer Davis could have

taken to ensure that Harris’ consent was voluntary would have

been to inform Harris of his right to refuse the request to

search the vehicle. However, “ '[w]hile knowledge of the

right to refuse consent is one factor to be taken into

account, the government need not establish such knowledge as

the sine qua non of an effective consent.’ ” Robinette, 519

U.S. at 39 (quoting Schneckloth, 412 U.S. at 227).

Based on the totality of the circumstances, I conclude

that Harris’ consent to search was voluntary. Therefore, the

search did not violate the Fourth Amendment. Other courts

have found that consents to search given in similar

circumstances were voluntary. E.g., United States v. Erwin,

155 F.3d 818, 823 (6th Cir. 1998) (finding consent to search

given following lawful traffic stop was voluntary where

evidence showed that deputies did not show force or use

threatening language); State v. Ready, 565 N.W.2d 728, 733

(Neb. 1997) (finding that the totality of the circumstances

established defendant’s consent was voluntary where evidence

showed that he agreed to let the officer search his vehicle

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and no evidence of coercion was presented); Burgos-Seberos v.

State, 969 P.2d 1131, 1135 (Wyo. 1998) (finding that the trial

court did not abuse its discretion by denying motion to

suppress where evidence showed defendant “voluntarily

grant[ed] his permission for [the officer] to search his car”

and there was no evidence of coercion although “two officers

were present and the hour was late”).

For these reasons, I respectfully dissent and would

affirm the judgment of the Court of Appeals of Virginia.

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