Bolden v. Commonwealth

Present: All the Justices

MICHAEL JEROME BOLDEN
OPINION BY
v. Record No. 011407 CHIEF JUSTICE HARRY L. CARRICO
April 19, 2002
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINA

The question for decision in this drug case is whether the

Court of Appeals erred in affirming the trial court's denial of

a motion to suppress evidence obtained in the search of a

suitcase located in the trunk of a motor vehicle. The question

stems from a prosecution of Michael Jerome Bolden in the Circuit

Court of Arlington County for the possession of more than five

pounds of marijuana with the intent to distribute in violation

of Code § 18.2-248.1. 1

Following denial of the motion to suppress, the trial

court, sitting without a jury, convicted Bolden of the

possession charge and sentenced him to serve twelve years in the

penitentiary, with nine years suspended. In an unpublished

opinion, the Court of Appeals affirmed the conviction. We

awarded Bolden this appeal. 2

1
Code § 18.2-248(A) makes it unlawful to possess a
controlled substance with intent to distribute and Code § 18.2-
248.1(a)(3) provides a penalty of not less than five nor more
than thirty years when the controlled substance consists of more
than five pounds of marijuana.
2
The defendant was also convicted of transporting marijuana
into the Commonwealth with intent to distribute in violation of
 In his motion, Bolden sought to suppress "any and all

evidence obtained directly or indirectly as the result of the

illegal seizure of him and his effects on or about the 29th day

of December 1999." In a pretrial hearing on the motion, the

evidence showed that, on the date alleged, Officer Garrett

Daniel Polowy of the Arlington County Police Department, while

on routine patrol in a marked police cruiser, observed the

driver of a gold-colored automobile acting suspiciously. He

followed the car but lost sight of it briefly and then found it

parked in front of an Oriental rug store located next door to an

Econo Lodge hotel. Polowy pulled into the hotel parking lot to

keep the gold car under surveillance.

While seated in his cruiser, Polowy observed a man, who

turned out to be Bolden, walking toward the hotel from the

vicinity of the gold car. Bolden seemed to be "caught . . . off

guard" when he saw Polowy, who was in uniform; Bolden paused for

a moment, and then walked toward the hotel entrance. Polowy

left his cruiser, walked up to Bolden, and said, "Hi, how are

you doing?" Bolden "kind of nodded his head in response."

Polowy asked Bolden why he was in the area and if he had seen

the gold car or knew who had occupied it. Bolden said he had

Code § 18.2-248.01 but that conviction is not before the Court
in this appeal.

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been a guest at the hotel, and he disclaimed any knowledge of

the gold car. The two then walked into the hotel together.

Bolden took a seat in a chair directly in front of the

doors of the small lobby. Polowy asked the clerk at the front

desk whether Bolden was a guest at the hotel, and she stated

Bolden had been a guest but "had just checked out." Polowy then

radioed a fellow police officer, Corporal Dean Matthews, to come

to the hotel. While awaiting Matthews' arrival, Polowy and

Bolden engaged in "small talk" about the gold car. In the same

period, a telephone call for Bolden came into the front desk.

He left his seat, and the clerk handed him the cordless

telephone. He engaged in a conversation for 20 to 30 seconds

and returned to his chair.

Matthews arrived shortly, in uniform, and Polowy took him

aside and briefed him on the situation. Matthews then walked up

to Bolden, who was still sitting in the chair, and began talking

to him. Bolden told Matthews he was "just . . . waiting for a

cousin . . . to come and show him where to go because he was

going to the cousin's house." Matthews ultimately asked to see

Bolden's identification, and Bolden produced a New Mexico

driver's license. When Bolden produced the license, he stood up

and then took a step or two and leaned against a railing in the

lobby while he and Matthews talked. After the license "checked

out," Matthews returned it to Bolden.

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 In further questioning, Matthews asked Bolden about his

relationship with the gold car, about when he got to the hotel,

about where he was going, and about the cousin who was coming to

pick him up. Matthews then asked Bolden whether he would

consent to be searched there in the lobby, and Bolden replied

affirmatively. Polowy searched Bolden, and "no contraband or

anything illegal was found."

A minute or two after Matthews arrived at the hotel,

another uniformed officer, Jason Bryk, appeared, and he joined

Polowy and Matthews in the hotel lobby. All three officers were

armed, but the weapons were never removed from their holsters

during the encounter with Bolden.

During Matthews' questioning of Bolden, another telephone

call came into the hotel for Bolden. Instead of handing the

telephone to Bolden, the clerk handed it to Polowy, who said to

the caller, "Hi, how are you doing? How can I help you?" The

caller then hung up.

After the questioning of Bolden had continued for some 15

to 20 minutes, the hotel manager asked the officers to move out

of the lobby, and Matthews asked Bolden to "step outside." The

officers "turned and walked, and [Bolden] came with [them]."

Standing "just outside the front doors," Matthews continued

questioning Bolden.

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 Matthews asked Bolden where his luggage was, and Bolden

said it was in his car, pointing to a vehicle located on the

hotel parking lot. The officers ran a record check on the car

but apparently found nothing incriminating.

Matthews looked inside the car, saw a green bag sitting on

the rear seat, and asked Bolden if the bag was his. Bolden

responded affirmatively, and when Matthews asked him if there

were any guns or drugs in the bag, Bolden replied "no."

Matthews then asked Bolden for permission to search the bag, and

Bolden "just took a deep breath and put his head straight down

to the ground, [and] said nothing."

Matthews next asked Bolden whether there was anything else

in the car, and Bolden said there was a suitcase in the trunk.

Matthews inquired whether there were "any guns, drugs, or

anything like that in the suitcase," and Bolden said "no."

Matthews then asked if he "could open the trunk." Bolden

responded by "pulling the keys" out of his pocket and opening

the trunk. When Matthews asked if he could take the suitcase

out of the trunk and search it, Bolden stated "he would rather

it stay in the trunk."

Because there was a "drop-off" behind the car where it was

sitting at the end of the parking lot, it was difficult to reach

inside the trunk, and Bolden "volunteered to move the car ahead

so that [the officers] could search the suitcase." Bolden got

5
in the car, started it with his key, and "pulled it up a little

bit," but the move proved to be insufficient, and, at Matthews'

request, Bolden "started the car back up [and] pulled it up a

little bit further."

Bolden testified that when he moved his car, one of the

officers, at Matthews' direction, positioned his cruiser in

front of Bolden's vehicle. Bolden also testified that another

officer had placed his cruiser at the exit to the parking lot.

After Bolden moved his car, Matthews asked Bolden for

permission to search the suitcase, and Bolden "just took a deep

breath, and . . . put his head down." Matthews then said that

if Bolden had any contraband, he, Matthews, would prefer that

Bolden just give it up, rather than requiring Matthews to

conduct a search. Again, Bolden "just put his head down," but

finally told Matthews "[y]ou can look."

After a brief discourse by Matthews about the importance of

honesty and his preference for Bolden to give him what was in

the suitcase, Bolden said, "Go ahead and look, man." Matthews

opened the suitcase and found a taped-up bundle of marijuana.

The officers then arrested Bolden and advised him of his rights

under Miranda v. Arizona, 384 U.S. 436 (1966). Bolden agreed to

speak with Matthews and admitted the bundle contained fifty

pounds of marijuana worth about $45,000. All in all, the

6
officers' encounter with Bolden consumed approximately 30

minutes.

In denying Bolden's motion to suppress, the trial court

found that Bolden was "a mature, knowledgeable person" who

"maintained a controlled demeanor and in [the] courtroom . . .

showed that he has a strong presence about him and obvious

intelligence." The court further found that Bolden "thought

about" whether to give the police permission to search,

"implying that he knew he had a choice"; the "concept that he

was stopped from going about his business is rebutted by the

fact that he was where he wanted to be"; "he wanted to be at the

Econo Lodge waiting for [his cousin] to come to him"; "very

important is the fact that he elects to open the car . . .

elects to move it . . . elects to facilitate access to the

trunk"; he "makes the subtle distinction between you can't look

at the suitcase outside of the [trunk]"; "[h]e knew what he was

doing"; and he is "a reasonable person."

On appeal, Bolden points out that Corporal Matthews

admitted in his testimony that the police had no factual basis

to suspect Bolden of any criminal activity. Bolden says that,

notwithstanding "this total lack of suspicion of any illegal

conduct, the police engaged in a series of acts which would have

led a reasonable individual to believe that [he or she was] not

free to leave." Hence, Bolden concludes, he was unlawfully

7
seized prior to the time he consented to the search of his

suitcase and, therefore, his consent was not voluntary.

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." McCain v.

Commonwealth, 261 Va. 483, 489, 545 S.E.2d 541, 545 (2001); see

also Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d

25, 27 (2000). In considering a claim of seizure, "the

appellate court is required to give deference to the factual

findings of the trial court and to determine independently

whether, under the law, the manner in which the evidence was

obtained satisfies constitutional requirements." McCain, 261

Va. at 490, 545 S.E.2d at 545. And "[t]he burden is on the

defendant to show that the denial of his suppression motion,

when the evidence is considered in the light most favorable to

the Commonwealth, was reversible error." Id.

"[A] person is 'seized' only when, by means of physical

force or a show of authority, his freedom of movement is

restrained. Only when such restraint is imposed is there any

foundation whatever for invoking constitutional safeguards."

United States v. Mendenhall, 446 U.S. 544, 553 (1980). Hence,

"a person has been 'seized' within the meaning of the Fourth

Amendment only if, in view of all of the circumstances

8
surrounding the incident, a reasonable person would have

believed that he was not free to leave." Id. at 554.

The Supreme Court has provided examples of circumstances

indicating the occurrence of a seizure. These examples include

"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.

The Commonwealth argues that the encounter between the

police officers and Bolden was entirely consensual. "The police

simply did not engage in a show of authority which would have

caused a reasonable person to believe that he was not free to

leave, refuse to answer questions, or refuse the officer's

request to search the suitcase in the trunk." The officers

spoke to Bolden in a normal tone of voice throughout the

encounter in an effort to secure his cooperation. The officers'

weapons remained holstered at all times. Bolden readily acceded

to Matthews' request for identification, and, furthermore,

merely requesting identification does not constitute a seizure,

McCain, 261 Va. at 491, 545 S.E.2d at 546. Bolden also readily

agreed to a search of his person. The officers did not

interfere with Bolden's purpose to remain in the lobby awaiting

the arrival of his cousin, impede Bolden's ability to move about

9
the lobby during questioning, or block the lobby doors to the

outside.

Continuing, the Commonwealth argues that when the parties

went outside, the encounter remained consensual. Bolden freely

answered the officers' questions about the whereabouts of his

car and his luggage and readily admitted the green bag on the

rear seat was his. When Bolden did not consent for Matthews to

search the green bag, Matthews did not search it. When Matthews

asked whether there was anything else in the car, Bolden said

there was a suitcase in the trunk. When Matthews asked if he

could open the trunk, Bolden took the key out of his pocket and

opened the trunk, then voluntarily moved his car twice to

facilitate Matthews' search of the suitcase. Matthews gave

Bolden the opportunity to be honest and give up any contraband

that was in the suitcase in lieu of a search. Matthews searched

the suitcase only after Bolden had twice voiced his consent, and

Matthews respected Bolden's wishes by searching the suitcase

while it was inside the trunk rather than outside.

We find the Commonwealth's argument interesting, but it is

insufficient to overcome the effect of two incidents occurring

in the encounter between the police officers and Bolden. These

two incidents are the police interception of the second

telephone call for Bolden and the positioning of a police

10
cruiser in front of Bolden's car when he moved it to facilitate

Matthews' search of the suitcase.

With respect to the intercepted telephone call, the

Commonwealth argues that there is a reasonable inference the

call came while Matthews was interviewing Bolden and that it "is

entirely consistent with a consensual encounter for a second

officer present to intervene, attempt to determine the identity

of the caller in order to tell the citizen so he can judge

whether he wants to take the call, or take a message for the

citizen while he is engaged in a conversation with the police."

But this argument misses the point. The point is whether such

an interception would cause a reasonable person to believe he or

she is not free to leave the encounter.

With respect to the positioning of the police cruiser in

front of Bolden's car, the Commonwealth acknowledges on brief

that Bolden testified "his vehicle was blocked in by police." 3

"[B]ut," the Commonwealth continues, Bolden "admitted that no

weapons were drawn." Again, the Commonwealth misses the point.

3
While a trial judge is not bound to accept "unworthy,
albeit uncontradicted, testimony of an accused," Chesson v.
Commonwealth, 216 Va. 827, 832, 223 S.E.2d 923, 926-27 (1976),
"a trier of fact may not arbitrarily or without justification
discredit evidence which is uncontradicted and not inconsistent
with other evidence in the case," id. at 832, 223 S.E.2d at 926.
Here, Bolden's testimony concerning the blocking of his car was
completely uncontradicted; he was not cross-examined on the
point and not one of the three police officers involved denied

11
Whether weapons were drawn or not is irrelevant to the question

whether such blocking would cause a reasonable person to believe

he or she is not free to leave the encounter.

We need not decide in this case whether either the

intercepted telephone call or the blocking of Bolden's car is

sufficient alone to constitute a seizure within the meaning of

the Fourth Amendment. Clearly, when these two incidents are

combined, there is present such a "show of authority,"

Mendenhall, 544 U.S. at 553, as to make a reasonable person

believe he or she is not free to leave the encounter, and an

illegal seizure has occurred.

Because Bolden suffered an illegal seizure, his consent to

the search of his suitcase was tainted and ineffective to

justify the search. Florida v. Royer, 460 U.S. 491, 507-08

(1983). Hence, the evidence obtained from the suitcase should

have been suppressed. Accordingly, we will reverse the judgment

of the Court of Appeals, vacate Bolden's conviction for

possession of more than five pounds of marijuana, and remand the

case to the Court of Appeals with direction to remand the matter

to the trial court for further proceedings, if the Commonwealth

be so advised.

Reversed and remanded.

the blocking. Furthermore, Bolden's testimony was not
inconsistent with other evidence in the case.

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