Parker v. Commonwealth

Present: All the Justices

LEON PARKER
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 971010 January 9, 1998

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

I.

The primary issues in this appeal are whether an encounter

between a police officer and a pedestrian constituted a seizure

within the meaning of the Fourth Amendment of the Constitution of

the United States and, if so, whether the seizure was

constitutionally permissible.
II.

Leon Darnell Parker was indicted in the Circuit Court of the

City of Richmond for possession of cocaine with intent to

distribute in violation of Code § 18.2-248. The defendant filed

a pretrial motion to suppress evidence of crack cocaine that had

been seized from his person on the basis that this evidence was

obtained in violation of the Fourth Amendment. The trial court

denied the motion and, at a bench trial, convicted the defendant

of the charged offense. The Court of Appeals affirmed the

judgment of the circuit court in an unpublished opinion, and we

awarded the defendant an appeal.

We will summarize the facts adduced at the suppression

hearing and, under familiar principles, we will consider the

testimony in the light most favorable to the Commonwealth, the

prevailing party below. On July 13, 1995, City of Richmond

police officer Michael J. Kurisky, who was wearing a police
uniform and displaying a badge of authority, drove a white police

cruiser to a public housing development known as Creighton Court.

Officers John O'Connor and Wes Moore were passengers in Officer

Kurisky's police cruiser. The police officers were "checking

various areas . . . for drug activity."

As Officer Kurisky drove his police cruiser onto Creighton

Road, a street in the housing development, the officers observed

a group of men "standing around a white Cadillac which had its

trunk open." Officer Kurisky had made numerous prior drug

arrests in the area, and he had recovered drugs and weapons in

the immediate area where the men were located. Officer Kurisky

"personally consider[ed] that area to be an open-air drug

market."
When Officer Kurisky drove his police cruiser near the

Cadillac, the men looked toward him, immediately shut the car's

trunk, and began to disperse. Officers O'Connor and Moore got

out of the police cruiser, and Officer Kurisky remained in the

vehicle.

As Officer Kurisky watched the men disperse, he saw the

defendant "turn and place an item with his right hand in the

waistband of his shorts." The defendant proceeded to walk on

Creighton Road, away from the Cadillac. While the two other

officers remained at the scene, Officer Kurisky "backed the

police vehicle up" and drove down Creighton Road following the

defendant. Officer Kurisky drove the police cruiser "parallel"

to the defendant who was about 20 feet away from him. Officer

Kurisky was looking at the defendant, who then "looked at the
direction of the police vehicle, turned around and started

walking back on the sidewalk the other way." Officer Kurisky,

still in his police cruiser, continued to follow the defendant,

who began to walk on "posted" property owned by the Richmond

Redevelopment and Housing Authority. Officer Kurisky, continuing

to follow the defendant, drove the police cruiser 40 feet off the

street onto the Richmond Redevelopment and Housing Authority's

property and stopped the car at the location where the defendant

was standing.
Officer Kurisky, who possessed clearly visible weapons,

approached the defendant and inquired whether he lived in the

public housing development. In response to the officer's

inquiry, the defendant stopped and responded that he did not live

there. Officer Kurisky asked the defendant if he had any guns or

drugs in his possession, and the defendant replied, "no."

Officer Kurisky then asked the defendant if the officer could

"pat him down," and the defendant put his hands up in the air.

Officer Kurisky "went around behind [the defendant] and just

patted him down for any weapons or drugs" and found none.

After Officer Kurisky conducted this search, another

Richmond police officer, Mark Ambrozy, approached the defendant

who was wearing a white basketball jersey, white "mesh"

basketball shorts, and a pair of thin white or peach boxer

underwear. Officer Ambrozy asked the defendant if he "had

anything in his crotch." The defendant replied that he did not,

and "he grabbed his basketball shorts and boxer shorts and

started, in very exaggerated motions, pulling them to the side,
up and down, shaking them in and out . . . ."

As the defendant made these exaggerated motions, Officer

Kurisky saw "a pink object through the boxer shorts material."

Officer Kurisky placed his hand on the object and realized that

the object was crack cocaine. When Officer Kurisky removed the

item from the defendant's waistband, he found a sandwich bag

containing 18 red ziploc baggies, and each baggie contained a

substance later identified as crack cocaine. Officer Kurisky did

not ask the defendant for permission to conduct this search.
III.

A.

The defendant argues that Officer Kurisky violated the

defendant's Fourth Amendment rights because he was seized when

the officer drove the police cruiser 40 feet away from the street

onto a common area at the housing development in order to

question the defendant. The Commonwealth responds that this

encounter did not constitute a seizure within the meaning of the

Fourth Amendment. We disagree with the Commonwealth.

The Fourth Amendment of the Constitution of the United

States provides in part that "[t]he right of the people to be

secure in their persons, houses, papers, and effects against

unreasonable searches and seizures shall not be violated . . . ."

This guarantee applies to seizures of the person as well as to

seizures of the houses, papers, and effects of an individual.
Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2d 645, 647

(1992). The United States Supreme Court stated the following test

which we must apply when determining whether a person has been
seized within the meaning of the Fourth Amendment:
"We adhere to the view that 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. The
purpose of the Fourth Amendment is not to eliminate all
contact between the police and the citizenry, but 'to
prevent arbitrary and oppressive interference by
enforcement officials with the privacy and personal
security of individuals.' United States v. Martinez-
Fuerte, 428 U.S. 543, 554 [(1976)]. As long as the
person to whom questions are put remains free to
disregard the questions and walk away, there has been
no intrusion upon that person's liberty or privacy as
would under the Constitution require some
particularized and objective justification.
Moreover, characterizing every street encounter
between a citizen and the police as a 'seizure,' while
not enhancing any interest secured by the Fourth
Amendment, would impose wholly unrealistic restrictions
upon a wide variety of legitimate law enforcement
practices. The Court has on other occasions referred
to the acknowledged need for police questioning as a
tool in the effective enforcement of the criminal laws.
'Without such investigation, those who were innocent
might be falsely accused, those who were guilty might
wholly escape prosecution, and many crimes would go
unsolved. In short, the security of all would be
diminished. Haynes v. Washington, 373 U.S. 503, 515
[(1963)].' Schneckloth v. Bustamonte, 412 U.S., at 225
[(1973)].
We conclude that a person has been 'seized' within
the meaning of the Fourth Amendment only if, in view of
all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not
free to leave. 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." United States v. Mendenhall, 446
U.S. 544, 553-54 (1980) (opinion of Stewart, J.)
(footnote omitted).

The United States Supreme Court applied the Mendenhall test

in Michigan v. Chesternut, 486 U.S. 567, 573 (1988), and made the

following observation which is equally pertinent here:
 "The test provides that the police can be said to have
seized an individual 'only if, in view of all of the
circumstances surrounding the incident, a reasonable
person would have believed that he was not free to
leave.'
. . . .
The test is necessarily imprecise, because it is
designed to assess the coercive effect of police
conduct, taken as a whole, rather than to focus on
particular details of that conduct in isolation.
Moreover, what constitutes a restraint on liberty
prompting a person to conclude that he is not free to
'leave' will vary, not only with the particular police
conduct at issue, but also with the setting in which
the conduct occurs."

Accord California v. Hodari D., 499 U.S. 621, 627-28 (1991); INS

v. Delgado, 466 U.S. 210, 215 (1984).

Applying these principles, we hold that Officer Kurisky's

encounter with the defendant constituted a seizure within the

meaning of the Fourth Amendment. As we have already stated,

Officer Kurisky was wearing a police uniform, displaying his

badge of authority, and possessed clearly visible weapons on his

utility belt. The officer, driving his police cruiser, followed

the defendant, who sought to avoid the officer by walking in

different directions. The officer followed the defendant from

the moment he left the Cadillac until he walked on the property

owned by the Richmond Redevelopment and Housing Authority. Then,

the police officer drove the police cruiser from the street onto

the Richmond Redevelopment and Housing Authority's property for a

distance of about 40 feet and stopped the cruiser at a location

where the defendant was standing. Certainly, under these

circumstances, "a reasonable person would have believed that he

was not free to leave." Mendenhall, 446 U.S. at 554.

The Commonwealth, however, relying upon Baldwin v.
Commonwealth, supra, argues that the defendant was not seized

within the meaning of the Fourth Amendment. The Commonwealth's

reliance upon Baldwin is misplaced. As we have already stated,

any assessment whether police conduct constitutes a seizure

implicating the Fourth Amendment must be determined by examining

the evidence of record in each individual case, accord

Chesternut, 486 U.S. at 573; INS v. Delgado, 466 U.S. at 215.

Baldwin is readily distinguishable and is limited to its

unique facts. There, a police officer drove a police vehicle to

a parking lot and saw a man, later identified as Michael T.

Baldwin, and a woman companion standing near a dumpster at the

rear of the parking lot. The officer parked his car about 15

feet from the couple, got out of his car, and walked toward them.

The officer acknowledged that he may have "call[ed] for them" as

the couple walked away toward some apartments. When the couple

returned to the dumpster area, the officer noticed that Baldwin

was having trouble with his balance and could smell an odor of

alcohol "about his person." The officer asked Baldwin whether he

had been drinking, and Baldwin stated that "he'd had ten beers

which is too much." Baldwin was "staggering" and his face was

"flushed." The officer arrested him for being drunk in public

and subsequently discovered that Baldwin had in his possession

marijuana and psilocin (hallucinogenic mushrooms).
Baldwin and his companion gave a different explanation of

the events that occurred when the officer approached them. Among

other things, Baldwin and his companion testified that they had

been standing together near the trash dumpster, and when they
proceeded to walk toward an apartment, they heard a police car

enter the parking lot, and the officer "put a big floodlight on

[them] . . . and told [them] to come here, said you two, come

over here."

We held in Baldwin that the defendant was not seized because

our consideration of all the evidence, including the police

conduct at issue, indicated that a reasonable person would have

believed that he was free to leave. Here, however, unlike
Baldwin, Officer Kurisky drove his police cruiser forty feet off

of the street and onto private property and stopped his police

cruiser at the location where the defendant was standing.

Without question, Officer Kurisky's acts constituted a show of

authority which restrained the defendant's liberty. Thus, we

must next consider whether this seizure was a limited intrusion

permitted by the Fourth Amendment as recognized in Terry v. Ohio,

392 U.S. 1 (1968).

B.

The defendant argues that at the time of the seizure,

Officer Kurisky had no basis to suspect that the defendant had

committed a crime sufficient to give rise to a permissible

detention. The Commonwealth argues that the evidence of record

establishes that the officer had a reasonable suspicion to detain

the defendant for investigative purposes. We agree with the

Commonwealth.

The United States Supreme Court held in Terry v. Ohio, 392
U.S. at 22, that "a police officer may in appropriate

circumstances and in an appropriate manner approach a person for
purposes of investigating possibly criminal behavior even though

there is no probable cause to make an arrest." In order to

justify a Terry seizure, "the police officer must be able to

point to specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant

that intrusion." Id. at 21. The United States Supreme Court,

explaining the nature of a Terry stop, stated that
"[i]n addressing the reach of a Terry stop . . . we
observed that '[a] brief stop of a suspicious
individual, in order to determine his identity or to
maintain the status quo momentarily while obtaining
more information, may be most reasonable in light of
the facts known to the officer at the time.' . . . [I]f
there are articulable facts supporting a reasonable
suspicion that a person has committed a criminal
offense, that person may be stopped in order to
identify him, to question him briefly, or to detain him
briefly while attempting to obtain additional
information." Hayes v. Florida, 470 U.S. 811, 816
(1985); accord Brown v. Texas, 443 U.S. 47, 51 (1979);
Simmons v. Commonwealth, 217 Va. 552, 554-55, 231
S.E.2d 218, 220-21 (1977).

In determining whether a police officer had a particularized

and objective basis for suspecting that a person stopped may be

involved in criminal activity, a court must consider the totality

of circumstances. United States v. Cortez, 449 U.S. 411, 417-18

(1981); see Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d

721, 722-23 (1997); Zimmerman v. Commonwealth, 234 Va. 609, 612,

363 S.E.2d 708, 709 (1988); Leeth v. Commonwealth, 223 Va. 335,

340, 288 S.E.2d 475, 478 (1982). This test is less stringent

than probable cause. Id.
We hold that under the facts and circumstances of this case,

Officer Kurisky did have a reasonable suspicion, based on

objective facts, that the defendant was engaged in criminal
activity. As we have already observed, the defendant was with a

group of men in an area described as "an open-air drug market."

Officer Kurisky had made numerous drug arrests in the area and

had recovered drugs and weapons from that area. When Officer

Kurisky drove his police cruiser on Creighton Road, the men, who

were standing around the white Cadillac with the trunk open,

immediately closed the trunk and dispersed. Officer Kurisky saw

the defendant place an object in the waistband of his shorts.

Considering the totality of circumstances, and viewing the facts

in the light most favorable to the Commonwealth, we are of

opinion that Officer Kurisky had a particularized and objective

basis for suspecting that the defendant was involved in criminal

activity.
C.

The defendant argues that Officer Kurisky violated the

defendant's Fourth Amendment rights when the officer seized the

cocaine from the defendant's boxer underwear without a warrant.

The defendant says he did not give the officer consent to search

his person, and the officer lacked probable cause to seize the

objects from the defendant's undergarments.

We agree with the defendant that the record establishes that

he did not give the officer consent to remove the crack cocaine

from the defendant's undergarments. Officer Kurisky testified

that he did not request the defendant's consent before he removed

the drugs from the defendant's undergarments. Contrary to the

Commonwealth's assertions, the record is simply devoid of any

evidence from which an inference can be drawn that the defendant
gave the officer consent to conduct the second search of the

defendant's undergarments.

The Commonwealth, however, contends that even if the

defendant did not give consent to search his person, Officer

Kurisky, nevertheless, was entitled to search the defendant

because the officer had probable cause to believe that the

defendant possessed illegal drugs. Responding, the defendant

argues that the police officer lacked probable cause to believe

that the defendant had either committed a criminal offense or was

in the process of committing a criminal offense. We disagree

with the defendant.
The United States Supreme Court has stated that "[w]here the

formal arrest followed quickly on the heels of the challenged

search of petitioner's person, we do not believe it particularly

important that the search preceded the arrest rather than vice

versa." Rawlings v. Kentucky, 448 U.S. 98, 111 (1980). However,

the police must have probable cause to believe that the suspect

has either committed a criminal offense or was in the process of

committing a criminal offense before searching the suspect. See

United States v. Banshee, 91 F.3d 99, 102 (11th Cir. 1996), cert.

denied, ___ U.S. ___, 117 S.Ct. 752 (1997); United States v.

Bizier, 111 F.3d 214, 217 (1st Cir. 1997); United States v.

Armstrong, 16 F.3d 289, 294 (8th Cir. 1994); United States v.

Miller, 925 F.2d 695, 698 (4th Cir.), cert. denied, 502 U.S. 833

(1991); United States v. Potter, 895 F.2d 1231, 1234 (9th Cir.),
cert. denied, 497 U.S. 1008 (1990); United States v. Tavolacci,

895 F.2d 1423, 1428 (D.C. Cir. 1990); United States v. Hernandez,
825 F.2d 846, 852 (5th Cir. 1987), cert. denied, 484 U.S. 1068

(1988); United States v. Donaldson, 793 F.2d 498, 502-03 (2nd

Cir. 1986), cert. denied, 479 U.S. 1056 (1987); United States v.

Gay, 774 F.2d 368, 378 (10th Cir. 1985).

We discussed the concept of probable cause in Taylor v.

Commonwealth, 222 Va. 816, 820-21, 284 S.E.2d 833, 836 (1981):
"The legal standard of probable cause, as the term
suggests, relates to probabilities that are based upon
the factual and practical considerations in everyday
life as perceived by reasonable and prudent persons.
The presence or absence of probable cause is not to be
examined from the perspective of a legal technician.
Rather, probable cause exists when the facts and
circumstances within the officer's knowledge, and of
which he has reasonably trustworthy information, alone
are sufficient to warrant a person of reasonable
caution to believe that an offense has been or is being
committed. Draper v. United States, 358 U.S. 307, 313
(1959); Schaum v. Commonwealth, 215 Va. 498, 500, 211
S.E.2d 73, 75 (1975). In order to ascertain whether
probable cause exists, courts will focus upon 'what the
totality of the circumstances meant to police officers
trained in analyzing the observed conduct for purposes
of crime control.' Hollis v. Commonwealth, 216 Va.
874, 877, 223 S.E.2d 887, 889 (1976)."

We hold that the totality of circumstances shown in this

record supports the conclusion that Officer Kurisky did indeed

have probable cause to believe that the defendant had committed a

crime and, therefore, the challenged search was permissible.

Officer Kurisky observed the defendant with a group of men in an

area described as an "open-air drug market." The officer saw the

defendant place something in his basketball shorts. The

defendant's shorts were made of a "mesh," "thin" material, and

the officer was able to see a pink object between the defendant's

undergarments and the defendant's skin.

In addition, Officer Kurisky knew, from personal experience,
that "people often try to hide contraband in their shorts, in

their crotch area or in their buttocks area." Officer Kurisky

also knew, before he retrieved the items from the defendant's

undergarments, that "[p]ink baggies are often one of the colors

of baggies used to package . . . crack cocaine." When Officer

Ambrozy asked the defendant if he had anything in his crotch, the

defendant grabbed the waistbands of both his basketball shorts

and his boxer shorts, and pulled "them to the side, up and down"

in an apparent effort to prevent the crack cocaine from falling

to the ground.
IV.

For the foregoing reasons, we will affirm the judgment of

the Court of Appeals.

Affirmed.
CHIEF JUSTICE CARRICO, JUSTICE COMPTON, JUSTICE LACY, and JUSTICE
KOONTZ concur in the result.