COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia
ERIE LAWRENCE
OPINION BY
v. Record No. 0625-02-2 JUDGE JAMES W. BENTON, JR.
MARCH 18, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Buford M. Parsons, Jr., Judge Designate
Joseph W. Kaestner (Kaestner & Associates,
P.C., on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial judge denied Erie Lawrence's motion to suppress
heroin seized from his pocket and convicted him of possession of
heroin. Lawrence contends the warrantless search was unlawful.
We agree and reverse the conviction.
I.
The evidence proved Officer Christopher Jernigan went to a
residence to investigate "a trouble unknown" report, which vaguely
suggested someone was inside the residence. While walking to the
residence, the officer saw a woman sleeping in an automobile with
the engine running. After learning that the homeowner, who only
spoke Spanish, was attempting to report cars racing along the
street, the officer left the residence. Believing "something
[was] not right" with the woman who was sleeping in the
automobile, the officer initiated a conversation with her. She
told the officer she was waiting for the driver to return.
The officer "ran the tags" on the automobile and learned they
were registered to a pickup truck. After he obtained that
information, the woman exited the automobile and asked if she was
free to leave. The officer testified that he "said certainly, I
have nothing. Go ahead." Shortly after she walked away, Lawrence
approached the automobile. When the officer asked "is that your
car?," Lawrence said it was. The officer then directed Lawrence
to step toward him, told Lawrence he was "not free to leave," and
"put him in handcuffs." The officer testified that he uses "the
same" procedure when detaining persons and that he had no reason
to believe Lawrence posed a threat to him.
The officer described the events that followed:
I believe he asked if he was under arrest
at that time. I said no, you're under
investigative detention. I said do you have
a driver's license? He said it's in my
pocket. . . .
I said where was his license located. He
told me that it was in his inner jacket
pocket. When I went into the pocket to
retrieve it, pulled out his license and also
unknown to me, a cellophane bag, in which it
contained a brownish substance that I
believed at that point in time to be heroin.
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At that point in time, I placed him under
arrest, and he was transported to lockup,
charged with felony possession with intent
to distribute.
The trial judge denied Lawrence's motion to suppress the
heroin. At the conclusion of further evidence, which consisted
of the officer's testimony concerning the heroin, the trial
judge convicted Lawrence of possession of heroin.
II.
Lawrence contends that the officer lacked authority to
handcuff and to search him. The Commonwealth replies that all
aspects of the detention were lawful and that the search was
based upon Lawrence's consent or, in the alternative, upon
probable cause to believe "Lawrence's driver's license was in
his pocket and . . . would be 'useful as evidence.'"
We apply the following standards on our review:
In reviewing a trial court's denial of a
motion to suppress, "[t]he burden is upon
[the appellant] to show that th[e] ruling,
when the evidence is considered most
favorably to the Commonwealth, constituted
reversible error." "Ultimate questions of
reasonable suspicion and probable cause to
make a warrantless search" involve questions
of both law and fact and are reviewed de
novo on appeal. In performing such
analysis, we are bound by the trial court's
findings of historical fact unless "plainly
wrong" or without evidence to support them
. . . . We analyze a trial judge's
determination whether the Fourth Amendment
was implicated by applying de novo our own
legal analysis of whether based on those
facts a seizure occurred.
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McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (footnote and citations omitted).
The essential facts are not disputed. The officer first
noticed the automobile because its engine was running and it was
occupied by a woman who was asleep. When he spoke to the woman,
she said she had come to that location with the driver but did
not know his name, or the house he entered, or when he was
expected to return. The officer "ran the tags on the
[automobile]" and learned that they belonged to a truck.
Various statutes, including Code § 46.2-715, require that
license plates assigned to a motor vehicle be displayed on that
motor vehicle. Under certain conditions, however, the
Commissioner of the Department of Motor Vehicles may permit "the
use of license plates on a vehicle other than the vehicle for
which the license plates were issued." Code § 46.2-719. See
also Code § 46.2-720. Nonetheless, the officer had a sufficient
basis to reasonably suspect a violation of Code § 46.2-715 and
to detain Lawrence for an investigation when Lawrence identified
himself as the operator of the automobile. Unless otherwise
stated, however, violations of the motor vehicles statutes are
"traffic infractions," Code § 46.2-113, and ordinarily subject
the violator to the issuance of a summons. See Code § 46.2-936.
The Commonwealth argues that the officer could have
"reasonably . . . suspect[ed] that the car was stolen." We
disagree. The evidence in the record did not prove
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circumstances that raised a reasonable suspicion the automobile
had been stolen. After the officer "ran the tags," he received
no report either that the automobile in his presence had been
stolen or that the truck whose license plates were on the
automobile had been stolen. The officer did not testify that he
observed any damage suggesting a forced entry or rigging of the
ignition. The automobile's keys were in the ignition, and a
person was in the automobile. Significantly, when the woman in
the automobile asked if she could leave, the officer "said
certainly, I have nothing. Go ahead." At that time, the
officer knew that the license plates belonged to another
vehicle. The totality of the circumstances negates any
suggestion of a reasonable belief the automobile was stolen.
In light of the circumstances, it was unreasonable for the
officer to put handcuffs on Lawrence while investigating a
traffic violation that would warrant only the issuance of a
summons for the violation.
[T]he investigative methods employed [during
an investigative detention] should be the
least intrusive means reasonably available
to verify or dispel the officer's suspicion
in a short period of time. It is the
State's burden to demonstrate that the
seizure it seeks to justify on the basis of
a reasonable suspicion was sufficiently
limited in scope and duration to satisfy the
conditions of an investigative seizure.
Florida v. Royer, 460 U.S. 491, 500 (1983).
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The Commonwealth attempts to justify the officer's use of
the handcuffs by noting that another man was with Lawrence and
that "'several' other individuals were on the scene interfering
with the encounter." The record, however, refutes the
Commonwealth's contentions.
Q. When you put him in handcuffs, did you
conduct a pat down of the outside of his
clothing?
A. No, I hadn't gotten that far yet, sir.
I put him in handcuffs, and I said where's
your license? My next thing is going
directly to the Social Security number to
find out if this guy has got any warrants,
okay?
At that point in time, he's in handcuffs.
At that point in time, I run the license to
do my pat down. The same thing every time.
The officer merely testified that he used the handcuffs
because Lawrence was "under investigative detention." Beyond
this generalized statement of the officer's usual procedure,
nothing in the record supports the officer's decision to use
handcuffs while investigating a traffic infraction that was
subject to a summons for the violation. The officer never
testified that the presence of Lawrence's companion or any other
person compelled him to place Lawrence in handcuffs. In
addition, the officer did not testify that he believed Lawrence
was armed and dangerous. Indeed, he testified that the
circumstances did not indicate Lawrence did anything to threaten
his continued investigation. Finally, the officer's own
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testimony undermines the Commonwealth's claim that the officer
used the handcuffs because the circumstances so required. It is
clear from the officer's testimony that he always places
suspects in handcuffs while conducting investigative detentions.
He testified he does "[t]he same thing every time." We hold
that the officer's decision to handcuff Lawrence was a more
serious intrusion on personal liberty than is allowable under
these circumstances and, thus, constituted unreasonable
restraint. Cf. Sattler v. Commonwealth, 20 Va. App. 366, 369,
457 S.E.2d 398, 400 (1995) (holding that an officer's
"generalized policy of frisking all [detained] persons" is
unreasonable).
The Commonwealth contends Lawrence consented to the
officer's actions in retrieving his license. We disagree.
Recently, we addressed the issue of the determinations to
be made when consent to search is raised.
"'Consent to a search . . . must be
unequivocal, specific and intelligently
given . . . and it is not lightly to be
inferred.'" Although the consent need not
be oral, mere acquiescence is not enough.
Additionally, the Commonwealth bears the
burden of proving that consent was in fact
given, and "that burden is heavier where the
alleged consent is based on an implication."
Jean-Laurent v. Commonwealth, 34 Va. App. 74, 78-79, 538 S.E.2d
316, 318 (2000). In addition, and pertinent to this case, we
held that "conduct which evidences nothing more than an
acquiescence, particularly when no request to search has been
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made, has been held insufficient to constitute consent." Id. at
79, 538 S.E.2d at 318.
The evidence proved that the officer did not ask for
consent to obtain Lawrence's license or to reach into his
pocket. The officer testified that after he put the handcuffs
on Lawrence he asked Lawrence "where was his license located."
When Lawrence said the license "was in his inner jacket pocket,"
the officer "went into the pocket to retrieve it." On
cross-examination, the officer very clearly confirmed that he
did not seek Lawrence's consent to a search.
Q. Now, it was when Mr. Lawrence was in
handcuffs that you asked him for his
license; is that correct?
A. I didn't ask him for his license. I
asked him where his license was.
Q. And he told you while he was in
handcuffs; is that right?
A. That is right.
Q. And then you reached inside his jacket
pocket?
A. He wasn't able to do so, sir.
No evidence in the record proves consent was either requested or
obtained. "The burden was upon the officer to obtain consent,
not on [Lawrence] to affirmatively deny consent." Id. at 80,
538 S.E.2d at 319.
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Accordingly, we hold that the trial judge erred in denying
the motion to suppress, and we reverse the conviction and
dismiss the indictment.
Reversed and dismissed.
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