Barkley v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia

BOBBY RAY BARKLEY
OPINION BY
v. Record No. 2885-01-2 JUDGE D. ARTHUR KELSEY
FEBRUARY 11, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge

Matthew T. Paulk (Blackburn, Conte,
Schilling & Click, P.C., on brief), for
appellant.

Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

The trial court convicted the appellant, Bobby Ray Barkley,

of possession of marijuana with intent to distribute and of

maintaining a common nuisance. On appeal, Barkley claims that

the trial court erred by not suppressing evidence found during a

search of his premises. The search, Barkley argues, followed an

unlawful seizure of him by the police. In particular, Barkley

contends that the officers performed a coercive investigatory

stop at his premises without first obtaining a reasonable,

articulable suspicion that he may be engaged in criminal

activity. Finding no merit in either argument, we affirm the

trial court's denial of the suppression motion.
 I.

On appeal from a denial of a suppression motion, we examine

the evidence in the light most favorable to the Commonwealth,

giving it the benefit of any reasonable inferences. Bass v.

Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000); Sabo

v. Commonwealth, 38 Va. App. 63, 69, 561 S.E.2d 761, 764 (2002).

On March 9, 2001, Officers Wendell Miracle and Steve Drew

of the Richmond Police Department visited 3214 West Franklin

Street, Apartment B, to investigate a Crime Stoppers' tip. The

tip alleged that male and female juveniles at that location were

using and selling marijuana and cocaine. Sergeant Drew, dressed

in plain clothes and wearing a chain displaying his badge, and

Sergeant Miracle, wearing his police uniform, parked in front of

Apartment B in their marked police car. The officers then

approached the front door of the apartment and knocked.

Bobby Ray Barkley answered the door, came out to the front

porch with the officers, and asked the officers how he could

help them. Sergeant Drew informed Barkley that they were there

to "investigate a complaint on the residence . . . the building

itself or the home itself." After informing Barkley that he was

not under arrest, Drew explained that the police had received a

tip that "possible illegal activity was going on there at the

residence," particularly the sale and use of illegal drugs. To

put Barkley "at ease" and to ensure that he was aware of his

- 2 -
rights, Drew then informed him of his Miranda rights. Barkley,

in response, acknowledged that he understood his rights. He

then admitted to the officers that he occasionally smoked

marijuana, but claimed that no one sold drugs from the

apartment.

While the three men talked on Barkley's front porch,

several people walked back and forth in front of the apartment,

glancing at the officers and Barkley as they did so. Barkley

commented that his neighbors were "nosey," so Drew asked if the

conversation could continue inside the apartment. Without

hesitation, Barkley allowed the officers in the apartment.

Once inside, Barkley led the officers directly to his

bedroom, which also served as a den. Drew continued to explain

the purpose of their visit and again asked Barkley whether he

was aware of any illegal activity at the residence. During this

discussion, both officers noticed a marijuana "stem" plainly

appearing in an ashtray. The officers brought the stem to

Barkley's attention and again informed him of his Miranda

rights. Barkley reiterated that he occasionally used marijuana.

He then removed a bag containing marijuana from his dresser.

Drew, believing that additional contraband was located

within the apartment, asked Barkley if he could search the rest

of the residence. Barkley asked the officers if he had to allow

the search. Drew acknowledged that Barkley did not have to, but

stated that the officers' observations gave them probable cause
- 3 -
to obtain a search warrant for the premises. Barkley gave

permission, claiming that the officers would probably "go ahead

and search" regardless of his answer. Sensing that Barkley was

apprehensive, Drew explained that a search would not occur

without his consent or a warrant. Further, Drew told Barkley

that he remained free to withhold his consent. Barkley then

told the officers to "go ahead and search." The officers asked

Barkley "a couple more times" whether he consented. After

determining that Barkley's consent was voluntary, the officers

performed the search and recovered a total of one and one-half

pounds of marijuana.

Before trial, Barkley filed a motion to suppress the

evidence gathered during the search of his apartment. The

officers' initial encounter at Barkley's apartment was a Terry

stop, Barkley argued, and the officers' absence of a reasonable

suspicion invalidated the subsequent search. Barkley

specifically claimed that the officers' conduct amounted to a

show of force, which would have led any reasonable person in his

position to believe that he was being detained. Finding the

officers' conduct reasonable, the trial court disagreed and

denied the motion to suppress.

The trial court convicted Barkley of possession of

marijuana with the intent to distribute in violation of Code

§ 18.2-248.1 and of maintaining a common nuisance in violation

of Code § 18.2-258. Barkley was sentenced to ten years for the
- 4 -
marijuana charge and twelve months for the nuisance charge. The

trial court suspended six years of the possession charge and six

months of the nuisance charge. Barkley now appeals, claiming

that the trial court erred by denying his motion to suppress.

II.

Though the ultimate question whether the officers' conduct

violated the Fourth Amendment triggers de novo scrutiny on

appeal, we defer to the trial court's findings of "historical

fact" and give "due weight to the inferences drawn from those

facts by resident judges and local law enforcement officers."

Davis v. Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378

(2002) (citing Neal v. Commonwealth, 27 Va. App. 233, 237, 498

S.E.2d 422, 424 (1998)). We examine the trial court's factual

findings only to determine if they are plainly wrong or devoid

of supporting evidence. See Mier v. Commonwealth, 12 Va. App.

827, 828, 407 S.E.2d 342, 343 (1991).

In addition, the appellant must show that the trial court's

decision "constituted reversible error." McGee v. Commonwealth,

25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc)

(citations omitted); see also Davis, 37 Va. App. at 429-30, 559

S.E.2d at 378. "Absent clear evidence to the contrary in the

record, the judgment of a trial court comes to us on appeal with

a presumption that the law was correctly applied to the facts."

Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286,

- 5 -
291 (1977); Oliver v. Commonwealth, 35 Va. App. 286, 297, 544

S.E.2d 870, 875 (2001) ("The trial court's judgment is presumed

to be correct."); Dunn v. Commonwealth, 20 Va. App. 217, 219,

456 S.E.2d 135, 136 (1995).

III.

A.

Barkley admits that the police officers had the right to

visit his property, but he contends that three separate aspects

of the visit transformed the encounter into an unconstitutional

seizure. First, Barkley claims that the officers seized him by

implying that he was participating in drug activity. This

veiled accusation, Barkley argues, would compel any reasonable

person to submit to the officers' questioning. Second, Barkley

argues that the officers' appearance and conduct amounted to a

show of force that negated his ability to walk away. Finally,

Barkley contends that the officer's reading of his Miranda

rights indicates that he had been seized. This stop was

unlawful, Barkley then concludes, because the officers did not

reasonably suspect his involvement in criminal activity.

Finding that the officers' conduct did not convert the

consensual encounter into a seizure, we disagree.

The Fourth Amendment "does not proscribe all seizures, only

those that are 'unreasonable.'" Hodnett v. Commonwealth, 32

Va. App. 684, 690, 530 S.E.2d 433, 436 (2000) (quoting Welshman

- 6 -
v. Commonwealth, 28 Va. App. 20, 30, 502 S.E.2d 122, 126-27

(1998) (en banc)); see also Hamlin v. Commonwealth, 33 Va. App.

494, 499, 534 S.E.2d 363, 365 (2000). The Constitution simply

"does not proscribe reasonable searches and seizures." Murphy

v. Commonwealth, 37 Va. App. 556, 564, 559 S.E.2d 890, 893

(2002).

With regard to seizures, reasonableness depends largely on

the extent of the individual's loss of freedom compared to the

officer's level of suspicion of criminality against the

individual. Officers performing a full custodial arrest, for

instance, must have probable cause. See Ross v. Commonwealth,

35 Va. App. 103, 105, 542 S.E.2d 819, 820 (2001). For an

investigatory stop, officers need only articulate a reasonable

suspicion that criminal activity "may be afoot." United States

v. Arvizu, 534 U.S. 266, 273 (2002). These requirements ensure

that an individual's liberty is compromised only for a

legitimate reason. Id.; Terry v. Ohio, 392 U.S. 1, 30 (1968).

Not all interactions between law enforcement and citizens

require the police to suspect the individual's participation in

a criminal activity. Officers need not have any particularized

suspicion, for example, to approach "individuals on the street

or in other public places" and then put "questions to them if

they are willing to listen." United States v. Drayton, 536 U.S.

194, 122 S. Ct. 2105, 2110 (2002). Provided the officer

refrains from inducing "cooperation by coercive means," he needs
- 7 -
no suspicion of criminality to "pose questions, ask for

identification, and request consent to search luggage." Id.

(citing Florida v. Bostick, 501 U.S. 429, 434-35 (1991))

(citations omitted); see also McClellan v. Commonwealth, 37

Va. App. 144, 151, 554 S.E.2d 669, 702 (2001); Commonwealth v.

Satchell, 15 Va. App. 127, 131, 422 S.E.2d 412, 415 (1992)

(quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).

An officer questioning a citizen exceeds the scope of his

authority and effects a seizure only when, "in view of all the

circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave." California

v. Hodari D., 499 U.S. 621, 628 (1991) (quoting United States v.

Mendenhall, 446 U.S. 544, 554 (1980)). This "reasonable person

test," the United States Supreme Court has explained,

"presupposes an innocent person." Bostick, 501 U.S. at 437-38

(emphasis in original). Framed in such a way, this test

guarantees that Fourth Amendment protections do not "vary with

the state of mind of the particular individual being

approached." Wechsler v. Commonwealth, 20 Va. App. 162, 170,

455 S.E.2d 744, 747 (1995) (citations omitted).

Several factors determine whether an officer "by means of

physical force or show of authority" would cause a reasonable

person to feel seized. Mendenhall, 446 U.S. at 554-55; see also

Sykes v. Commonwealth, 37 Va. App. 262, 268, 556 S.E.2d 794, 797

(2001). "The threatening presence of several officers, the
- 8 -
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" all shed light on whether a seizure has occurred.

Andrews v. Commonwealth, 37 Va. App. 479, 490, 559 S.E.2d 401,

407 (2002) (citations omitted).

We also examine what, if anything, the officer stated to

the individual during the encounter. Identifying an individual

as a suspect may create a seizure; merely informing an

individual that the officers are "conducting a general

investigation in response to a report of drug dealing" does not.

McGee, 25 Va. App. at 200-01, 487 S.E.2d at 262-63; see also

Davis, 37 Va. App. at 431-32, 559 S.E.2d at 379 (a "specific

allegation of criminal wrongdoing to the suspect . . . is highly

significant among the totality of factors," but it does not

"automatically negate a finding of a consensual encounter").

Based on these principles, we reject Barkley's argument

that the "implication of the officers' words and conduct"

fingered Barkley as a suspect and would have made any reasonable

person in his position feel not free to leave. 1 Barkley

1
Barkley does not contend that the officers' entry to his
front porch offended his Fourth Amendment rights. See Shaver v.
Commonwealth, 30 Va. App. 789, 796-97, 520 S.E.2d 393, 396-97
(1999) (concluding that individuals do not have a reasonable
expectation of privacy "in areas that the passing public can
observe"). Because Officers Drew and Miracle entered Barkley's
front porch, an area accessible by any member of the public,
- 9 -
correctly notes that a reasonable person may feel seized "when a

police officer confronts a person and informs the individual

that he or she has been specifically identified as a suspect in

a particular crime." McGee, 25 Va. App. at 200, 487 S.E.2d at

262. This rule, however, applies only when officers expressly

inform an individual that they specifically suspect his

participation in a crime. It does not apply where, as here, the

officers did not identify Barkley as the target of their search.

To the contrary, they informed Barkley that the purpose of their

visit was to "investigate a complaint on the residence . . . the

building itself or the home itself." When combined with the

fact that the officers expressly informed Barkley that he was

not under arrest, this general explanation would not make a

reasonable, innocent person feel detained.

Nor did the officers' conduct, when viewed in the totality

of the circumstances, create a "threatening presence" sufficient

to convert the encounter into a seizure. Andrews, 37 Va. App.

at 490, 559 S.E.2d at 407. After parking their squad car

directly in front of Barkley's apartment, the officers knocked

on Barkley's door, informed him of the purpose of their visit,

and told him he was not under arrest. While talking, neither

their initial approach was reasonable. See id. at 796, 520
S.E.2d at 397 ("If one has a reasonable expectation that various
members of society may enter the property in their personal or
business pursuits, he should find it equally likely that the
police will do so." (citations omitted)).
- 10 -
officer blocked access to the house or to the street. Although

both officers carried guns, neither displayed their weapons in a

threatening manner. "That most law enforcement officers are

armed is a fact well known to the public. The presence of a

holstered firearm thus is unlikely to contribute to the

coerciveness of the encounter absent active brandishing of the

weapon." Drayton, 122 S. Ct. at 2112. The officers' mere

presence at Barkley's apartment, without more, failed to

heighten a reasonable, innocent person's anxiety to the point of

feeling seized by the police. See id. (Police officers "are

often required to wear uniforms" and display badges, which "is

cause for assurance, not discomfort.").

Officer Drew's reading to Barkley his Miranda rights does

not compel a different result. While Miranda warnings are

required "only when an individual is in custody and subjected to

interrogation," Garrison v. Commonwealth, 36 Va. App. 298, 309

n.1, 549 S.E.2d 634, 640 n.1 (2001) (citations omitted), giving

these warnings does not necessarily place the individual "in

custody" at the level of restraint associated with a formal

arrest. Davis v. Allsbrooks, 778 F.2d 168, 172 (4th Cir. 1985).

As the United States Court of Appeals for the Fourth Circuit

explained:

To hold that the giving of Miranda warnings
automatically disables police from further
questioning upon a suspect's slightest
indication to discontinue a dialogue would
operate as a substantial disincentive to
- 11 -
 police to inform suspects of their
constitutional protections. It would
convert admirable precautionary measures on
the part of officers into an investigatory
obstruction.

Id. For similar reasons, advising an individual of his Miranda

rights, by itself, does not transform an otherwise consensual

encounter into an investigatory seizure. See State v. Green,

575 A.2d 1308, 1314 (N.H. 1990) (giving Miranda warnings is

merely one factor to consider). Depending on the circumstances,

advising a citizen of his legal rights may have no coercive

impact. On the other hand, coupled with other indicia of

coercion, it might corroborate the objective reasonableness of

the individual's belief that he was not free to leave.

In this case, we agree with the trial court's conclusion

that the officers gave the Miranda warnings out of "an abundance

of caution." Informing Barkley of his Miranda rights did not

create a seizure where, as here, he "was not physically

restrained, and the tone of the interview was relaxed,

non-accusatory, and informal." Green, 575 A.2d at 1314. By

providing this information to Barkley, the officers did nothing

more than inform him of his legal rights in advance of the legal

necessity for doing so. Nothing in Miranda or its progeny

suggests that proactivity of this kind should be discouraged.

- 12 -
 B.

Satisfied that the encounter between the officers and

Barkley did not constitute a seizure, we now examine whether

Barkley consented to the search of his apartment. The officers

needed Barkley's consent at two separate stages of the

encounter: to enter the house and, once inside, to perform a

search of the entire apartment. We find that the Commonwealth

proved Barkley's consent at both stages.

"At the very core of the Fourth Amendment stands the right

of a man to retreat into his own home and there be free from

unreasonable governmental intrusion." Kyllo v. United States,

533 U.S. 27, 31 (2001) (internal quotations and citations

omitted). So sacred is the home that the Constitution will not

tolerate a physical invasion of it "by even a fraction of an

inch." Kyllo, 533 U.S. at 37 (citations omitted). Absent a

warrant, consent, or exigent circumstances, the Fourth Amendment

will invalidate any police entry into a suspect's home. See

Payton v. New York, 445 U.S. 573, 586 (1980); Robinson v.

Commonwealth, 31 Va. App. 479, 484, 524 S.E.2d 171, 173 (2000).

As the United States Supreme Court recently reiterated, an

individual's consent to a search must be voluntary and

uncoerced.

In a society based on law, the concept of
agreement and consent should be given a
weight and dignity of its own. Police
officers act in full accord with the law
- 13 -
 when they ask citizens for consent. It
reinforces the rule of law for the citizen
to advise the police of his or her wishes
and for the police to act in reliance on
that understanding. When this exchange
takes place, it dispels inferences of
coercion.

Drayton, 122 S. Ct. at 2114. The Commonwealth bears the burden

of demonstrating that an individual's consent was "freely

given." Lowe v. Commonwealth, 218 Va. 670, 678, 239 S.E.2d 112,

117 (1977) (citations omitted). Whether the consent was

"voluntary or was the product of duress or coercion, express or

implied" is a question of fact hinging on the totality of the

circumstances. Commonwealth v. Rice, 28 Va. App. 374, 378, 504

S.E.2d 877, 879 (1998) (citations omitted). That a citizen was

not warned of his right to refuse consent to a search does not,

standing alone, render the search nonconsensual. Rather, the

"totality of the circumstances must control, without giving

extra weight to the absence of this type of warning." Drayton,

122 S. Ct. at 2113.

Officers who have obtained an individual's consent to

search must not exceed the scope of their permission. The test

for the scope —— "whether it is objectively reasonable for the

police to believe that the consent permitted them to search

where they did" —— limits the scope to the "expressed object" of

the search. Lawrence v. Commonwealth, 17 Va. App. 140, 145, 435

S.E.2d 591, 594 (1993) (citing Florida v. Jimeno, 500 U.S. 248,

251 (1991)), aff'd, 247 Va. 339, 443 S.E.2d 160 (1994). While
- 14 -
performing a consensual search, however, officers need not

shield their eyes from unrelated contraband appearing in plain

view. They may "lawfully seize an item that they discover in

plain view if they have probable cause to believe that the item

in question is evidence of a crime or contraband." McNair v.

Commonwealth, 31 Va. App. 76, 82-83, 521 S.E.2d 303, 307 (1999)

(en banc) (citations and internal quotations omitted).

Here, Barkley freely allowed the officers inside his home

and then into his bedroom. Although he did not give them

permission to search for contraband, the marijuana stem was in

plain view. The officers immediately noticed the "very

distinctive look" of the stem and recognized the stem's

incriminating character. This plain-view observation was

permissible. See Armstrong v. Commonwealth, 29 Va. App. 102,

110-11, 510 S.E.2d 247, 251-52 (1999) (recognizing that the

police possessed probable cause by viewing an item that appeared

to be crack cocaine). Barkley, after admitting that he used

marijuana, took a bag of marijuana from his dresser and gave it

to the officers.

After finding the stem and the stash of Barkley's

marijuana, the officers obtained his consent to search the

apartment. Explaining that the evidence recovered gave the

officers probable cause to obtain a search warrant, Officer Drew

asked whether he could search the premises. In doing so, he

told Barkley that he was still free to decline their request.
- 15 -
Barkley nevertheless consented. To ensure that this consent was

voluntary, the officers questioned Barkley about his answer.

Barkley listened and again gave his consent for the search.

Only then did the officers perform the search and recover

additional marijuana.

The facts indicate that this consent was free and

voluntary. Throughout the encounter, Barkley remained

cooperative. He answered the officers' questions honestly. He

freely admitted using marijuana and "opted to give" some to the

officers. He questioned the officers about his rights. At

every stage of the encounter he appeared relaxed. As the

officers described Barkley, "he was very laid back" and had his

"hands in his pockets."

The absence of any coercive, threatening, or intimidating

conduct by the officers provides additional weight to the

conclusion that Barkley's consent was voluntary. The officers

openly informed Barkley of the reason for their visit. They

told Barkley that he was not under arrest, and on more than one

occasion informed him of his rights. They did not handcuff

Barkley, threaten physical or legal force against him at any

point, or interfere with his freedom of movement. Finally, the

officers' statement that they could obtain a search warrant for

the premises did not coerce Barkley. Instead, it merely

informed him of his options. See Limonja v. Commonwealth, 8

Va. App. 532, 544, 383 S.E.2d 476, 483 (1989). Given Barkley's
- 16 -
cooperative attitude and the noncoercive nature of the officers'

conduct, the trial court correctly held that the search of

Barkley's home was entirely consensual.

IV.

Settled Fourth Amendment principles govern this appeal and

validate the officers' search of Barkley's apartment. The

officers' conduct, when viewed in the light most favorable to

the Commonwealth, lacks the elements of coercion necessary to

turn the initial conversation into a seizure. The Commonwealth

also satisfied its burden of proving that Barkley consented to

the search of his apartment. For these reasons, we affirm the

trial court's denial of Barkley's motion to suppress.

Affirmed.

- 17 -