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
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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
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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
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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,
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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
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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
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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
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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,
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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)).
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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
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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.
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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
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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
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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.
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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
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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.
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