COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia
LEON THOMAS HARRIS
OPINION BY
v. Record No. 1518-01-2 JUDGE G. STEVEN AGEE
AUGUST 20, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Elliott B. Bender for appellant.
Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Leon Thomas Harris (Harris) was convicted, in a bench trial
in the Chesterfield County Circuit Court, of two counts of petit
larceny, in violation of Code § 18.2-96. He was sentenced to
serve a term of twelve months in jail on each conviction, with
eleven months suspended, the remaining time on each conviction
to run concurrently. On appeal, he contends the trial court
erred by (1) denying his motion to suppress evidence gathered in
a search he contends was unlawful, and (2) finding the evidence
sufficient to establish that he committed the offenses. For the
following reasons, we disagree and affirm Harris' convictions.
I. BACKGROUND
At 4:00 a.m. on May 25, 2002, Chesterfield County Police
Officer Blaine Davis initiated a traffic stop of a pickup truck
with no license plate light, a violation of Code § 46.2-1013.
Harris was the driver of the truck, and he had one passenger in
the cab. A second officer arrived shortly thereafter and
remained near the passenger side of Officer Davis' vehicle.
Harris stated he knew he was being stopped because his
license plate light was out. Officer Davis asked Harris for his
driver's license, but Harris produced only a social security
card. Although polite and cooperative, Harris appeared nervous
so Officer Davis asked him to exit the truck and stand between
it and the officer's patrol car. Harris gave Officer Davis his
name and date of birth, which the officer used to verify Harris
had a valid driver's license.
Officer Davis returned the social security card to Harris.
Officer Davis then asked Harris whether he had anything illegal
in his truck or on his person. When Harris responded he did
not, Officer Davis asked him for permission to search him and
his truck. Harris consented. Officer Davis first searched
Harris and found nothing illegal. For safety reasons, before
searching Harris' truck, Officer Davis asked him to sit in the
front seat of the police car. The passenger was then asked to
exit the truck and stand by the second officer at the passenger
side door. The officer was not positioned to block Harris from
exiting the police car.
Officer Davis recovered stolen property during his search
of Harris' truck.
- 2 -
Prior to trial, Harris moved to suppress the items seized
from his truck, claiming he should have been allowed to proceed
on his way after Officer Davis determined he had a valid license
and returned his social security card. He claimed his
subsequent consent to search was not voluntary because there
were two officers on the scene, their emergency lights were
activated, and Officer Davis made him sit in the police vehicle
while his truck was searched. He argues that because he was
seated in the car during the search, he could not have withdrawn
his consent, even if he had wanted to, and that a reasonable
person would not have felt free to deny the officer's request to
search under the circumstances. The trial judge overruled the
motion, finding that Harris had been the subject of a lawful
traffic stop and then consented to the subsequent search.
Officer Davis testified that after he discovered the stolen
property in Harris' truck, Harris admitted he and his passenger
had entered several cars that evening and had taken things,
including a compact disc player, from the Loch Braemar area of
Chesterfield County. He admitted the items he had taken were in
his vehicle when Officer Davis stopped him.
The owners of the stolen property testified by identifying
the items stolen on May 25, 2000, from their cars in Loch
Braemar.
- 3 -
II. MOTION TO SUPPRESS
On appeal, Harris argues the trial court erred in denying
his motion to suppress. He contends he was unlawfully seized
and his vehicle searched without probable cause. For the
following reasons, we affirm the trial court's decision to deny
the motion to suppress.
"At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant's Fourth Amendment
rights." Reel v. Commonwealth, 31 Va. App. 262, 265, 522 S.E.2d
881, 882 (2000). "It[, however,] is well established that, on
appeal, appellant carries the burden to show, considering the
evidence in the light most favorable to the Commonwealth, that
the denial of a motion to suppress constitutes reversible
error." Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437
S.E.2d 232, 233 (1993).
Ultimate questions of reasonable suspicion
and probable cause . . . involve questions
of both law and fact and are reviewed de
novo on appeal. This Court is bound by the
trial court's findings of historical fact
unless plainly wrong or without evidence to
support them and we give due weight to the
inferences drawn from those facts by
resident judges and local law enforcement
officers.
Neal v. Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d 422, 424
(1998) (citations omitted).
- 4 -
Harris does not contest that the malfunctioning light on
his truck, a violation of Code § 46.2-1013, provided Officer
Davis with a lawful reason to stop his vehicle. Harris was then
unable to produce his driver's license and acted very nervous.
The officer asked him to step out of his vehicle to further
investigate Harris' identity as he inquired over his hand radio
whether the information Harris provided matched a valid driver's
license. Under the totality of the circumstances, this action
was reasonable to facilitate the investigation and for the
officer's safety. Upon the lawful stop of an automobile, we
have recognized that the balancing of the interests of the
individual(s) and society may permit police officers to require
a vehicle's occupants to exit the vehicle. See generally,
Bethea v. Commonwealth, 14 Va. App. 474, 419 S.E.2d 249 (1992),
aff'd, 245 Va. 416, 429 S.E.2d 211 (1993).
Once Officer Davis verified that Harris was licensed to
operate a motor vehicle, he returned the social security card.
The officer did not charge Harris with any offense, but also did
not tell Harris he was free to leave. At this point, the
detention supported by a reasonable articulable suspicion ended.
The trial court determined that the encounter thereafter
continued on a consensual basis.
A consensual encounter can follow a legitimate detention.
See Ohio v. Robinette, 519 U.S. 33, 39-40 (1996) (holding that
consensual encounter may begin after the legitimate detention
- 5 -
has ended even if detainee is not told he is free to go).
Consensual encounters "'need not be predicated on any suspicion
of the person's involvement in wrongdoing,' and remain consensual
'as long as the citizen voluntarily cooperates with the
police.'" Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d
869, 870 (1992) (quoting United States v. Wilson, 953 F.2d 116,
121 (4th Cir. 1991)). See Iglesias v. Commonwealth, 7 Va. App.
93, 99, 372 S.E.2d 170, 173 (1988). Without some indicated
restraint, mere questioning by officers when a routine traffic
stop is over and its purpose served does not amount to a seizure
under the Fourth Amendment. See Dickerson v. Commonwealth, 35
Va. App. 172, 543 S.E.2d 623 (2001); Commonwealth v. Rice, 28
Va. App. 374, 540 S.E.2d 877 (1998); see also United States v.
Sullivan, 138 F.3d 126, 131 (4th Cir. 1998).
Here, Officer Davis testified that he asked permission to
search Harris and his vehicle and permission was granted.
Harris does not dispute these facts. Instead, Harris contends
his consent was not voluntary because a reasonably prudent
person would not have felt free to say "no" under the
circumstances. He supports this contention by pointing out that
he was never apprised of his right to leave the scene or to
refuse consent to the search, and that two officers were present
who had activated the emergency lights on their police vehicles.
We disagree with Harris' contention.
- 6 -
Whether the consent was freely given is a question of fact
to be determined from "the totality of all the circumstances."
Id. The voluntariness of the consent is a question of fact to
be determined by the trial court and must be accepted on appeal
unless clearly erroneous. Limonja v. Commonwealth, 8 Va. App.
532, 540, 383 S.E.2d 476, 481 (1989) (en banc) (citing Stamper
v. Commonwealth, 220 Va. 260, 268, 257 S.E.2d 808, 814 (1979),
cert. denied, 445 U.S. 972 (1980)).
In Schneckloth v. Bustamante, 412 U.S. 218 (1973), the
Supreme Court of the United States established the standard to
determine voluntariness of a consent:
[W]hen the subject of a search is not in
custody and the State attempts to justify a
search on the basis of his consent, the
Fourth and Fourteenth Amendments require
that it demonstrate that the consent was in
fact voluntarily given, and not the result
of duress or coercion, express or implied.
Voluntariness is a question of fact to be
determined from all the circumstances, and
while the subject's knowledge of a right to
refuse is a factor to be taken into account,
the prosecution is not required to
demonstrate such knowledge as a prerequisite
to establishing a voluntary consent.
Id. at 248-49.
The evidence in this case adequately establishes that
Harris voluntarily and intelligently consented to a search of
his truck. The search was not made upon any claim of authority
by Officer Davis; there was no show of force by Officer Davis or
the other officer on the scene; there is no evidence that the
- 7 -
other officer had any interaction with Harris; there were no
threats; Harris has claimed no mental or emotional infirmity nor
does the record disclose any; and there has been no allegation
of deception as to identity or purpose of the police.
Furthermore, Officer Davis' failure to inform Harris of his
Fourth Amendment protections or his right to refuse consent does
not render the consent involuntary. Deer v. Commonwealth, 17
Va. App. 730, 735, 441 S.E.2d 33, 36 (1994); Limonja, 8 Va. App.
at 541, 383 S.E.2d at 481 (citing United States v. Watson, 423
U.S. 411, 425 (1976)); see also United States v. Drayton, 122
S. Ct. 2105 (2002).
Although Harris claims coercion, he has not pointed to any
specific facts in the record to support his position, and we
find none. Under the totality of the circumstances in this
case, the search was conducted with Harris' consent and did not
violate the Fourth Amendment.
Our decision is consistent with our previous holdings. In
Limonja, a police officer stopped Limonja's vehicle after she
failed to stop at a tollbooth and pay the toll. Id. at 540-41,
383 S.E.2d at 481. The officer approached the vehicle and
explained why he had stopped it. While the officer reviewed
Limonja's driver's license and the Florida rental papers for the
vehicle, he noticed a radar detector partially in view on the
passenger's side of the vehicle. At that point, the officer
asked for permission to search the vehicle. The officer then
- 8 -
had the occupants exit the car and stand to the rear in order to
be away from traffic. We held the evidence adequately
established that Limonja and her passenger voluntarily and
intelligently consented to a search of the vehicle.
As in the case at bar, in Limonja the officer did not
inform the two that they were free to go or inform them that
they could refuse to consent to the search. The search in
Limonja, again like the search in the case at bar, was not made
upon any claim of authority by the police; there was no show of
force by the police; there were no threats; the defendants
claimed no mental or emotional infirmity nor did the record
disclose any; and there had been no deception as to identity or
purpose of the police. Under the totality of the circumstances
presented, we held that the consent to search was freely and
voluntarily given. Id.
We are not persuaded by Harris' argument that the Supreme
Court of Virginia's decision in Reittinger v. Commonwealth, 260
Va. 232, 532 S.E.2d 25 (2000), requires us to reach a different
conclusion. The cases are clearly distinguishable.
In Reittinger, sheriff's deputies stopped a van with "only
one operable headlight." One deputy approached the driver's
side of the van, while a second deputy approached the van's
passenger side. The deputy on the driver's side of the vehicle
asked Reittinger, the driver, for his driver's license and
vehicle registration and informed Reittinger that the van had
- 9 -
only one illuminated headlight. Thereupon, Reittinger displayed
a new headlight that he said he planned to install the following
day. The deputy, having decided against issuing a citation,
simply gave Reittinger a verbal warning and told him that he was
"free to go." The deputy then immediately asked Reittinger
whether he had any illegal weapons or drugs in the vehicle, and
Reittinger stated that there was nothing illegal in the van.
The deputy then asked Reittinger for permission to search the
van. Reittinger did not respond and appeared to consult with
the passengers in the van so the deputy twice repeated the
request to search.
Reittinger still did not respond, but exited the van
whereupon the deputy saw a "large bulge" in Reittinger's right
pants pocket and conducted a "pat down" search of Reittinger.
The bulge felt "hard," and the deputy thought Reittinger might
be carrying a weapon so he ordered Reittinger to empty his
pocket. Reittinger removed an object that proved to be a
smoking pipe containing marijuana residue. Id. at 234-35, 532
S.E.2d at 26. The Supreme Court held that the encounter and
search were not consensual. Id. at 237, 532 S.E.2d at 28.
Unlike the evidence in Reittinger, in the instant case, at
the time consent to search was given, there is no evidence
establishing an encounter in which a reasonable person would not
have felt free to leave or to refuse consent. There was no
persistent request to be allowed to search the vehicle. There
- 10 -
was no show of authority or coercive acts. Furthermore, unlike
the driver in Reittinger who remained mute to the officer's
repeated requests to search the vehicle, Harris specifically
gave consent to a search.
We conclude, therefore, that the record in this case
contains sufficient evidence to support the trial court's
finding that Officer Davis conducted the search after Harris
gave his voluntary, unequivocal and specific consent.
III. SUFFICIENCY OF THE EVIDENCE
Harris also challenges his conviction for larceny,
contending the evidence was insufficient to establish he
committed the offense. Specifically, Harris contends the
Commonwealth failed to establish beyond a reasonable doubt that
he was the person who stole the items recovered from his truck.
For the following reasons, we disagree and affirm Harris'
convictions.
When considering the sufficiency of the evidence on appeal
in a criminal case, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
review, we do not substitute our own judgment for that of the
trier of fact. See Cable v. Commonwealth, 243 Va. 236, 239, 415
S.E.2d 218, 220 (1992). Witness credibility, the weight
accorded the testimony and the inferences to be drawn from
- 11 -
proven facts are matters to be determined by the fact finder.
See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473,
476 (1989).
The trial court's judgment will not be set aside unless it
appears that the judgment is plainly wrong or without supporting
evidence. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). "Circumstantial evidence is as
competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt." Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
"However, 'the Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant.' Whether an
alternative hypothesis of innocence is reasonable is a question
of fact and, therefore, is binding on appeal unless plainly
wrong." Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492
S.E.2d 826, 832 (1997) (citation omitted) (quoting Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993)).
"Larceny is the wrongful taking of goods of another without
the owner's consent and with the intention to permanently
deprive the owner of possession of the goods. Once the crime of
larceny is established, the unexplained possession of recently
stolen goods permits an inference of larceny by the possessor."
Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444
- 12 -
(1987) (citing Dunlavey v. Commonwealth, 184 Va. 521, 524, 35
S.E.2d 763, 764 (1945)). Possession must be exclusive but may
also be joint. See Moehring v. Commonwealth, 223 Va. 564, 568,
290 S.E.2d 891, 893 (1982).
The victims testified that the items recovered from Harris'
truck had been taken from their vehicles in the Loch Braemar
subdivision of Chesterfield County on May 25, 2000. That same
day, Officer Davis discovered the stolen items in Harris'
vehicle. Harris admitted to Officer Davis that he and a friend
had removed the recovered items from other persons' vehicles in
Loch Braemar. This evidence was competent, not inherently
incredible, and sufficient to prove beyond a reasonable doubt
that Harris was guilty of petit larceny. See Bright, 4 Va. App.
at 251, 356 S.E.2d at 444.
Accordingly, we affirm Harris' convictions.
Affirmed.
- 13 -