COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Alexandria, Virginia
ALLEN DERRICK SHELER
OPINION BY
v. Record No. 2424-00-4 JUDGE ROSEMARIE ANNUNZIATA
JULY 9, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Joan C. Ruff (J. Amy Dillard, Deputy Public
Defender, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Allen Derrick Sheler appeals his conviction by a jury for
robbery, abduction with the intent to extort pecuniary benefit,
and use of a firearm while committing robbery and abduction.
Sheler contends that the trial court erroneously denied his
motion to suppress evidence of glass fragments found on one of
Sheler's shoes. For the reasons that follow, we reverse and
remand.
I.
BACKGROUND
Under accepted principles, we review the evidence in the
light most favorable to the Commonwealth, the party prevailing
below. Great Eastern Resort Corp. v. Gordon, 31 Va. App. 608,
610, 525 S.E.2d 55, 56 (2000). At about 8:00 a.m. on December
27, 1998, two men wearing masks and gloves robbed a Wendy's
restaurant located on South Van Dorn Street in Alexandria,
Virginia. The men gained entry by breaking the glass in two
separate doors of the establishment. The restaurant was not yet
open for business, and three employees were inside, Elsy
Benitez, Sunvil Dwived, and Mohamed Yousef.
One of the intruders carried a handgun wrapped in cloth.
The taller of the two men held the gun and used it in a
threatening manner, demanding that Yousef open the safe. Once
the safe was open, the shorter robber placed the money from the
safe in a french fries box. The employees were ordered into a
freezer, where they were instructed to remain while the robbers
fled. When the employees came out of the freezer about ten to
fifteen minutes later, Yousef called the police from a public
telephone outside the building because the line in his office
had been disconnected.
Joseph Fisher, a firefighter and former private
investigator who was at a nearby ATM at the time of the
incident, saw Sheler's vehicle at the Wendy's restaurant about
the time of the robbery/abduction. He wrote down the vehicle's
license plate number after observing suspicious conduct around
the vehicle. The vehicle, a 1997 Plymouth Neon, was registered
to Sheler. When the police traced the vehicle back to Sheler,
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they discovered that he had reported the vehicle stolen that
day.
The morning of the robbery/abduction, Detective Durkin
spoke with Sheler's parents and told them he was investigating a
robbery and needed to speak with Sheler concerning the fact that
his car may have been involved in the crime. Durkin asked
Sheler's parents to telephone him if they learned his
whereabouts.
The police were advised that Sheler was at the home of a
friend in Prince Georges County, Maryland. About five hours
after the crimes had been committed, Durkin, accompanied by two
other officers, went to the residence. Two officers in uniform
from Prince Georges County, Maryland were already at the
residence, at Durkin's request, for jurisdictional purposes.
The Maryland officers did not draw their guns.
Officer Durkin knocked on the door. The Maryland officers
waited outside the residence. The Alexandria officers entered
the home and found Sheler sitting in the living room wearing
blue jeans and dark colored sneakers. Sheler's general
appearance was consistent with that of one of the robbers.
Durkin identified himself, displayed his badge, and told Sheler
that they wanted to ask some questions about his car. He said
he "would like [Sheler] to come back to Virginia where [they]
could take a statement" from him. Neither Officer Durkin nor
the other Alexandria officers drew their weapons or mentioned
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the robbery. Sheler said, "okay," and accompanied the officers
to the Alexandria police station. The officers did not touch
Sheler or use a harsh tone or profanity.
The officers neither told him he did not have to come nor
that he had to accompany them. On the way to the station,
Sheler sat in the back seat of the police car along with one of
the three Alexandria officers. He was not handcuffed.
During the interview at the station, Durkin asked to see
Sheler's shoes because he believed that the robbers had likely
walked through broken glass from the glass doors broken at the
crime scene and that they had picked up glass fragments on the
soles of their shoes. Sheler testified that Detective Durkin
told him that he had glass on the bottom of his shoes and then
told him to take off his shoes. Durkin testified that he did
not see the glass fragments until Sheler took off his shoes.
Specifically, Durkin "asked [Sheler] if [Durkin] could look at
[Sheler's] shoes." In response, Sheler "kicked them off his
feet and [Durkin] picked them up and looked at them." Durkin
saw that there were glass fragments on the sole of one of
Sheler's shoes and therefore seized them. He then seized
Sheler's blue jeans so that they too could be inspected for
glass fragments. The police took Sheler home after the
interview.
The police later obtained a search warrant and searched
Sheler's car. They found and seized additional glass samples
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and a paper bag from Wendy's containing a corner of a $20 bill,
a CD, and a variety of latent prints, one of which was that of
Sheler.
The glass particles acquired as a result of the seizure of
Sheler's shoes and pants were admitted into evidence over his
objection. A forensic science supervisor with the Division of
Forensic Science Crime Laboratory compared the optical and
physical properties of the glass found on Sheler's shoes and
pants with the glass recovered from the doors of the Wendy's
restaurant. He testified that three particles of glass
recovered from Sheler's shoes and two particles of glass from
Sheler's pants were consistent with the properties of glass
found in the door of the restaurant.
The trial court held that no illegal search or seizure
occurred and, therefore, denied Sheler's motion to suppress the
evidence of the glass fragments. It is from this ruling that
Sheler now appeals.
II.
ANALYSIS
On appeal, Sheler contends the trial court erred in denying
his motion to suppress the glass fragments because: 1) the
fragments found on the sole of Sheler's shoe and his clothes
were the fruit of an unlawful seizure of his person; and 2) the
fragments were the fruit of an unlawful search and seizure of
Sheler's shoes. Although we find that the seizure of Sheler's
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person was lawful, we reverse on the ground that the police
unlawfully searched Sheler's shoes.
In reviewing the trial court's denial of a motion to
suppress on appeal, we will review the evidence and all
reasonable inferences arising from it in the light most
favorable to the Commonwealth, the party prevailing below.
Dickerson v. Commonwealth, 35 Va. App. 172, 543 S.E.2d 623
(2001). The burden to show that the denial of the motion to
suppress constituted reversible error rests with the defendant.
Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232,
233 (1993).
A. Legality of the Seizure
The trial court found that Sheler had voluntarily
accompanied the police to the station and, thus, no unlawful
arrest or seizure had occurred. We agree.
A person is seized within the meaning of the Fourth
Amendment whenever there is a show of official authority such
that a reasonable person would have believed that he was not
free to terminate the encounter. Florida v. Royer, 460 U.S. 491
(1983) (plurality opinion) (citing United States v. Mendenhall,
446 U.S. 544, 554 (1980)); Moss v. Commonwealth, 7 Va. App. 305,
307, 373 S.E.2d 170, 171-72 (1988). An objective test
determines whether a reasonable person would have believed
himself or herself free to terminate the encounter "in view of
all of the circumstances surrounding the incident." Mendenhall,
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446 U.S. at 554; see also McGee v. Commonwealth, 25 Va. App.
193, 199-200, 487 S.E.2d 259, 262 (1997) (en banc).
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.
Mendenhall, 446 U.S. at 554; see Weathers v. Commonwealth, 32 Va.
App. 652, 659, 529 S.E.2d 847, 850-51 (2000).
Sheler, relying on our decision in McGee, argues that the
officers' "actions and words" conveyed the message that Sheler
might be or might become a suspect and, therefore, constituted a
show of official authority such that he did not feel free to
leave. In McGee, we held that, "[w]hen the police expressly
inform an individual that they have received information that the
individual is engaging in criminal activity, the police 'convey a
message that compliance with their requests is required.'" 25
Va. App. at 200, 487 S.E.2d at 262 (quoting Florida v. Bostick,
501 U.S. 429, 435 (1991)); see also Royer, 460 U.S. at 501
(finding a seizure where officers identified themselves as
narcotics agents, told defendant that he was suspected of
transporting narcotics, and asked him to accompany them to the
police room while retaining his plane ticket and driver's
license).
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Sheler's reliance on McGee is misplaced. In McGee, the
defendant was told that the officers had "received a call that
[he] was on this corner selling drugs and [that he] matched the
description." 25 Va. App. at 196, 487 S.E.2d at 260. We found
that this statement conveyed an unmistakable message to McGee
that the officers suspected he was selling drugs and that they
were detaining him to investigate his activity. Id. In this
case, the officer did not tell Sheler that he had been
specifically identified as a suspect in a particular crime that
the officer was investigating. Id. at 200, 487 S.E.2d at 262.
Indeed, the record shows that Officer Durkin asked Sheler to
come to the station to answer questions about his car and
obtained his consent before mentioning the robbery.
The law is well settled that mere questioning by the police
does not constitute a seizure. See Bostick, 501 U.S. at 434;
Mendenhall, 446 U.S. at 553-54; Richards v. Commonwealth, 8 Va.
App. 612, 615, 383 S.E.2d 268, 270 (1989). Consequently, where
the police inform an individual that they are conducting a
general investigation in response to a report, the encounter,
without more, is not a seizure. McGee, 25 Va. App. at 199, 487
S.E.2d at 262; Royer, 460 U.S. at 497; Williams v. Commonwealth,
21 Va. App. 263, 266, 463 S.E.2d 679, 681 (1995).
Sheler also contends that the officers made a show of force
because five officers were present who displayed their badges of
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authority and entered his friend's home without permission. We
disagree.
Considering the totality of the circumstances, we find that
the encounter was unaccompanied by coercion or a show of force
by the officers. Although several officers went to the house,
only Durkin spoke with the defendant inside the residence.
Durkin knocked on the door to the house, introduced himself to
the person who opened the door and asked if the defendant was
there. The person at the door "let [Durkin] in." None of the
officers touched Sheler, blocked his path, used threatening or
intimidating language or tone of voice, accused Sheler of a
crime, or displayed their weapons. He was not handcuffed or
otherwise placed in custody. While the record establishes that
there were five officers present, this fact standing alone does
not transform an encounter into a seizure. Cf. Watson v.
Commonwealth, 19 Va. App. 659, 663, 454 S.E.2d 358, 361 (1995)
(finding that mere presence of police, insufficient in itself to
create a seizure, is sufficient to continue a seizure where
police had previously handcuffed and restrained defendant).
Sheler testified that he believed he would be arrested if
he did not accompany the officers to the Alexandria police
station. Sheler explained that he did not feel free to leave
because "if [he] didn't cooperate, [the officer] would start
finding out that [he] did whatever."
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It is worth noting that the test of whether a reasonable
person would feel free to leave an encounter "presupposes an
innocent person." Bostick, 501 U.S. at 429. Here, Sheler
testified that he believed he would be arrested if he did not
accompany the officers to the Alexandria police station. Sheler
explained that he did not feel free to leave because "if [he]
didn't cooperate, [the officer] would start finding out that
[he] did whatever." Consequently, his subjective fear of arrest
stemmed from his guilt, and not from police activity. Sheler
admitted that the police told him only that they wanted to ask
him questions about his car and that he agreed to go with them
to the station. A reasonable, innocent person would not be so
intimidated by an officer requesting to ask questions about his
car that he would not feel free to leave. Because the police
did not make a show of official authority such that a reasonable
person would have believed he or she was not free to terminate
the encounter, we find that Sheler was not seized within the
meaning of the Fourth Amendment.
B. Illegality of the Search
The trial court ruled that the search was lawful and
admitted the evidence, finding that an individual has no
reasonable expectation of privacy in the soles of his or her
shoes. 1 Sheler maintains, however, that he had a reasonable
1
Because the trial court limited its analysis of the
lawfulness of the search to this legal conclusion, expressly
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expectation of privacy in the sole of his shoe and that the
glass fragments found on his shoe, and subsequently his pants,
should therefore be suppressed as the fruit of an unlawful
search. We agree.
The Fourth Amendment provides, in pertinent 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." U.S. Const. amend. IV.
Subject to several well established exceptions, warrantless
searches of any place or thing in which a person has a
reasonable expectation of privacy are unreasonable. See Mincey
v. Arizona, 437 U.S. 385, 390 (1978); Reittinger v.
Commonwealth, 260 Va. 232, 235, 532 S.E.2d 25, 27 (2000).
Because an unlawful "search compromises the individual interest
in privacy," Horton v. California, 496 U.S. 128, 133 (1990),
"the Commonwealth has the burden of proving the legitimacy of a
warrantless search and seizure." Simmons v. Commonwealth, 238
ruling that it made no findings "whether . . . taking the
clothes [and the shoes] was voluntary or not," and, therefore,
did not address or resolve factual matters that underlay the
issue of consent, we do not reach the Commonwealth's contention
that Sheler voluntarily consented to the search. Stateren v.
Montgomery Ward and Co., 234 Va. 303, 305-06, 362 S.E.2d 324,
326 (1987) (finding "right result wrong reason" rule
inappropriate because the trial judge confined his decision to a
different ground); Driscoll v. Commonwealth, 14 Va. App. 449,
452, 417 S.E.2d 312, 313-14 (1992) (noting that the right result
wrong reason rule does not apply where "further factual
resolution is needed before the right reason may be assigned to
support the trial court's decision").
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Va. 200, 204, 380 S.E.2d 656, 659 (1989). On appeal, the trial
court's legal conclusion concerning when, or whether, an illegal
search occurred is reviewed de novo. Archer v. Commonwealth, 26
Va. App. 1, 8, 492 S.E.2d 826, 830 (1997); McGee, 25 Va. App. at
198, 487 S.E.2d at 261; see Mendenhall, 446 U.S. at 552, 555.
However, the appellate court is "bound by the trial court's
findings of historical fact unless 'plainly wrong' or without
evidence to support them and [it] give[s] due weight to the
inferences drawn from those facts by resident judges and local
law enforcement officers." McGee, 25 Va. App. at 198, 487
S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690,
699 (1996)).
To determine whether an individual has a reasonable
expectation of privacy in an item, we must give effect to "our
societal understanding that certain areas deserve the most
scrupulous protection from government invasion." Oliver v.
United States, 466 U.S. 170, 178 (1984). The trial judge's
ruling that a shoe constituted "areas of the outer apparel that
is visible to the world" and that Sheler had no reasonable
expectation of privacy in his shoes failed to give effect to
this principle.
The mere fact that a person's clothing and shoes are
visible to the public in some general way does not extinguish a
person's constitutionally protected expectation of privacy in
them. See Katz v. United States, 389 U.S. 347, 351 (1967)
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(finding that what one "seeks to preserve as private, even in an
area accessible to the public, may be constitutionally
protected"). Indeed, several of our sister jurisdictions have
found that an individual has a reasonable expectation of privacy
in the clothing he or she wears. See, e.g., Evans v. State, 987
S.W.2d 741, 743 (Ark. App. 1999) (holding that "[a]n
individual's expectation of privacy in a purse is probably
greater than in any other property except the clothing worn by a
person"); Samuel v. State, 895 S.W.2d 487, 489 (Tex. Ct. App.
1995) (holding that "a person has a reasonable expectation of
privacy in the clothes he wears"); State v. Joyce, 639 A.2d
1007, 1013 (Conn. 1994) (holding that "generally there is a
reasonable expectation of privacy in the clothes that one
wears"); People v. Chernowas, 314 N.W.2d 505, 507 (Mich. App.
1982) (holding that "a defendant has a legitimate expectation of
privacy in his person and clothing").
We find that an individual's expectation of privacy in his
or her shoes is an interest that society is willing to accept as
reasonable. Generally, people do not expect other persons will
seize the shoes or other garments they wear and manipulate them
to explore and expose unseen features. By seizing the shoe, the
detective was able to manipulate the shoe and expose areas of
the shoe not readily seen. This conduct far exceeded the
contact Sheler and other citizens might reasonably expect from
the police or other members of the public. The search in this
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case was as intrusive as removing and searching a person's hat,
blouse, skirt, or jacket because of a suspicion that a portion
of the garment which is not exposed to the public's normal view
contains a minute fragment of an incriminating substance.
Furthermore, Sheler exhibited a subjective expectation that
the soles of his shoes remain free from close inspection. Bond
v. United States, 529 U.S. 334, 338 (2000); Shaver v.
Commonwealth, 30 Va. App. 789, 795, 520 S.E.2d 393, 396 (1999).
He did not display the crevices of the soles of his shoes in any
way or otherwise expose them to public scrutiny. Nothing in the
record suggests that the small piece of glass in the sole of
Sheler's shoe could have been seen by the public. The sole of
Sheler's shoe did not proclaim its contents by "transparen[cy,]
. . . distinctive configuration," or otherwise, so as to negate
his reasonable expectation of privacy. United States v.
Williams, 41 F.3d 192, 197 (4th Cir. 1994). Rather, the
evidence proved that the detective only became aware of the
glass because he asked Sheler "[t]o take [his shoe] off . . . so
that [the detective] could look at the bottoms." The detective
was able to discern "a little piece of glass in the sole of the
shoe" only after seizing the shoe, turning the shoe over, and
making close inspection of it. After he found the glass on
Sheler's shoes, he seized his pants.
Because Sheler had a reasonable expectation of privacy in
the object searched, the trial court erred in admitting the
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glass fragments found as a result of that search and the
subsequent search of his pants on that ground. Wong Sun v.
United States, 371 U.S. 471, 484 (1963) (holding that evidence
found as a direct or indirect result of an unconstitutional
invasion must be excluded).
C. Reversible Error
We find that the trial court's error is reversible.
"[B]efore a federal constitutional error can be held harmless,
the court must be able to declare a belief that it was harmless
beyond a reasonable doubt." Chapman v. California, 386 U.S. 18,
24 (1967). Chapman "requir[es] the beneficiary of the
constitutional error to prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained."
Id. (citation omitted); see Bass v. Commonwealth, 31 Va. App.
373, 387, 523 S.E.2d 534, 541 (2000) (requiring appellate court
to assess "whether there is a reasonable possibility that the
evidence complained of might have contributed to the
conviction," to determine that a constitutional error was
harmless beyond a reasonable doubt (citations omitted)).
In this case, the evidence that Sheler's pants and shoes
contained glass fragments from the door the robbers broke to
enter the store conclusively placed him at the scene of the
crime and was thus probative of his identity as one of the
robbers. The evidence buttressed the manager's testimony that,
although he only "saw [the robber] briefly," he knew Sheler was
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the robber. See Williams v. Commonwealth, 32 Va. App. 395, 406,
528 S.E.2d 166, 171-72 (2000) (holding that testimony of one
witness which a trier of fact may have found inconclusive can
become very convincing when other evidence corroborates it).
Moreover, the other evidence of identity was not overwhelming.
Although Sheler's car was observed at the scene of the robbery,
his car had been reported stolen earlier that day. The manager,
the only eyewitness able to describe more than the clothes,
race, and height of the robber, provided testimony that "raised
issues of credibility and, for that reason, cannot be considered
'overwhelming.'" Cairns v. Commonwealth, 35 Va. App. 1, 16, 542
S.E.2d 771, 778 (2001). A reasonable possibility exists,
therefore, that the unlawfully seized evidence contributed to
Sheler's conviction. Therefore, the trial court's admission of
the illegally seized evidence was reversible error.
Accordingly, we reverse the judgment of the trial court and
remand for further proceedings, if the Commonwealth be so
advised.
Reversed and remanded.
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Benton, J., concurring.
I concur in Parts I and II(B) and in the judgment reversing
the convictions and remanding for a new trial.
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