COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia
BRUCE LAMARR SYKES
OPINION BY
v. Record No. 2838-00-1 JUDGE ROBERT P. FRANK
DECEMBER 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on brief), for
appellant.
Susan M. Harris, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Bruce Lamarr Sykes (appellant) was convicted after a bench
trial of possession of heroin, in violation of Code § 18.2-250.
On appeal, appellant contends the trial court erred in denying his
motion to suppress because he was detained without reasonable
suspicion or probable cause. He argues, therefore, the search
incident to arrest was illegal. For the reasons stated herein, we
affirm the conviction.
I. BACKGROUND
Several City of Portsmouth police officers, members of the
tactical response unit, were on routine patrol in two or three
unmarked vehicles on the night of February 19, 2000. They saw a
group of males on Lancing Avenue who dispersed as the police cars
rounded the corner. Appellant, a member of the group, began
walking north.
Officer Steve T. Goldman exited his vehicle and approached
appellant. Goldman was one of "at least three other" police
officers who approached members of the group. All the officers
were in plain clothes, but "most of [them] had a black vest on
with police markings on it." No one activated any sirens or
emergency lights.
Appellant was "probably ten yards at the most - maybe five
yards - away from [the police] vehicles." Goldman approached
appellant and "asked him if [he] could see his identification."
Appellant agreed and "presented [Goldman] with what appeared to be
a valid [identification card] that identified him as Bruce Lamarr
Sykes."
After further conversation, Goldman asked appellant if he
could search him, and appellant said, "Yes." Goldman then said,
"You don't have any weapons on you?" and appellant said, "No."
Goldman asked, "You don't mind if I check you for weapons?"
Appellant again answered, "No." Finally, Goldman inquired, "What
about drugs or narcotics; do you have any of that on you?"
Appellant replied, "No."
Prior to sticking his hand in appellant's pocket, Goldman
asked if there was anything sharp inside, "a needle, razor blade
that might cut me?" Appellant said, "No." Goldman then put his
hand in appellant's right rear pocket and felt a razor blade with
- 2 -
his fingers. He pulled it from the pocket. Appellant kept
"changing his weight on either foot, which is, [in Goldman's]
experience, characteristic of someone being nervous." Goldman
then "asked [appellant] to walk back over to my vehicle" because
appellant had "managed to maneuver the two of us [Goldman and
appellant] away from the rest of the team at the site."
As they were walking toward the vehicle, appellant "broke
from [Goldman's] grasp and began running." Officer R.D. Pisle,
who was "some distance away with another officer" assisted Goldman
in catching appellant. The officers then arrested appellant for
carrying a concealed weapon -- the razor blade.
During a search incident to the arrest, Pisle recovered three
heroin capsules inside "a little piece of paper" taken from
appellant's pocket. Appellant was charged with possession of a
concealed weapon, in violation of Code § 18.2-308, and possession
of heroin, in violation of Code § 18.2-250.
At trial, appellant moved to suppress the heroin, arguing the
police had no reasonable suspicion to seize him initially. He
contended Goldman unconstitutionally seized him in violation of
the Fourth Amendment when he asked for identification. The
Commonwealth argued the encounter was consensual and, therefore,
no seizure occurred. 1
1
The Commonwealth did not argue the motion was
inappropriate under Code § 19.2-266.2.
- 3 -
Appellant also moved to strike the evidence on the concealed
weapon charge, contending a razor is not a "weapon" under Code
§ 18.2-308. The trial court then asked appellant's counsel:
Even if I agree with your [argument], that
the razor blade in this case they didn't
prove was a concealed weapon, [sic] they
still have probable cause based on the blade,
don't they, and isn't that for the Court to
decide and for the officer to act upon
probable cause, and then I decide whether
they've proven it beyond a reasonable doubt?
If I rule they haven't proved beyond a
reasonable doubt that a razor blade in this
case was a concealed weapon, then don't they
still have the second count?
Appellant's counsel replied:
I think they do. I think if you rule that
this is a consensual encounter and that that
search was a part of a consensual encounter,
yes. I think even though if it turns out
that the conviction falls, I think if you
rule that they had probable cause to arrest
him for that, then they have a valid arrest
and a valid search incident to that arrest.
The trial court sustained the motion to strike the concealed
weapon offense. The court then implicitly denied the motion to
suppress the evidence as a result of an illegal detention when it
convicted appellant of the possession of heroin offense.
II. ANALYSIS
Appellant argues his encounter with Goldman was not
consensual. Even if the initial encounter and search were
consensual, he contends the second search during which the heroin
was found was unconstitutional because the officer did not have
- 4 -
probable cause to arrest him and to search incident to that
arrest.
The standard of review for such cases is clear.
An assertion that a person was "seized,"
within the meaning of the Fourth Amendment,
presents a mixed question of law and fact
that is reviewed de novo on appeal.
Likewise, an assertion that the police
lacked probable cause to arrest a defendant
presents a question of both law and fact,
which is reviewed de novo on appeal.
In considering such questions, the appellate
court is required to give deference to the
factual findings of the trial court and to
determine independently whether, under the
law, the manner in which the evidence was
obtained satisfies constitutional
requirements. The burden is on the
defendant to show that the denial of his
suppression motion, when the evidence is
considered in the light most favorable to
the Commonwealth, was reversible error.
McCain v. Commonwealth, 261 Va. 483, 489-90, 545 S.E.2d 541, 545
(2001) (citations omitted).
A.
Fourth Amendment jurisprudence recognizes
three categories of police-citizen
confrontations: (1) consensual encounters,
(2) brief, minimally intrusive investigatory
detentions, based upon specific, articulable
facts, commonly referred to as Terry stops,
see Terry v. Ohio, 392 U.S. 1 (1968), and
(3) highly intrusive arrests and searches
founded on probable cause.
Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744,
747 (1995). If a reasonable person would feel free to ignore the
- 5 -
officer's questions and leave, then the encounter is consensual.
United States v. Mendenhall, 446 U.S. 544, 555 (1980).
Whether a defendant gave an officer consent to search "is a
factual question to be determined by the trier of fact," which
receives great deference from this Court. Jean-Laurent v.
Commonwealth, 34 Va. App. 74, 79, 538 S.E.2d 316, 318 (2000).
Factors to examine when determining whether an encounter was
consensual include
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. See Terry v. Ohio, [392 U.S.
1,] 19, n. 16 [(1968)]; Dunaway v. New York,
442 U.S. 200, 207, and n. 6; 3 W. LaFave,
Search and Seizure 53-55 (1978). In the
absence of some such evidence, otherwise
inoffensive contact between a member of the
public and the police cannot, as a matter of
law, amount to a seizure of that person.
Mendenhall, 446 U.S. at 554-55. See also Baldwin v.
Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648-49 (1992).
The initial encounter between appellant and Goldman was
consensual. While the officers wore some insignia of their
office, no show of force was used when the police approached the
group. No weapons were drawn. Only Officer Goldman approached
appellant, while the others remained five to ten yards away.
Goldman asked for and received permission before he searched
appellant and found the razor. Nothing in the record indicates
- 6 -
Goldman asked his questions with a commanding voice or tone.
The trial court's finding of consent is not clearly wrong.
Appellant argues, even if the encounter was consensual, the
request for identification and the taking of the license
constituted a seizure under the principles enunciated in
Reittinger v. Commonwealth, 260 Va. 232, 532 S.E.2d 25 (2000).
We disagree.
In Reittinger, two armed deputies stopped and approached
the car Reittinger was driving at night in a rural area. Id. at
236, 532 S.E.2d at 27. One deputy asked three times for
permission to search the vehicle. Id. at 237, 532 S.E.2d at 27.
Reittinger never explicitly gave his permission for the search,
but instead got out of the car, at which point the deputy
observed a bulge and began a pat-down search of Reittinger. Id.
at 234, 532 S.E.2d at 26.
Unlike Reittinger, appellant was standing on the sidewalk,
not driving a car. Appellant was approached by one officer in
civilian clothing rather than by two uniformed officers standing
on either side of him. Appellant was asked once if he would
show the officer some identification, which he agreed to do and
did; he was asked once for permission to search his person,
which he immediately granted. Reittinger, on the other hand,
was badgered with numerous requests for permission to search his
car, which he never gave. Id. at 236-37, 532 S.E.2d at 27.
This distinction is critical. See Dickerson v. Commonwealth, 35
- 7 -
Va. App. 172, 181, 543 S.E.2d 623, 628 (2001). While
"'accusatory, persistent, and intrusive' questioning may turn an
otherwise voluntary encounter into a coercive one if it conveys
the message that compliance is required," appellant was not
questioned in this manner. United States v. Hernandez, 93 F.3d
1493, 1499 (10th Cir. 1996) (quoting United States v. Little, 60
F.3d 708, 712 (10th Cir. 1995)).
Here, McCain is more analogous than Reittinger. In McCain,
which involved an officer's request for and receipt of
identification and permission to search a parked car, the
Supreme Court held, "a police request made in a public place for
a person to produce some identification, by itself, generally
does not constitute a Fourth Amendment seizure." 261 Va. at
491, 545 S.E.2d at 546. While appellant argues a request alone
constitutes a seizure, McCain held it does not.
Like McCain, appellant was not seen driving a vehicle nor
was he asked for identification pursuant to Code § 46.2-104.
Only one officer approached McCain, as only Goldman approached
appellant.
In McCain, the officer simply asked for some identification
and then requested and received permission to search the car;
the officer then requested permission to search McCain, which
McCain would not give. Id. at 491, 545 S.E.2d at 546. Here,
Officer Goldman asked once for some identification and for
permission to search appellant, both of which were given. As
- 8 -
McCain concluded, this type of encounter does not constitute a
seizure. Id.
Clearly, the search that led to the discovery of the razor
did not violate the Fourth Amendment. However, that ruling does
not necessarily apply to the second search, during which Goldman
discovered the heroin. Appellant argues the officer did not
have probable cause to arrest him for carrying a concealed
weapon because the word, "razor," in the statute does not
include individual razor blades. Therefore, he contends,
Goldman's search was conducted without probable cause and
incident to an unlawful arrest.
The trial court ruled, while the evidence did not prove
appellant guilty of carrying a concealed weapon, the officer
still had probable cause to arrest appellant because Goldman
believed the razor blade was a concealed weapon. We find the
officer had probable cause to arrest appellant because a razor
blade is a "weapon" under Code § 18.2-308.
Code § 18.2-308(A) prohibits any person from carrying
about his person, hidden from common
observation, (i) any pistol, revolver, or
other weapon designed or intended to propel
a missile of any kind; (ii) any dirk, bowie
knife, switchblade knife, ballistic knife,
razor, slingshot, spring stick, metal
knucks, or blackjack; (iii) any flailing
instrument consisting of two or more rigid
parts connected in such a manner as to allow
them to swing freely, which may be known as
a nun chahka, nun chuck, nunchaku, shuriken,
or fighting chain; (iv) any disc, of
whatever configuration, having at least two
- 9 -
points or pointed blades which is designed
to be thrown or propelled and which may be
known as a throwing star or oriental dart;
or (v) any weapon of like kind as those
enumerated in this subsection . . . .
(Emphasis added.)
"'Although penal laws are to be construed strictly,'"
Willis v. Commonwealth, 10 Va. App. 430, 441, 393 S.E.2d 405,
411 (1990) (quoting Huddleston v. United States, 415 U.S. 814,
831 (1974)), the plain language of a statute should not be
ignored when examining the criminal code. As this Court
explained in Krampen v. Commonwealth:
"Where a statute is unambiguous, the plain
meaning is to be accepted without resort to
the rules of statutory interpretation."
Last v. Virginia State Bd. of Med., 14 Va.
App. 906, 910, 421 S.E.2d 201, 205 (1992).
"'Courts are not permitted to rewrite
statutes. This is a legislative function.
The manifest intention of the legislature,
clearly disclosed by its language, must be
applied.'" Barr v. Town & Country
Properties, Inc., 240 Va. 292, 295, 396
S.E.2d 672, 674 (1990) (quoting Anderson v.
Commonwealth, 182 Va. 560, 566, 29 S.E.2d
838, 841 (1944)). Accordingly, we must
"'take the words as written'" . . . and give
them their plain meaning. Adkins v.
Commonwealth, 27 Va. App. 166, 169, 497
S.E.2d 896, 897 (1998) (quoting Birdsong
Peanut Co. v. Cowling, 8 Va. App. 274, 277,
381 S.E.2d 24, 26 (1989)).
29 Va. App. 163, 167, 510 S.E.2d 276, 278 (1999).
Here, the statute is clear on its face. "Any . . . razor"
is explicitly included as a "weapon" in Code § 18.2-308.
- 10 -
Clearly, appellant carried a concealed weapon as prohibited by
the statute.
Appellant does not deny he had a razor blade in his pocket,
but rather contends a "razor" must have a handle to constitute a
"weapon" under Code § 18.2-308. He bases this argument on
O'Banion v. Commonwealth, 33 Va. App. 47, 531 S.E.2d 599 (2000).
Neither the language of the statute nor O'Banion requires such a
finding, however.
In O'Banion, after the police arrested O'Banion for
trespassing, they found a steak knife and a box-cutter on his
person. Id. at 54, 531 S.E.2d at 602-03. In finding both of
these items were "weapons" under Code § 18.2-308, the Court
noted, "[b]y its terms, the Code prohibits the carrying of a
concealed razor or any weapon of like kind." Id. at 59, 531
S.E.2d at 605. The Court continued, explaining that a
box-cutter, by incorporating a razor, fit within the definition
of "razor" as a "weapon" that cannot be concealed under the
statute. Id. at 60, 531 S.E.2d at 605. The Court did not
define "razor" as a box-cutter but instead found a box-cutter
was an example of a razor. See id. O'Banion essentially held
that the statute did not simply proscribe a razor blade, but was
expansive enough to include an object that incorporated a razor.
Although the Court cited a "traditional dictionary
definition" of razor that defined the word as an "'instrument
made with the cutting blade and handle in one,'" id. (quoting
- 11 -
Webster's Third New International Dictionary 1888 (1981)), the
opinion did not find that a handle is a defining characteristic
of a "razor." O'Banion also did not hold that the Webster's
definition is the exclusive one for purposes of Code § 18.2-308,
but rather used Webster's as an example of a generally accepted
definition that would include a box-cutter as a "razor." Id.
The officer had probable cause to arrest appellant for
carrying a concealed weapon when he discovered a razor in
appellant's pocket. The search incident to this arrest was
valid.
For the reasons stated, we affirm the conviction for
possession of heroin.
Affirmed.
- 12 -