Garrison v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia

WILLIAM GARRISON, JR.
OPINION BY
v. Record No. 1620-00-4 JUDGE G. STEVEN AGEE
JULY 31, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge

Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on brief), for
appellant.

Susan M. Harris, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.

William Garrison, Jr. (Garrison) was convicted in the

Loudoun County Circuit Court, pursuant to a conditional guilty

plea, of stealing a credit card on or about June 28, 1999, in

violation of Code § 18.2-192, credit card forgery, in violation

of Code § 18.2-193 and credit card fraud, in violation of Code

§ 18.2-195. The trial court sentenced Garrison to serve a term

of one year and six months incarceration.

Pursuant to the conditional plea, Garrison now appeals

averring the trial court erred in denying his motion to suppress

statements he made to Leesburg police officers. Garrison

complains the motion should have been granted because the police

officers lacked a reasonable, articulable suspicion to detain
him. In addition, Garrison avers the trial court erred, at the

hearing on the motion to suppress, by (1) excluding from

evidence Garrison's subjective belief that he was in police

custody and (2) admitting certain hearsay evidence. For the

following reasons, we disagree and affirm the decisions of the

trial court.

I. BACKGROUND

On July 8, 1999, Officers Daly and Pebler of the Leesburg

Police Department were called to Dulles Motorcars, a car

dealership. The proprietor of the dealership, Jeffrey Collins,

complained that a customer's wallet and credit card were stolen

from a car left for service on June 28, 1999. Collins suspected

Garrison, an employee, to be the thief because he had access to

the car when it first came in and left "unexpectedly within a

few minutes." Collins also informed the police officers that a

worker from K-Mart had "heard about a transaction where

(Garrison) went and bought a battery charger and some jumper

cables with a credit card and that those items were at this

person's girlfriend's house or apartment." Collins showed the

officer a carbon of the credit card receipt from K-Mart,

explaining it was not the victim's handwriting.

As a result, the police officers resolved to "follow up on

this and see if there was anything to this." They interviewed

some dealership employees and thought it "would be a good

opportunity" to interview Garrison. However, when they

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approached Garrison's department, he had "for whatever reason,

left the business again on foot and started walking from Dulles

Motorcars toward the Douglas Community Center," which was

nearby. A co-worker had informed Garrison that "the police are

coming back here for you right now." By police radio, Officers

Daly and Pebler issued a lookout for Garrison and "completed

[their] interview very quickly and started moving in the

direction we thought [Garrison] had gone."

As the officers were leaving Dulles Motorcars, they

received a communication from Officers Amato and Rourke that

they "had seen [Garrison] and that they were detaining him for

us to talk to him." Approximately one minute passed between the

time the lookout was issued and Garrison was spotted. Officers

Amato and Rourke, who were in plain clothes, saw Garrison in the

Douglas Community Center, so they pulled into the parking lot,

stopping about ten feet from him. Garrison "continued to walk

toward the officers."

Officer Rourke never exited the car, but he opened his door

and informed Garrison other officers were on their way and

wanted to talk to him. Rourke did not order Garrison to stop,

point a weapon or put hands on him.

Officer Amato knew Garrison from past "dealings" with him.

As Officer Amato stepped out of the car, Garrison greeted him.

The officer "greeted him back and said something like 'hey man,

what's going on?' [Officer Amato then said] 'I think these guys

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want to talk to you' and that's when [Pebler and Daly] pulled

up." Officer Amato did not put his hands on Garrison or draw

his weapon. He remained away from Garrison next to his vehicle

while they spoke.

Officers Daly and Pebler arrived in the parking lot

approximately thirty seconds later. Officers Amato and Rourke

left as soon as the others began speaking with Garrison.

Officer Pebler spoke to Garrison in the parking lot. He

told Garrison that he had evidence Garrison might have been

involved in a theft at the car dealership and that the officers

would like him to talk with them at the police station.

Garrison asked what the officers wanted to speak to him about.

Officer Pebler told Garrison that they would discuss everything

with him at the police station, but that Garrison was "free to

go and would be free to go when [they] concluded [their]

conversation." He further stated that Garrison could refuse to

go. Garrison agreed to go with the officers.

Garrison "got into the [police] car" but was not "put into

the car." The car doors were not locked. The ride to the

police station took approximately one minute. The officers and

Garrison walked into the station and went into an interview room

off the lobby. While entry to the interview room required a

passkey, a person could exit at any time without a key.

Garrison was seated by the door with the police officers across

a table facing him and the door. Garrison had unimpeded access

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to the door. Officer Pebler again advised Garrison that he was

free to leave at any time. Garrison did not ask to leave and

did not ask for a lawyer.

Officer Pebler reviewed with Garrison the evidence that he

had at that point. Garrison "admitted that he had taken the

credit card, but not the wallet . . . and [had] left work and

went to the K-Mart store on his break and purchased a battery

charger and jumper cables." Garrison voluntarily wrote these

"very same facts" down on paper at the police officer's request.

Garrison was "very cooperative and it was a cordial

conversation." Garrison was never read the Miranda rights.

Officer Pebler and Garrison were in the interview room for

approximately thirty minutes. Office Pebler left the room once.

Officer Daly was in and out and never spoke to Garrison. When

Garrison completed his written statement, Officer Pebler asked

him if he wanted a ride home. Garrison declined the offer and

left the station.

At the suppression hearing, Garrison gave a slightly

different version of his encounter with the four police

officers. Garrison claimed Officer Amato had informed him in

the parking lot that "he needed me to stay here." Further, he

claimed Officer Amato did not know why Garrison needed to stay.

Garrison testified that he did not feel free to leave because he

had witnessed Officer Amato chasing people in the past and that

walking off would "create a problem that wasn't necessary at the

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time." Garrison admitted that no officer raised his voice,

pulled a weapon or put hands on him.

Garrison testified that Officer Pebler directed him to the

police car and that, when he tried to get out, the door was

locked. Also, according to Garrison, he was never informed that

he could leave after his arrival at the police station and he

did not know the interview room door was unlocked. He testified

that once, when he was left by himself, he "touched the knob,

but the door wouldn't open."

As to his statements regarding the stolen credit card,

Garrison, on cross-examination, explained that he "told the

police officer what he, what he asked me."

At the end of the presentation of evidence on the motion to

suppress, the trial court found Garrison voluntarily went with

the officers to the police station. The trial court further

found that Garrison knew he was in an unlocked room from which

he was free to leave, but chose not to do so. Finally, the

court found Garrison spoke to the officers of his own free will

and accord and that a reasonable person under the circumstances

would have felt free to leave and under no compulsion to

participate in the police interview.

I think Mr. Garrison made a conscious
decision on his own that he was going to
stop and that he was going to see what these
officers wanted. . . . Mr. Garrison made a
voluntary decision on his own to stay there.

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 [Mr. Garrison] wasn't under arrest, he was
free to leave. [The officers] wanted to
talk to him and they wanted to do it down at
the police station. I don't think that a
reasonable person of Mr. Garrison's
circumstances there would have thought that
he was under any compulsion by those police
officers to have to do that.

* * * * * * *

I think he voluntarily went to the station
with the police officers. I think that Mr.
Garrison was led into a room that was right
off the lobby, that was unlocked and Mr.
Garrison was aware of that.

* * * * * * *

He was told . . . that he was free to leave.
I think being told that he also would have
reason to believe that he didn't have to
continue with this, he could leave at
anytime. He didn't want to.

* * * * * * *

[I]n this case I don't think he was
compelled in any way by the officers to
agree to talk.

II. THE ALLEGED SEIZURE

In his first contention on appeal, Garrison argues that he

was seized by Leesburg Police Officers Amato and Rourke in the

community center's parking lot and this seizure continued until

his release at the police station. He avers that the police

lacked a reasonable, articulable suspicion or probable cause to

detain him and all evidence garnered as a result of the

detention should have been suppressed by the trial court.

"At a hearing on a defendant's motion to suppress, the

Commonwealth has the burden of proving that a warrantless search

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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).

A. The Encounter with Officers Amato and Rourke

The Fourth Amendment provides that "the 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. This protection does not

prohibit encounters between the police and citizens, but,

rather, proscribes limitations on them. Case law regarding the

Fourth Amendment "has placed police-citizen confrontations into

three categories." Iglesias v. Commonwealth, 7 Va. App. 93, 99,

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372 S.E.2d 170, 173 (1988). "First, there are communications

between police officers and citizens that are consensual and,

therefore, do not implicate the fourth amendment." Id. Second,

"are brief investigatory stops" based upon an officer's

reasonable, articulable suspicion that criminal activity is

afoot, and third, are "highly intrusive, full-scale arrests"

based on probable cause. Id.

We find Garrison's initial encounter with Officers Amato

and Rourke to be a consensual exchange that was not prohibited

by the Fourth Amendment. A consensual encounter exists when "a

reasonable person would feel free 'to disregard the police and

go about his business.'" Reittinger v. Commonwealth, 260 Va.

232, 236, 532 S.E.2d 25, 27 (2000) (citation omitted). "Such

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) (citations omitted).

Garrison, who knew Leesburg police officers were interested

in talking to him, walked toward the officers in the car,

recognizing Officer Amato. The officers did not approach him.

In fact, Officer Rourke did not exit the car. Upon his

approach, Garrison was informed other officers wanted to speak

with him. Garrison was not told he had to remain in the parking

lot and wait for the other officers. The evidence supports the

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trial court's finding that Garrison acted voluntarily and that

the brief encounter with Officers Amato and Rourke was

consensual and did not implicate the Fourth Amendment. "Law

enforcement officers do not violate the Fourth Amendment merely

by approaching an individual on the street, identifying

themselves and asking the individual questions." Buck v.

Commonwealth, 20 Va. App. 298, 301-02, 456 S.E.2d 534, 535-36

(1995).

B. The Encounter with Officers Daly and Pebler

We also hold that Garrison's encounter with Officers Daly

and Pebler was consensual. "A consensual encounter occurs when

police officers approach persons in public places 'to ask them

questions,' provided 'a reasonable person would understand that

he or she could refuse to cooperate.'" Payne, 14 Va. App. at

88, 414 S.E.2d at 870 (quoting United States v. Wilson, 953 F.2d

116, 121 (4th Cir. 1991)). The trial court determined that a

reasonable person in Garrison's situation would have felt free

to refuse to cooperate and leave. Garrison was told that he

could leave at any time and that he could refuse to talk with

the officers. He voluntarily chose not to continue on his way,

but to get into the police car for the one-minute trip to the

police station, and to answer questions once there. Garrison

could have walked away or required the questions be asked in the

parking lot, but he elected not to do so. Garrison was not

coerced into these actions, and he was not treated in a

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confrontational manner. He was not subject to a pat-down nor

was he restrained or locked in. Garrison was asked, not told,

to participate in the interview. The officers even offered to

give Garrison a ride home when he was ready.

This case is distinguishable from McGee v. Commonwealth, 25

Va. App. 193, 487 S.E.2d 259 (1997), where we held the defendant

had been seized for Fourth Amendment purposes when three

uniformed police officers, who received an anonymous tip of drug

sales at a particular site, approached the defendant near the

given site and informed him that he matched the given

description of the drug dealer. The defendant was never

informed he could leave the officers' presence and he was

subjected to a frisk upon their arrival.

We held:

[W]hen 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 which the
officer is investigating, that fact is
significant among the "totality of
circumstances to determine whether a
reasonable person would feel free to leave."
When confronted with an accusation from
police, such as, "we know you are selling
drugs from this location, let us search
you," no reasonable person would feel free
to leave.

Id. at 200, 487 S.E.2d at 262.

However, we also noted "[w]hether a seizure occurs must be

determined by evaluating the facts of each case to determine

whether the manner in which the police identified the individual

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as a suspect conveys to the person that he or she . . . is not

free to leave." Id. at 200-01, 487 S.E.2d at 262-63.

McGee's holding that a seizure occurred was not solely

based on the statement to the defendant that he was suspected of

presently dealing drugs, but on the totality of the

circumstances which included the fact that the three uniformed

police officers, who suddenly approached the defendant,

did not by their words or actions suggest
that the defendant was free to leave. The
unmistakable message conveyed to the
defendant was that the officers had reason
to suspect that he was [presently] selling
drugs and that they were detaining him to
investigate his [current] activity. A
reasonable person would have believed . . .
that he or she was being detained and was
required to [submit to the officers].

Id. at 201, 487 S.E.2d at 263.

Circumstances of a similar nature are not present in the

case at bar. The police officers asked Garrison if he would

stop and talk about an investigation of his possible involvement

and if he would talk with them at the police station instead of

in the parking lot. The police officers made no demand. They

specifically informed Garrison that he did not have to speak

with them at that time and could leave. Further, if he did

choose to speak with them, he was free to leave at any time

during the discussion. Under the totality of the circumstances

in this case, the encounter between the police officers and

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Garrison was consensual and, thereby, did not implicate the

Fourth Amendment.

C. The Police Station Interview

The fact that the interview took place in a police station

does not mandate a finding that the encounter was

non-consensual. "Custody does not result merely because an

individual is questioned in a 'coercive environment,' or is the

'focus' of a criminal investigation." Davis v. Allsbrook, 778

F.2d 168, 171 (4th Cir. 1985) (citations omitted). "A person's

voluntary appearance at a police station, where he is

immediately advised that he is not under arrest and from which

he leaves 'without hindrance' [sic] at the end of an interview,

indicates that he is not in custody 'or otherwise deprived of

his freedom of action in any significant way.'" Hughes v.

Commonwealth, 16 Va. App. 576, 592, 431 S.E.2d 906, 916 (1993)

(quoting Oregon v. Mathiason, 429 U.S. 492, 494 (1977)), aff'd

en banc, 18 Va. App. 510, 446 S.E.2d 451 (1994).

We find no credible evidence to support Garrison's

contention that the consensual interview changed to a custodial

interrogation. He was free to leave at any time and voluntarily

chose not to do so. Because Garrison was not subject to a

coercive, custodial interrogation, he was not entitled to

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Miranda warnings, 1 and the trial court properly admitted his

statements.

III. ALLEGED ERROR IN CONDUCTING THE SUPPRESSION HEARING

Garrison alleges the trial court erred by excluding any

testimony from him as to whether he felt free to leave during

the parking lot encounter with the police officers. He also

avers that the trial court erred in allowing hearsay testimony

regarding his whereabouts on July 8, 1999. Upon our review of

the record, we find no error.

A. The Exclusion of Garrison's Subjective Belief

Garrison states his "subjective belief" is relevant,

relying on Hughes, 16 Va. App. 576, 431 S.E.2d 906. Reliance on

Hughes, however, is misplaced.

Garrison relies on Hughes for the proposition that "[a]

'defendant's subjective belief regarding his freedom to leave'

is relevant to determining whether a custodial interrogation had

occurred." 16 Va. App. at 592, 431 S.E.2d at 917 (quoting

United States v. Charles, 738 F.2d 686, 693 n.7 (5th Cir.

1984)). However, following the Charles decision, the Supreme

Court of the United States stated that "the only relevant

inquiry is how a reasonable man in the suspect's position would

have understood his situation" and the "objective, reasonable

1
Miranda warnings are required only when an individual is
in custody and subjected to interrogation. See Blain v.
Commonwealth, 7 Va. App. 10, 13, 371 S.E.2d 838, 840 (1988).

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man test is appropriate because, unlike a subjective test, it

'is not solely dependent either on the self-serving declarations

of the police officers or the defendant.'" Berkemer v. McCarty,

468 U.S. 420, 442 (1984) (footnote omitted). "[T]he initial

determination of custody depends on the objective circumstances

of the interrogation, not on the subjective views harbored by

either the interrogating officers or the person being

questioned." Stansbury v. California, 511 U.S. 318, 323 (1994).

The Fifth Circuit acknowledged that its decision in Charles

was abrogated by the United States Supreme Court's subsequent

adoption of the objective, reasonable man standard. See United

States v. Bengivenga, 845 F.2d 593 (1988). We also believe that

the United States Supreme Court's adoption of the objective,

reasonable man standard prohibits us from considering the

suspect's subjective belief or state of mind in determining

whether a custodial interrogation occurred. Thus, the trial

court did not err in refusing to allow Garrison to testify as to

his subjective belief that he was in custody.

B. The Inclusion of a Statement on
Garrison's Whereabouts

Finally, Garrison challenges the admission of certain

testimony by the police officer regarding a statement from

Garrison's co-worker as to Garrison's whereabouts on July 8,

1999, when the officers wished to question him. Garrison argues

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the statement should have been excluded as hearsay. We

disagree.

The statement was admitted by the trial court, not as proof

of the truth of the matter asserted, but, rather, as an

explanation as to what caused the officers to issue a lookout

for Garrison. In Upchurch v. Commonwealth, 220 Va. 408, 256

S.E.2d 506 (1979), the Virginia Supreme Court held that a

detective's testimony that he responded to a radio report of a

"burglary in progress" was not hearsay because the "hearsay rule

does not operate to exclude evidence of a statement . . .

offered for the mere purpose of explaining or throwing light on

the conduct of the person to whom it was made." Id. at 410, 258

S.E.2d at 508. The trial court did not err in allowing the

officers to describe the statement.

The rulings of the trial court were proper and supported by

the evidence. Garrison's convictions are hereby affirmed.

Affirmed.

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