Dickerson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia

VINCENT DICKERSON
OPINION BY
v. Record No. 1120-00-3 JUDGE ROSEMARIE ANNUNZIATA
MARCH 27, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
B.A. Davis, III, Judge Designate

Philip G. Gardner (Gardner, Gardner, Barrow &
Sharpe, on brief), for appellant.

Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Appellant, Vincent Dickerson, appeals his conviction for

possession of cocaine with the intent to distribute. He contends

the trial court erroneously denied his motion to suppress

evidence that was obtained in violation of his Fourth Amendment

rights. For the following reasons, we affirm.

BACKGROUND

On August 20, 1999, a Danville Life Saving Crew truck was

headed west on Highway 58 between Danville and Martinsville when

it encountered a person in a black Ford Escort who would not

yield the right-of-way to the ambulance. Deputy Parker, a law

enforcement official with the Pittsylvania Sheriff's Department,

was on routine uniformed patrol when he received information from

his dispatcher reporting the incident. Deputy Parker also

received a description of the offending vehicle and its license
plate number. When Parker saw the ambulance coming in his

direction, he pulled his police car onto the highway from a

turnaround where he was positioned. He passed the ambulance and

got behind the vehicle that matched the description given to him

by the dispatcher. The vehicle was in the left lane traveling at

a high rate of speed in front of the ambulance. By using his

speedometer, Parker determined the vehicle was traveling at about

sixty-five miles per hour in a posted fifty-five

mile-per-hour zone.
Parker activated his emergency lights and siren to signal

the driver to stop. When the driver complied, Parker approached

the car and found Dickerson in the driver's seat. No other

occupants were in the car. Parker detected the odor of alcohol

on Dickerson's person and asked him if he had been drinking.

Dickerson responded that he had consumed one beer. He admitted

to Parker that he was "going sixty-five miles an hour."

Dickerson exited the vehicle at Parker's request and agreed

to perform field sobriety tests, all of which he satisfactorily

completed. As a result, Parker decided not to arrest Dickerson

for driving under the influence of alcohol and informed Dickerson

of that decision. He added, however, that Dickerson might get a

summons from the ambulance driver for failing to

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yield to an emergency vehicle. Parker then told Dickerson he was

"free to go."

As Dickerson was getting back into his vehicle, Parker asked

him if the car contained anything that Parker "should know

about," such as "dope, marijuana, roaches in the ashtray,

something, anything like that." When Dickerson responded in the

negative, Parker asked him if he smoked marijuana. Dickerson

admitted he did, qualifying his answer by stating, "not while he

was driving." Dickerson then added that "there [were] some

roaches in the ashtray."
After Dickerson's admission, Parker asked if he could look

inside Dickerson's car. Although Dickerson said, "no," to the

request, Dickerson reached into the vehicle, pulled out the

ashtray, and handed it to the deputy. Parker saw "numerous hand

rolled cigarette roaches" in the ashtray, and Dickerson admitted

they were marijuana cigarettes.

Parker again asked Dickerson for permission to look inside

the vehicle and Dickerson again responded, "no." However, Parker

began to search the vehicle and found inside the passenger

compartment three plastic bags of an "off-white rock substance"

and one plastic box containing a scale. Parker asked another

deputy, Deputy Morrison, who had earlier arrived on the scene as

back-up, to unlock the truck and search it. Morrison found in

the trunk seven small plastic bags of an off-white

rock-like substance, one plastic bag containing a white powder

substance, and another set of scales. Parker placed Dickerson

under arrest.

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 Dickerson filed a motion to suppress the evidence, which

the trial court denied. He subsequently pled guilty to the

offense, reserving the right to appeal the trial court's ruling

on the suppression motion.

ANALYSIS

Dickerson contends the encounter with the officer following

the traffic stop was not consensual and that because the seizure

was not based on a reasonable, articulable suspicion of criminal

activity on his part, he was seized in violation of his Fourth

Amendment rights. The Commonwealth contends the encounter was

consensual and that during this consensual encounter, the officer

developed probable cause to arrest Dickerson and probable cause

to search his vehicle. We agree with the Commonwealth and affirm

the trial court's ruling on the suppression motion.
When reviewing on appeal a trial court's ruling denying a

motion to suppress evidence, we consider the evidence and all

reasonable inferences which may be drawn from the evidence in the

light most favorable to the Commonwealth. Greene v.
Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994).

The burden on appeal to show "that the denial of [the] motion to

suppress constitute[d] reversible error" rests with the

defendant. Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437

S.E.2d 232, 233 (1993).

We review determinations of reasonable suspicion and

probable cause de novo on appeal. Ornelas v. United States, 517

U.S. 690, 699 (1996); McGee v. Commonwealth, 25 Va. App. 193,

197, 487 S.E.2d 259, 261 (1997). "Similarly, the question

whether a person has been seized in violation of the Fourth

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Amendment is reviewed de novo on appeal." Reittinger v.

Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000).

Although we apply de novo our own legal analysis of whether a

seizure occurred, we are "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." McGee, 25 Va. App. at 198, 487 S.E.2d at 261.

The record shows that Deputy Parker lawfully stopped

Dickerson for a traffic violation. Dickerson concedes the

initial stop was lawful. Whren v. United States, 517 U.S. 806,

810 (1996) (police may stop a vehicle where they have probable

cause to believe a traffic violation has occurred). However,

when an officer makes a lawful traffic stop, the scope of the

temporary detention may not exceed the purpose of the stop.

Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion)

("The scope of the detention must be carefully tailored to its

underlying justification."). Therefore, absent reasonable,

articulable suspicion, Deputy Parker could not lawfully extend

the initial stop and continue to detain Dickerson in order to ask

him questions concerning his possession and use of drugs. The

Commonwealth does not contend that Deputy Parker had reasonable

suspicion to detain Dickerson when he began to question him

concerning his use and possession of drugs; rather, it contends

Deputy Parker and Dickerson were engaged in a consensual

encounter at the time the questioning occurred.

Dickerson argues that once the traffic stop was completed,

Parker's questions regarding the presence of drugs in the car

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constituted an illegal seizure. We disagree and find that the

encounter was consensual at the time of the questioning and that

probable cause to arrest Dickerson and search his vehicle

developed as a result of the consensual encounter that followed

the initial traffic stop.

A voluntary police-citizen encounter becomes a seizure for

Fourth Amendment purposes "[o]nly when the officer, by means of

physical force or show of authority, has in some way restrained

the liberty of a citizen." Florida v. Bostick, 501 U.S. 429, 434

(1991). "So long as a reasonable person would feel free 'to

disregard the police and go about his business,' the encounter is

consensual, and no reasonable suspicion is required." Id.

(citation omitted). "[E]ven when officers have no basis for

suspecting a particular individual, they may generally ask

questions of that individual . . . and request consent to

search . . . as long as the police do not convey a message that

compliance with their requests is required." Id. at 434-35, 437.

In determining whether the encounter was consensual, we must

"consider all the circumstances surrounding the encounter to

determine whether the police conduct would have communicated to a

reasonable person that the person was not free to decline the

officers' requests or otherwise terminate the encounter." Id. at

439.

In determining whether a reasonable person would feel he or

she was not free to terminate an encounter with the police,

several jurisdictions, including Virginia, have utilized a set of

factors first articulated by Justice Stewart in his opinion in

United States v. Mendenhall, 446 U.S. 544 (1980) (opinion of

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Stewart, J.). See United States v. Galvan-Muro, 141 F.3d 904,

906 (8th Cir. 1998); United States v. Turner, 928 F.2d 956, 959

(10th Cir. 1991); Parker v. Commonwealth, 255 Va. 96, 101-02, 496

S.E.2d 47, 50 (1998); Baldwin v. Commonwealth, 243 Va. 191, 196,

413 S.E.2d 647, 648 (1992). Those factors 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."
Mendenhall, 446 U.S. at 554 (opinion of Stewart, J.).

The record shows that after the lawful traffic stop was

completed, Dickerson was told he was free to leave before any of

the challenged questioning ensued. Mere questioning alone, after

Dickerson was told he was free to go, is not sufficient to

constitute restraint for Fourth Amendment purposes. See United

States v. Sullivan, 138 F.3d 126 (4th Cir. 1997); United States

v. Lattimore, 87 F.3d 647 (4th Cir. 1996); United States v.

Thompson, 106 F.3d 794 (7th Cir. 1997); Galvan-Muro, 141 F.3d

904; United States v. White, 81 F.3d 775 (8th Cir. 1996); United
States v. Anderson, 114 F.3d 1059 (10th Cir. 1997); United States

v. Elliott, 107 F.3d 810 (10th Cir. 1997); United States v.

Hernandez, 93 F.3d 1493 (10th Cir. 1996); United States v.

Sandoval, 29 F.3d 537 (10th Cir. 1994); United States v.

McKneely, 6 F.3d 1447 (10th Cir. 1993); Turner, 928 F.2d 956;
United States v. Werking, 915 F.2d 1404 (10th Cir. 1990).

In this case, after Deputy Parker told Dickerson he was free

to leave, Dickerson returned to his car and began to get back

into the vehicle, indicating that Dickerson believed he was free

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to leave at that point. See Hernandez, 93 F.3d at 1499. Nothing

occurred after that point that would make a reasonable person

feel he or she was not still free to leave. Deputies Parker and

Morrison did not by means of force or show of authority restrain

Dickerson or indicate that he was required to comply with their

requests. While two officers were on the scene, only one was

interacting with Dickerson. See White, 81 F.3d at 779 (other

officers "were little more than passive observers prior to

commencement of the search"). Neither officer acted in a

threatening manner either by their language or the tone of voice

used. See Galvan-Muro, 141 F.3d at 906 (exchange between officer

and defendant was "cooperative and conversational"); White, 81

F.3d at 779 ("tone of the entire exchange was cooperative").

Neither officer physically touched Dickerson, and neither

displayed a weapon. Galvan-Muro, 141 F.3d at 906; White, 81 F.3d

at 779. 1 Finally, the evidence establishes that neither officer

1
Contrary to Dickerson's assertions on appeal, the mere
presence of a holstered weapon is not sufficient to convert a
consensual encounter into an illegal seizure. See Bostick, 501
U.S. at 432, 434, 437 (in holding that "a seizure does not occur
simply because a police officer approaches an individual and
asks a few questions," the Court noted that although the officer
in that case was carrying a holstered weapon, the officer did
not point the gun at the defendant or use the gun in a
threatening manner).
In addition, Dickerson's reliance on Parker, 255 Va. 96,
496 S.E.2d 47, for the proposition that the fact that an officer
is wearing a uniform and a badge, alone, constitutes a show of
authority, is misplaced. In Parker, the Virginia Supreme Court,
in finding the defendant had been seized, specifically relied on
the fact that after the defendant attempted to evade the police,
the officer "drove his police cruiser forty feet off of the
street and onto private property and stopped his police cruiser
at the location where the defendant was standing," and not on
the fact that the officer, like most patrol officers, was
wearing a badge and a uniform. Id. at 103, 496 S.E.2d at 51.

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blocked nor restricted Dickerson's movement in any way.

Dickerson was told he was

free to leave and was allowed to return to his vehicle, which had

the keys in the ignition. Therefore, because the police neither

utilized force nor made a show of authority which would have led

a reasonable person to believe he or she was not free

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to go, the encounter between Dickerson and the police was

consensual.

This case may be distinguished from Reittinger, 260 Va. 232,

532 S.E.2d 25, where the Virginia Supreme Court found that the

defendant had been unlawfully seized following a traffic stop.

In Reittinger, the police pulled the defendant over for operating

a vehicle with only one headlight. One officer approached the

vehicle and stood next to the driver's window, and a second

officer stood next to the front passenger side window. The first

officer asked the defendant for his license and registration.

After the officer gave the defendant a verbal warning for the

headlight offense, the officer told the defendant he was "free to

go." Immediately thereafter, without moving from the driver's

side window, the officer asked the defendant if he had any

illegal drugs or weapons in the car. The defendant said, "no,"

and the officer asked permission to search the vehicle. The

defendant did not respond but, rather, consulted with the

passengers in the vehicle. The officer asked to search the

vehicle three times without response from the defendant before

the defendant exited the vehicle. When he exited the vehicle,

the officer saw what looked like a weapon in the defendant's

pocket and ordered him to remove it.
The Supreme Court held that the defendant had been

unlawfully seized. Id. at 237, 532 S.E.2d at 28. The Court

found that, "[a]lthough Deputy Bolen had told Reittinger that he

was free to go, we think that the events that transpired

immediately thereafter would suggest to a reasonable person that

just the opposite was the case." Id. In deciding Reittinger

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remained under the restraint of the traffic stop, the Court

focused on the fact that the officers still flanked the vehicle

even after the defendant was told he was free to go and on the

repeated requests by the officer to search the vehicle. Id. at

236-37, 532 S.E.2d at 27; see also Hernandez, 93 F.3d at 1499

("'[A]ccusatory, persistent, and intrusive' questioning may turn

an otherwise voluntary encounter into a coercive one if it

conveys the message that compliance is required."). In the case

before us, there was a clear and definite break in the chain of

events, separating the stop from the subsequent consensual

encounter. Dickerson was told he was free to go and was allowed

to return to his vehicle. Deputy Parker's inquiry began as

Dickerson was entering his car, and the inquiry, unlike that in
Reittinger, did not, by its nature, implicate restraint or the

need to restrain. Parker's questions were limited to gathering

information that Dickerson was free to decline giving.

Furthermore, Parker was not persistent in seeking information

from Dickerson in the face of either resistance on his part or

under circumstances where his willingness to cooperate was not

made manifest. Rather, Dickerson responded to Parker's

questions regarding his use and possession of marijuana without

further prodding by the officers.

In the course of the consensual encounter, Parker obtained

information that gave rise to probable cause to arrest Dickerson

for a criminal offense and to search his car incident to that

arrest. In response to questions asked by Parker, Dickerson

admitted he smoked marijuana and had some "roaches" in the

ashtray of the car. This evidence constitutes probable cause for

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arrest. Taylor v. Commonwealth, 222 Va. 816, 821, 284 S.E.2d

833, 836 (1981) ("[P]robable cause exists when the facts and

circumstances within the officer's knowledge, and of which he has

reasonably trustworthy information, alone are sufficient to

warrant a person of reasonable caution to believe that an offense

has been or is being committed."); see also Parker, 255 Va. at

105, 496 S.E.2d at 53; Buck v. Commonwealth, 20 Va. App. 298,

304, 456 S.E.2d 534, 536-37 (1995) ("If an officer has reason to

believe that a person is committing a felony in his presence by

possessing contraband or a controlled substance, the officer has

probable cause to arrest the individual without a warrant.").

The search of the vehicle conducted incident to that arrest was

proper. New York v. Belton, 453 U.S. 454, 460 (1981) (police may

search passenger compartment of vehicle when they have made

lawful arrest of occupant); Rawlings v. Kentucky, 448 U.S. 98,

111 (1980) (search may proceed formal arrest so long as police

have probable cause to arrest at time of search). Furthermore,

although Deputy Parker did not immediately arrest Dickerson and

continued to ask for Dickerson's consent to search the vehicle,

the officer's subjective beliefs are irrelevant for purposes of

determining whether the officer actually had probable cause to

arrest. Poindexter v. Commonwealth, 16 Va. App. 730, 734, 432

S.E.2d 527, 529 (1993) (where officer has probable cause to

arrest suspect prior to conducting search, "officer's subjective

motivations are not dispositive"); Limonja v. Commonwealth, 8 Va.

App. 532, 537-38, 383 S.E.2d 476, 480 (1989) ("Police actions are

to be tested 'under a standard of objective reasonableness

without regard to the underlying intent or motivation of the

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officers involved.'" (quoting Scott v. United States, 436 U.S.

128, 138 (1978))).

Finally, the search of the vehicle, including the trunk, was

proper under the automobile exception to the warrant requirement.

Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (search of

vehicle proper when there is probable cause to believe it

contains contraband). Once the officers found drugs in the

passenger compartment, they had probable cause to extend their

search to the trunk of Dickerson's vehicle.
Because we find the encounter in this case was consensual

and that the officers had probable cause to arrest Dickerson and

to search his vehicle, we affirm the trial court's ruling denying

Dickerson's motion to suppress.

Affirmed.

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