COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata
Argued at Richmond, Virginia
VERNON GREGORY PIGGOTT, S/K/A
VERNON PIGGOT
OPINION BY
v. Record No. 2250-99-2 JUDGE JERE M. H. WILLIS, JR.
DECEMBER 5, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
Robert G. O'Hara, Jr., Judge
Anthony N. Sylvester (Anthony N. Sylvester,
P.C., on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Vernon Gregory Piggott (appellant) was convicted in a bench
trial of possession of cocaine in violation of Code § 18.2-250.
On appeal, he argues the trial court erred in denying his motion
to suppress the evidence obtained in violation of his Fourth
Amendment rights. We reverse Piggott's conviction and remand
the case to the trial court for further proceedings, if the
Commonwealth be so advised.
I. BACKGROUND
On appeal from a trial court's ruling on a suppression
motion, we view the evidence in the light most favorable to the
party prevailing below, in this case the Commonwealth. See
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). However, "'[u]ltimate questions of reasonable
suspicion and probable cause . . . are reviewed de novo on
appeal.'" McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United
States, 517 U.S. 690, 691 (1996)). Similarly, we review de novo
whether a seizure occurred. See id. at 198, 487 S.E.2d at 261.
On November 19, 1998, Piggott was a passenger in a car
driven by Roy Dean Wright. Detective Michael S. Langford
stopped the car because it was proceeding the wrong way on a
one-way street. Detective Langford requested Wright's driver's
license, ran it through his computer, and released Wright with a
verbal warning.
Detective Langford obtained from Wright permission to
search his car and person. Detective Langford found no weapon
or contraband on Wright's person. He then identified himself to
Piggott and asked Piggott to exit the car. Detective Langford's
search of the car produced no weapon or contraband. Upon
completion of the search of the car, Detective Langford asked
Piggott for identification, which Piggott produced. 1
Detective Langford ran a warrant check on Piggott, which he
testified took a "few" minutes. After discovering that Piggott
1
The record does not disclose the precise nature of
Piggott's identification. However, in a question, counsel
referred to it as "his license." Detective Langford used the
identification to access a central records bank. From this, we
conclude that the identification was in some official form.
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had two outstanding warrants, Detective Langford arrested him.
On the way to jail, Piggott admitted he had cocaine concealed in
his shoe. At the jail, Detective Langford searched Piggott and
found three chunks of cocaine in a plastic bag inside his shoe.
He charged Piggott with possession of cocaine.
Prior to trial, Piggott moved to suppress the cocaine found
on his person. He argued that discovery of the cocaine derived
from an unlawful seizure of his person. The trial court denied
the motion, ruling that the encounter between Piggott and
Detective Langford was consensual. In a bench trial, the trial
court convicted Piggott of possessing cocaine.
II. THE SEIZURE
"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, 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) (citation omitted).
"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 v. Commonwealth, 14 Va. App.
86, 88, 414 S.E.2d 869, 870 (1992) (citations omitted). "As
long as the person to whom questions are put remains free to
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disregard the questions and walk away, there has been no
intrusion upon that person's liberty or privacy as would under
the Constitution require some particularized and objective
justification." United States v. Mendenhall, 446 U.S. 544, 554
(1979).
An encounter is not consensual "if, in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave." Id. The
"principle embodied by the phrase 'free to leave' means the
ability to ignore the police and to walk away from them," to
"'feel free to decline the officers' requests or otherwise
terminate the encounter.'" United States v. Wilson, 953 F.2d
116, 122 (4th Cir. 1991) (quoting Florida v. Bostick, 501 U.S.
429, 436 (1991)). "Fourth Amendment scrutiny is triggered,
however, the moment an encounter 'loses its consensual nature.'"
Id. (quoting Bostick, 501 U.S. at 434).
Detective Langford's request for Piggott's identification
initiated a consensual encounter and implicated no Fourth
Amendment interest. However, the consensual aspect of the
encounter ceased when Detective Langford retained Piggott's
identification while he ran a warrant check. A reasonable
person in Piggott's circumstances would not have believed that
he could terminate the encounter and walk away. By retaining
Piggott's identification, Detective Langford implicitly
commanded Piggott to stay. See Hodnett v. Commonwealth, 32 Va.
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App. 684, 691-92, 530 S.E.2d 433, 436 (2000). Thus, for Fourth
Amendment purposes, Piggott was then "seized" by Detective
Langford. See Terry v. Ohio, 392 U.S. 1, 16 (1968). "In order
to justify such a seizure, an officer must have a 'reasonable
and articulable suspicion of criminal activity on the part of
the defendant.'" Hatcher v. Commonwealth, 14 Va. App. 487, 490,
419 S.E.2d 256, 258 (1992) (quoting Commonwealth v. Holloway, 9
Va. App. 11, 15, 384 S.E.2d 99, 101 (1989)).
The circumstances in this case gave Detective Langford no
objectively reasonable basis for suspecting that Piggott was
engaged in criminal activity. Detective Langford had no
information to such effect, nor had he observed any criminal
behavior. Piggott cooperated and willingly gave his correct
identification.
Because Detective Langford's encounter with Piggott ceased
to be consensual, and because the circumstances provided no
lawful basis for further detention, Piggott was seized in
violation of his Fourth Amendment rights. The cocaine was found
on his person due to that unlawful seizure and should have been
suppressed. Accordingly, we reverse the judgment of the trial
court, reverse Piggott's conviction, and remand the case to the
trial court for further proceedings if the Commonwealth be so
advised.
Reversed and remanded.
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