Harris v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia

JAMES EDWARD HARRIS, JR.
OPINION BY
v. Record No. 0955-97-2 JUDGE LARRY G. ELDER
JUNE 16, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
James J. Ilijevich (Office of the Public
Defender, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

James E. Harris, Jr. (appellant) appeals his conviction of

possession of cocaine in violation of Code § 18.2-250. He

contends the trial court erred when it (1) denied his motion to

suppress evidence obtained during a traffic stop of a car in

which he was a passenger and (2) admitted into evidence a police

officer's testimony regarding out-of-court statements made by the

car's driver. For the reasons that follow, we affirm.

I.

FACTS

The evidence in the record, when viewed in the light most

favorable to the Commonwealth, proved that, on June 7, 1996,

Trooper John A. Jones of the State Police was patrolling

Interstate 95 in a marked police cruiser. At around 11:00 a.m.,

Trooper Jones noticed a vehicle that was both speeding and making
improper lane changes. The car was driven by Tony Maurice Horne,

and appellant was a passenger in the front seat. Trooper Jones

stopped the vehicle. As Trooper Jones exited his cruiser,

appellant opened the passenger side door and leaned over as if he

was reaching for something. Appellant then exited the vehicle,

appeared "nervous and jittery," and took "a step or two" in the

direction of Trooper Jones' cruiser. Trooper Jones, who by this

time had exited his cruiser, commanded appellant to stay where he

was and to show his hands. When appellant failed to comply with

the trooper's request, Trooper Jones drew his weapon, pointed it

at appellant, and again ordered him to show his hands. Appellant

continued moving around and did not display his hands to Trooper

Jones.
"Less than a minute" after Trooper Jones first ordered

appellant to show his hands, Trooper Scott Luddy arrived at the

scene. Shortly after Trooper Luddy's arrival, Trooper Jones put

away his weapon. Trooper Luddy approached appellant, told him to

"calm down," and escorted him to the side of the vehicle.

Trooper Luddy neither drew his weapon nor pushed appellant to the

side of the car. At this point, Trooper Jones walked over to the

driver side of the vehicle to investigate whether Horne, the

operator, was driving under the influence.

Trooper Luddy remained with appellant. Appellant appeared

agitated and continued shifting his weight back and forth and

moving his hands. At about this time, Trooper Paul D. Watts

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arrived at the scene and approached Trooper Luddy and appellant.

Appellant continued to fidget and appeared excited and

argumentative. Trooper Watts, who was qualified as an expert in

drug investigations and drug paraphernalia, testified that, based

on appellant's demeanor and behavior, he believed appellant was

"high on crack." According to Trooper Watts, appellant was

neither free to turn around nor to leave.

Appellant consented to Trooper Luddy's request to conduct a

pat-down of appellant's clothing. During the pat-down, Trooper

Luddy felt a "pipe-like device" in appellant's front pocket. One

of the troopers asked appellant to retrieve the object from his

pocket, and appellant complied. Appellant pulled out a corn cob

pipe and handed it to Trooper Luddy. Trooper Watts examined the

pipe and concluded it was a "crack pipe" because it contained

metal meshing typical of such pipes.
After examining the pipe, Trooper Watts asked appellant a

series of questions. Trooper Watts asked appellant if he used

the pipe to "smoke crack." Appellant replied that he did not

smoke crack cocaine. Trooper Watts then asked appellant where

his tobacco was located. Appellant replied that it was in the

car and offered to show it to the trooper. Appellant entered his

car and retrieved a pouch from the front seat. When appellant

opened the pouch, Trooper Watts saw a clear vial with a green cap

that is typically used to store illegal drugs. The vial was

"sitting right on top of the tobacco." Trooper Watts watched as

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appellant manipulated the tobacco in the pouch until it covered

the vial. Appellant then said, "this is my tobacco" and handed

the pouch to Trooper Watts. Trooper Watts recovered the vial

from the bottom of the pouch. The vial contained crack cocaine.

Within minutes of this discovery, at 11:20 a.m., Trooper Watts

arrested appellant and placed him in handcuffs. Six minutes

later, Trooper Watts first informed appellant of his Miranda

rights.
After a grand jury indicted appellant for possessing cocaine

in violation of Code § 18.2-250, appellant moved the trial court

to suppress the cocaine retrieved by Trooper Watts. Following a

hearing, the trial court made extensive factual findings and

denied appellant's motion.

At trial during the Commonwealth's case-in-chief, Trooper

Jones testified about an exchange he had with the driver, Horne,

after the trooper learned that crack cocaine had been retrieved

from appellant. Trooper Jones testified that he asked Horne what

he knew about "the crack in the car." Trooper Jones testified

that Horne made the following statement: "We went together to

buy it last night so we could give it to some whores for sex, but

we didn't use any." Trooper Jones also testified that Horne

stated that he and appellant intended to use the remaining amount

to "get a bitch when we get to the beach." Appellant objected to

the admission of Horne's out-of-court statements on the ground

they were inadmissible hearsay. The trial court overruled

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appellant's objection.

Following the presentation of the evidence, the trial court

found appellant guilty of possession of cocaine. During its

ruling from the bench, the trial court stated that it would not

consider Horne's out-of-court statements when determining

appellant's guilt. The trial court subsequently sentenced

appellant to serve three years in prison with all but ninety days

suspended.
II.

MOTION TO SUPPRESS

Appellant contends the trial court erred when it denied his

motion to suppress. First, appellant argues the trial court

erred when it concluded he was lawfully detained after he exited

the vehicle. Second, appellant argues Trooper Watts subjected

him to custodial interrogation before he was given his Miranda

warnings and that his subsequent responses to this unlawful

interrogation resulted in the discovery of the crack cocaine in

the tobacco pouch. We disagree with both contentions.

On appeal from a trial court's denial of a motion to

suppress, the burden is on the appellant to show that the trial

court's decision constituted reversible error. See Stanley v.

Commonwealth, 16 Va. App. 873, 874, 433 S.E.2d 512, 513 (1993).

We view the evidence in the light most favorable to the

prevailing party, granting to it all reasonable inferences fairly

deducible therefrom. See Commonwealth v. Grimstead, 12 Va. App.

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1066, 1067, 407 S.E.2d 47, 48 (1991). We review the trial

court's findings of historical fact only for "clear error," but

we review de novo the trial court's application of defined legal

standards to the particular facts of a case. See Shears v.

Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996);

see also Ornelas v. United States, 517 U.S. 690, 697 (1996).

A.

We first hold that appellant was not unlawfully detained by

the troopers after he exited the vehicle.
It is well established that "stopping an automobile and

detaining its occupants constitute a seizure within the meaning

[of the Fourth Amendment] even though the purpose of the stop is

limited and the resulting detention quite brief." Delaware v.

Prouse, 440 U.S. 648, 653 (1979) (citations omitted).

A police officer may stop the driver or

occupants of an automobile for investigatory

purposes if the officer has "a reasonable

articulable suspicion, based on objective

facts, that the individual is involved in

criminal activity."
Jones v. Commonwealth, 24 Va. App. 519, 522, 484 S.E.2d 125, 126

(1997) (citations omitted). Following a lawful traffic stop, the

Fourth Amendment permits the police to order the passengers to

get out of the car pending the completion of the stop. 1 See
1
At such traffic stops, the police may also order the driver
to exit the car. See Pennsylvania v. Mimms, 434 U.S. 106, 111

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Maryland v. Wilson, 117 S. Ct. 882, 886 (1997). Although the

United States Supreme Court has yet to address the issue, see id.

at 886 n.3, this Court has previously held that police officers

may also detain passengers beside an automobile until the

completion of a lawful traffic stop. See Hatcher v.

Commonwealth, 14 Va. App. 487, 491-92, 419 S.E.2d 256, 259

(1992). This authority over passengers at a lawful traffic stop

is deemed a "reasonable" seizure under the Fourth Amendment

because the "weighty [public] interest in officer safety" during

traffic stops, which "may be dangerous encounters," sufficiently

outweighs the minimal additional intrusion upon the private

interests of passengers, who "are already stopped by virtue of

the [lawful] stop of the vehicle." Wilson, 117 S. Ct. at 885-86;

see also Hatcher, 14 Va. App. at 490-92, 419 S.E.2d at 258-59.

When the troopers detained appellant, they acted reasonably,

as required by the Fourth Amendment, to protect their safety and

maintain the status quo during the course of the investigatory

traffic stop. Trooper Jones lawfully stopped the vehicle for

investigatory purposes after observing Horne drive the car in

excess of the speed limit and make improper lane changes. After

appellant exited the car and failed to comply with Trooper Jones'

order to show his hands, Trooper Jones drew his gun upon

appellant. This show of authority effectively prevented

appellant from leaving the scene of the traffic stop. Troopers
n.6 (1977).

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Luddy and Watts arrived within minutes and detained appellant at

the front of the car while Trooper Jones investigated Horne.

Although appellant was initially detained beside the car through

the display of a drawn weapon rather than, as in Hatcher, by a

verbal show of authority, appellant's detention by this means was

reasonable under the circumstances and lawful under the Fourth

Amendment. See Hatcher, 14 Va. App. at 489, 491-92, 419 S.E.2d

at 257, 259. During Terry stops, the police are permitted to use

methods of restraint that are reasonable under the circumstances.
See Thomas v. Commonwealth, 16 Va. App. 851, 857, 434 S.E.2d

319, 323 (1993), aff'd en banc, 18 Va. App. 454, 444 S.E.2d 275

(1994). Trooper Jones' display of his firearm for less than a

minute prior to the arrival of the other troopers was a

reasonable response to appellant's failure to show his hands

while moving in the trooper's direction.

B.

We also hold that Trooper Watts did not unlawfully

interrogate appellant because appellant was not "in custody"

prior to his formal arrest, which occurred after the crack
cocaine was discovered in the tobacco pouch.

In order to protect the privilege against compelled

self-incrimination guaranteed by the Fifth Amendment against the

"inherently compelling pressures" of custodial interrogation,

"which work to undermine the individual's will to resist and

. . . compel him to speak where he would otherwise not do so

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freely," the United States Supreme Court established the

procedural safeguards enumerated in Miranda v. Arizona, 384 U.S.

436, 467 (1966). "[I]f the police take a suspect into custody

and then ask him questions without informing him of the rights

enumerated [in Miranda], his responses cannot be introduced into

evidence to establish his guilt." Berkemer v. McCarty, 468 U.S.

420, 429 (1984). However, "police officers are not required to

administer Miranda warnings to everyone whom they question," and
Miranda warnings are not required when the interviewee's freedom

has not been so restricted as to render him or her "in custody."

Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
Fidelity to the doctrine announced in Miranda
requires that it be enforced strictly, but
only in those types of situations in which
the concerns that powered the decision are
implicated.

Berkemer, 468 U.S. at 437. Although a person temporarily

detained pursuant to an "ordinary traffic stop[]" is not "in

custody" for the purposes of Miranda, a detained motorist will be

entitled to the protections set forth in Miranda if he or she
"thereafter is subjected to treatment that renders him 'in

custody' for practical purposes." Id. at 440.

Whether a suspect is "in custody" under Miranda is

determined by the circumstances of each case, and "the ultimate

inquiry is simply whether there is a 'formal arrest or restraint

on freedom of movement' of the degree associated with formal

arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983)

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(citation omitted). The determination "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).

If a reasonable person in the suspect's position would have

understood that he or she was under arrest, then the police are

required to provide Miranda warnings before questioning. See

Cherry v. Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242,

244-45 (1992); see also Stansbury, 511 U.S. at 325 (indicating
that the objective circumstances "are relevant to the extent they

would affect how a reasonable person in the position of the

individual being questioned" would perceive his or her freedom to

leave). Among the circumstances to be considered when making the

determination of whether a suspect was "in custody" are (1) the

manner in which the individual is summoned by the police, (2) the

familiarity or neutrality of the surroundings, (3) the number of

officers present, (4) the degree of physical restraint, (5) the

duration and character of the interrogation, and (6) the extent

to which the officers' beliefs concerning the potential

culpability of the individual being questioned were manifested to
2
the individual. See Bosworth v. Commonwealth, 7 Va. App. 567,
2
This last factor encompasses the degree to which it was
conveyed to the suspect that he or she was the focus of a
criminal investigation and includes circumstances such as the
appearance of probable cause to arrest and the extent to which
the individual is confronted with evidence of guilt. In
Stansbury, the United States Supreme Court clarified the role
that this factor plays in the overall analysis of whether a
suspect was "in custody." The Court stated:

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572, 375 S.E.2d 756, 759 (1989); Lanier v. Commonwealth, 10 Va.

App. 541, 554, 394 S.E.2d 495, 503 (1990); see also Stansbury,

511 U.S. at 324-25. No single factor is dispositive of the

issue. See Wass v. Commonwealth, 5 Va. App. 27, 33, 359 S.E.2d

836, 839 (1987).

It is well settled, then, that a police
officer's subjective view that the individual
under questioning is a suspect, if
undisclosed, does not bear upon the question
whether the individual is in custody for
purposes of Miranda. The same principle
obtains if an officer's undisclosed
assessment is that the person questioned is
not a suspect. In either instance, one
cannot expect the person under interrogation
to probe the officer's innermost thoughts.
Save as they are communicated or otherwise
manifested to the person being questioned, an
officer's evolving but unarticulated
suspicions do not affect the objective
circumstances of an interrogation or
interview, and thus cannot affect the Miranda
custody inquiry.

An officer's knowledge or beliefs may
bear upon the custody issue if they are
conveyed, by word or deed, to the individual
being questioned. Those beliefs are relevant
only to the extent they would affect how a
reasonable person in the position of the
individual being questioned would gage the
breadth of his or her "'freedom of action.'"
Even a clear statement from an officer that
the person under interrogation is a prime
suspect is not, in itself, dispositive of the
custody issue, for some suspects are free to
come and go until the police decide to make
an arrest. The weight and pertinence of any
communications regarding the officer's degree
of suspicion will depend upon the facts and
circumstances of the particular case.
Stansbury, 511 U.S. at 324-25 (citations omitted).

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 Regarding the degree of physical restraint, "[t]here is no

'litmus-paper test for distinguishing . . . when a seizure

exceeds the bounds of an investigative stop.'" DePriest v.

Commonwealth, 4 Va. App. 577, 586, 359 S.E.2d 540, 544 (1987)

(quoting Florida v. Royer, 460 U.S. 491, 506 (1983)). Terry

stops are not distinguished from custodial interrogation by the

absence of any restriction upon the suspect's liberty. See

United States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995).

Indeed, a brief but complete restriction of a suspect's liberty

is valid under Terry, and the police are permitted to use methods
of restraint that are reasonable under the circumstances. See

Thomas, 16 Va. App. at 857, 434 S.E.2d at 323.
[D]rawing weapons, handcuffing a suspect,
placing a suspect in a patrol car for
questioning, or using or threatening to use
force does not necessarily elevate a lawful
stop into a custodial arrest for Miranda
purposes.

Leshuk, 65 F.3d at 1109-10. Rather, "Terry stops differ from

custodial interrogation in that they must last no longer than

necessary to verify or dispel the officer's suspicion." Id. at

1109.

The record indicates that appellant's encounter with the

troopers occurred on the side of a busy interstate highway in

broad daylight and lasted about twenty minutes. Trooper Jones

had his weapon drawn upon appellant for "less than a minute"

before Trooper Luddy arrived and escorted appellant to the side

of the car. Appellant waited with Trooper Luddy for the next

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several minutes while Trooper Jones investigated Horne.

Appellant was not handcuffed, although he was ordered to place

his hands on the hood of the car, and was not free to leave.

Trooper Luddy did not ask appellant any questions. After Trooper

Watts arrived, appellant consented to a pat-down search of his

clothing, voluntarily removed the pipe from his pocket, and gave

it to the troopers. At this point, a reasonable person in

appellant's position would have believed he or she was the focus

of Trooper Watts' investigation to confirm or dispel his

suspicions that the person so-detained was engaged in criminal

activity involving illegal drugs.
The record indicates that Trooper Watts' questioning lasted

no longer than a few minutes. Until Trooper Watts retrieved the

vial of crack cocaine from the tobacco pouch at the conclusion of

the questioning, appellant was not confronted with any evidence,

with the possible exception of the corn cob pipe he voluntarily

displayed, indicating that he was guilty of possessing crack

cocaine. Moreover, it was apparent that probable cause did not

exist to arrest appellant until after Trooper Watts retrieved the

vial. Significantly, appellant was formally arrested and

informed of his Miranda rights within minutes after Trooper
Watts' discovery of the crack cocaine. With the exception of

Trooper Jones' service revolver, no other weapons were drawn

prior to the time appellant received his Miranda warnings, and

appellant was not told he was under arrest prior to Trooper

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Watts' questioning.

We conclude that appellant was not entitled to Miranda

warnings prior to the questioning by Trooper Watts that led to

the discovery of the cocaine. At the time of Trooper Watts'

questioning, appellant's detention had been transformed from one

whose purpose was to protect officer safety and maintain the

status quo during a traffic stop to a Terry stop whose purpose

was to investigate appellant for suspected drug-related criminal

activity. However, the means employed by the troopers to detain

appellant were reasonable under the circumstances, and the

entirety of the brief exchange between appellant and Trooper

Watts occurred within the time "necessary to verify or dispel the

officer's suspicion." Leshuk, 65 F.3d at 1109. The nature of

appellant's public encounter with the troopers in broad daylight

was not so "police-dominated" that a reasonable person would have

felt "completely at the mercy of the police." Berkemer, 468 U.S.

at 438-39. Moreover, the existence of minimal inculpatory

evidence to confirm Trooper Watts' suspicions during the entirety

of the questioning fostered a reasonable expectation that the

detention would be temporary and brief. Under these

circumstances, we cannot say a reasonable person in appellant's

position would have believed that his encounter with the troopers

had escalated from an investigative detention to an arrest during

the time Trooper Watts questioned appellant.

III.

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 ADMISSION OF HORNE'S OUT-OF-COURT STATEMENTS

Appellant next contends the trial court erred when it

admitted the out-of-court statements of Horne. We disagree.

Assuming the trial court erred when it admitted Horne's

statements, we hold that this error was harmless. A

non-constitutional error, such as the erroneous admission of

evidence, is harmless "when it plainly appears from the record

and the evidence given at the trial that the parties have had a

fair trial on the merits and substantial justice has been

reached." Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407

S.E.2d 910, 911 (1991) (quoting Code § 8.01-678).
[A] criminal conviction must be reversed
unless "it plainly appears from the record
and the evidence given at the trial that" the
error did not affect the verdict. An error
does not affect a verdict if a reviewing
court can conclude, without usurping the
[trial court's] fact finding function, that,
had the error not occurred, the verdict would
have been the same.

Id.
In this case, it plainly appears from the record that the

admission of Horne's out-of-court statements did not affect the

trial court's determination of appellant's guilt or his sentence.

During its ruling from the bench regarding appellant's guilt,

the trial court stated:
I let that [Horne's statements] in. . . .
But I'm going to ignore that, I'm going to
set that aside and not take that into
consideration.

It then concluded that appellant's knowledge of the cocaine in

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the tobacco bag could be inferred from evidence independent of

Horne's statements, and this finding is supported by the record.
A judge, unlike a juror, is uniquely suited
by training, experience and judicial
discipline to disregard potentially
prejudicial comments and to separate, during
the mental process of adjudication, the
admissible from the inadmissible, even though
he has heard both.

Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157

(1981). Although we will not assume a judge has disregarded

inadmissible evidence when the judge's rulings indicate

otherwise, see Wilson v. Commonwealth, 16 Va. App. 213, 223, 429
S.E.2d 229, 235-36, aff'd en banc, 17 Va. App. 248, 436 S.E.2d

193 (1993), the trial court's comments indicate that, despite its

initial ruling to admit Horne's hearsay statements, it

disregarded this evidence.

For the foregoing reasons, we affirm the conviction of

possession of cocaine in violation of Code § 18.2-250.

Affirmed.

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Benton, J., dissenting.

I would hold that the scope of the detention exceeded a

Terry stop and that the ensuing questioning constituted custodial

interrogation for Miranda purposes. A reasonable person, who was

detained in the manner James E. Harris, Jr., was detained, would

have believed he or she was "in custody" prior to the time the

officers questioned Harris about the corn cob pipe found in his

pocket.
"[S]topping an automobile and detaining its occupants

constitutes a 'seizure' within the meaning of [the Fourth

Amendment] even though the purpose of the stop is limited and the

resulting detention quite brief." Delaware v. Prouse, 440 U.S.

648, 653 (1979). A person "who has been detained pursuant to a

traffic stop [and is] thereafter . . . subjected to treatment

that renders him 'in custody' for practical purposes, [is]

entitled to the full panoply of protections prescribed by

Miranda." Berkemer v. McCarty, 468 U.S. 420, 440 (1984). The

seizure becomes custodial for purposes of Miranda whenever the
person has his or her "freedom of action . . . curtailed to a

'degree associated with formal arrest.'" Id. (citation omitted).

Furthermore, whether a person is "in custody" within the

meaning of Miranda turns upon "how a reasonable [person] in the

suspect's position would have understood his situation." Id. at

442. "Thus, a suspect is 'in custody' when the objective

circumstances would lead a reasonable person to believe he was

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under arrest, thereby subjecting him or her to pressure impairing

the free exercise of the privilege against self-incrimination."

Cherry v. Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242, 245

(1992). "[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).
Among the factors that must be considered are
whether a suspect is questioned in familiar
or neutral surroundings, the number of police
officers present, the degree of physical
restraint, and the duration and character of
the interrogation. Whether or when probable
cause to arrest exists and when the suspect
becomes the focus of the investigation are
relevant facts to consider. "[T]he language
used by the officer to summon the individual,
the extent to which he or she is confronted
with evidence of guilt, the physical
surroundings of the interrogation, the
duration of the detention and the degree of
pressure applied to detain the individual"
may be significant factors as well.

Wass v. Commonwealth, 5 Va. App. 27, 32-33, 359 S.E.2d 836, 839

(1987) (citations omitted).

The traffic stop occurred at 11:00 a.m. on a heavily

travelled interstate highway. When the driver stopped the

automobile, Trooper Jones exited his vehicle and yelled, "Let me

see your hands." Harris opened the passenger side door, leaned

down and bent forward. According to Trooper Jones, Harris

appeared to be reaching under the seat, reaching outside the

automobile, or reaching to drop something at the side of the

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automobile. Later, Trooper Jones found a paper cup of beer on

the ground next to the passenger side door. Harris admitted the

beer was his.

Because Trooper Jones could not see Harris' hands, Trooper

Jones drew his weapon. He pointed it in Harris' direction and

repeatedly yelled, "let me see your hands." The evidence proved

that the noise from the highway made hearing difficult. Harris

then exited the automobile and took "maybe one or two steps"

toward Trooper Jones. Trooper Jones testified that Harris was

"not [acting] in a threatening manner, by any means. He just

seemed very agitated in what was happening." The driver complied

with Trooper Jones' order by sticking his hands out the driver's

side window.
Trooper Luddy arrived and approached the automobile. As

Trooper Luddy approached, Trooper Jones holstered his weapon.

Trooper Luddy testified that he placed his hand on Harris' arm or

shoulder and escorted Harris to the front of the automobile.

However, Trooper Jones said Trooper Luddy "actually took Mr.

Harris from behind and pushed him toward the [automobile]." Both

agreed that Harris offered no physical resistance.

Trooper Luddy told Harris to place his hands on the hood of

the automobile. When Harris placed his hands on the hood of the

automobile, Trooper Luddy "had a foot probably on the inside of

[Harris'] foot touching his shoe and a hand, either on [Harris']

shoulder or on his back." Harris repeatedly removed his hands

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from the hood and complained to Trooper Luddy that the hood of

the automobile was "hot." Although the testimony established

that the stop occurred on a bright sunny day in June after the

automobile had been travelling on the interstate highway, Trooper

Luddy ordered Harris to keep his hands on the hot hood.

Trooper Watts then arrived and approached Trooper Luddy and

Harris. When Trooper Watts arrived, Harris was leaning against

the automobile with his hands on the hood. Trooper Watts

testified that Trooper Luddy was repeatedly telling Harris to

stand still, keep his hands on the automobile, and not to move.

Trooper Watts said he told Harris the same things because Harris

seemed excited and argumentative. Trooper Watts also was

unresponsive to Harris' complaint that the hood of the automobile

was hot. Watts did not know Trooper Jones had aimed his weapon

at Harris. Trooper Watts testified that Harris was not free to

turn around or to leave.
The totality of the objective circumstances in this case

would lead a reasonable person in Harris' position to believe he

or she was under arrest. See Cherry, 14 Va. App. at 139, 415

S.E.2d at 245. Harris was "subjected to restraints comparable to

those associated with a formal arrest." Berkemer, 468 U.S. at

441. The seizure involved three police officers. The first

officer drew his weapon on Harris. The second officer physically

grabbed Harris, forced him to lean with his hands on the heated

hood of the automobile, and restrained Harris in that position by

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his commands and force. The third officer also participated in

this restraint, repeating the instructions that Harris was to

stand still and remain facing the automobile with his hands on

the hood. Moreover, the stop in this case was not of a short

duration but lasted approximately twenty minutes. See Berkemer,

468 U.S. at 441 n.34 (citing Commonwealth v. Meyer, 412 A.2d 517,

518-19, 522 (Pa. 1980) (driver who was detained for over one-half

hour was in custody for the purposes of Miranda by the time the

driver was questioned concerning the circumstances of an

accident)). A reasonable person in Harris' position would

clearly feel that he or she was unable to leave and that he or

she was, in fact, "in custody." This detention was the

"functional equivalent of formal arrest," Berkemer, 468 U.S. at
442, and created a custodial situation requiring appropriate

Miranda warnings.

Trooper Watts testified that he asked Trooper Luddy if he

had conducted a pat-down search of Harris. Trooper Luddy said

that when he asked Harris if he would consent to a pat-down

search of his clothing for weapons, Harris consented. Trooper

Luddy testified that he felt a pipe-like device in one of Harris'

front pants pockets. Trooper Watts also felt the pipe and told

Harris to remove the pipe from his pocket. When Harris removed

the pipe, it was "a corn cob pipe." Although Trooper Luddy

testified that the pipe was one that he usually associated with

marijuana, he did not detect an odor of cocaine or marijuana when

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he smelled the pipe. Indeed, the laboratory analysis reported no

cocaine in the pipe. However, Trooper Watts told Trooper Luddy

the pipe was a crack pipe.

When Trooper Watts asked Harris if he had used the pipe to

smoke crack, Harris responded that he did not use crack cocaine.

Trooper Watts then asked Harris where his tobacco was located.

Harris responded that the tobacco was in the automobile and asked

Trooper Watts if he wanted to see the tobacco. Harris went to

the passenger side of the automobile and removed a small tobacco

pouch and opened it. According to Trooper Watts, a small clear

vial with a green top was clearly visible on top of the tobacco.

Trooper Watts testified that Harris picked up a chunk of tobacco

and twisted it so that the vial fell to the bottom of the pouch.

When Trooper Watts asked to see the pouch, Harris handed it to

him. Trooper Watts removed the vial, saw chunks of matter that

appeared to be cocaine inside the vial, and arrested Harris.

Only then did the troopers inform Harris of his Miranda rights.

A person in the custody of police "must be warned that he

has a right to remain silent, that any statement he does make may

be used as evidence against him, and that he has a right to the

presence of an attorney." Miranda v. Arizona, 384 U.S. 436, 444

(1966). Statements made by an accused during custodial

interrogation and without proper Miranda warnings are

inadmissible as evidence. See Dean v. Commonwealth, 209 Va. 666,

667-68, 166 S.E.2d 228, 230 (1969). "[C]ustodial interrogation

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. . . [is] questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise deprived

of his freedom of action in any significant way." Miranda, 384

U.S. at 444 (footnote omitted).

This is not a case where, during a routine traffic stop, "a

single police officer asked [the defendant] a modest number of

questions," Berkemer, 468 U.S. at 442, or where the defendant's

"freedom of action was not restrained in any significant way."
Cherry, 14 Va. App. at 141, 415 S.E.2d at 245. This is also not

a case where there was "no indication that [the officer] employed

any physical force or engaged in any outward displays of

authority that indicated that [the officer] was detaining [the

defendant]." United States v. Sullivan, ___ F.3d ___, ___ (4th

Cir. 1998) (no custodial interrogation where officer questioned

defendant, who was seated in his own automobile throughout the

dialogue, after a lawful traffic stop had ended). Harris was

subject to "custodial interrogation" at the time the troopers

questioned Harris about the pipe Harris possessed. See Rhode

Island v. Innis, 446 U.S. 291, 301 (1980) (holding that "the term

'interrogation' under Miranda refers not only to express

questioning, but also to any words or actions on the part of the

police . . . that the police should know are reasonably likely to

elicit an incriminating response from the suspect."). The

circumstances clearly established that Harris reasonably did not

feel free to decline the officer's questioning and request.

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Furthermore, the circumstances certainly proved that Harris was

not free to terminate the encounter.

Because Harris was not warned of his Miranda rights prior to

the questioning that led to the discovery of incriminating

evidence, I would hold that the statements were obtained in

violation of Harris' Fifth Amendment rights and that all the

evidence derived from his statements was tainted under the rule

of Wong Sun v. United States, 371 U.S. 471, 488 (1963). The

statements and evidence should have been suppressed.
I would also hold that the trial judge's decision to admit

in evidence the driver's statement was a denial of Harris' Sixth

Amendment right to confront witnesses against him. See Ohio v.

Roberts, 448 U.S. 56, 66 (1980). The Commonwealth called the

driver as its witness at trial. The driver denied any knowledge

of the cocaine and denied seeing Harris purchase or possess the

cocaine. When the Commonwealth made an oral motion "to strike

the entirety of [the driver's] testimony," the trial judge

granted the motion. After the driver left the courtroom, the

Commonwealth proved through Trooper Jones a hearsay statement

attributed to the driver.

I believe the statement was inadmissible and that the error

was not harmless beyond a reasonable doubt. See Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991).

For this additional reason, I would reverse the conviction.

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