McGee v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman, Willis, Elder, Bray,
Fitzpatrick, Annunziata and Overton
Argued at Richmond, Virginia

DOUGLAS McGEE, JR.
OPINION BY
v. Record No. 0104-95-2 JUDGE SAM W. COLEMAN III
JULY 8, 1997
COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge

Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.

Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

The defendant, Douglas McGee, Jr., was convicted in a bench

trial of one count of possession of cocaine with intent to

distribute in violation of Code § 18.2-248. A panel of this

Court affirmed the conviction, holding that the defendant was not

seized for Fourth Amendment purposes before he voluntarily

consented to the search which resulted in the recovery of

cocaine. See McGee v. Commonwealth, 23 Va. App. 334, 477 S.E.2d

14 (1996). Upon rehearing en banc, we hold that the trial court

erred in denying the defendant's motion to suppress the cocaine

because it was seized as the result of an illegal search of the

defendant.
 BACKGROUND

When viewed in the light most favorable to the Commonwealth

as the prevailing party, the evidence proved that Officer

Norris I. Loperl of the Richmond Police Department received a

radio dispatch that a black male wearing a white t-shirt, black

shorts, and white tennis shoes was selling drugs on a corner near

5001 Government Road in Richmond. The dispatch was based on a

tip from an anonymous informant, who did not relate the

circumstances under which the drugs were being sold, the identity

of the seller, the nature of drugs being sold, or where the drugs

were located.
Approximately two minutes after receiving the dispatch,

Loperl and two other officers, all of whom were in uniform and

armed, arrived at 5001 Government Road in two marked police

cruisers. Immediately after parking the police cruisers, the

three officers approached the defendant, who was sitting on a

porch in front of a store. The defendant and a female companion

were the only persons that the officers observed in the vicinity.

The officers did not observe the defendant's activity prior to

approaching him. At trial, Officer Loperl testified that he did

not know whether the defendant was wearing a white t-shirt, black

shorts, and tennis shoes as reported in the anonymous tip.

After exiting his vehicle, Officer Loperl approached the

defendant and "stated to him that I had received a call that [he]

was on this corner selling drugs and [that he] matched the

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description" of the individual who had been reported as selling

drugs. According to Loperl, the defendant was free to leave,

although the officers did not expressly so inform the defendant.

Loperl testified that the officers did not block the defendant's

path in any direction or draw their weapons.

Loperl then "asked [the defendant] could I pat him down to

make sure he didn't have any weapons on him." Loperl testified

that he asked the question in the same tone of voice he was using

in court. The defendant responded by standing up and extending

his arms in front of him with both fists clenched. Loperl patted

the defendant down and found no weapons. Since Officer Loperl

believed the defendant could have been holding a "small pocket

knife" or "a razor" in his closed fists, Loperl asked the

defendant to open his hands. Although Loperl could not remember

the exact words used, he testified that, "I know I asked him. I

know I didn't tell him. I asked him." The defendant opened his

hands, which contained money, a torn ziplock bag, and "a little

piece of white substance." Loperl then placed the defendant

under arrest and, in a search of the defendant incident to that

arrest, Loperl found twenty-five bags containing crack cocaine in

the defendant's trousers.
In a written opinion, the trial judge held that the police

officers' encounter with the defendant constituted an

investigatory stop but that Officer Loperl had a reasonable,

articulable suspicion that the defendant was involved in criminal

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activity. Thus, the trial judge ruled that, because the police

did not restrict the defendant's movement or engage in coercive

conduct, the brief detention was reasonable and defendant's

consent to Loperl's request to open his hands was voluntary and,

therefore, the fruits of the search were admissible.

ANALYSIS

In reviewing a trial court's denial of a motion to suppress,

"[t]he burden is upon [the defendant] to show that th[e] ruling,

when the evidence is considered most favorably to the

Commonwealth, constituted reversible error." Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.

denied, 449 U.S. 1017 (1980). "Ultimate questions of reasonable

suspicion and probable cause to make a warrantless search"

involve questions of both law and fact and are reviewed de novo

on appeal. Ornelas v. United States, 116 S. Ct. 1657, 1659

(1996). In performing such analysis, 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. Id. at 1663. 1 We analyze a trial
1
The Ornelas case holds that findings of historical fact are
reviewed on appeal only for "clear error." However, "'[c]lear
error' is a term of art derived from Rule 52(a) of the Federal
Rules of Civil Procedure, and applies when reviewing questions of
fact" in the federal system. Ornelas, 116 S. Ct. at 1661 n.3. In
Virginia, questions of fact are binding on appeal unless "plainly
wrong." Quantum Div. Co. v. Luckett, 242 Va. 159, 161, 409 S.E.2d
121, 122 (1991); Naulty v. Commonwealth, 2 Va. App. 523, 527, 346
S.E.2d 540, 542 (1986).

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judge's determination whether the Fourth Amendment was implicated

by applying de novo our own legal analysis of whether based on

those facts a seizure occurred. See Satchell v. Commonwealth, 20

Va. App. 641, 648, 460 S.E.2d 253, 256 (1995) (en banc); see also

Watson v. Commonwealth, 19 Va. App. 659, 663, 454 S.E.2d 358, 361

(1995).

Police-citizen confrontations generally fall into one of

three categories. Payne v. Commonwealth, 14 Va. App. 86, 88, 414

S.E.2d 869, 869-70 (1992); Iglesias v. Commonwealth, 7 Va. App.
93, 99, 372 S.E.2d 170, 173 (1988). First, there are consensual

encounters which do not implicate the Fourth Amendment.

Iglesias, 7 Va. App. at 99, 372 S.E.2d at 173. Next, there are

brief investigatory stops, commonly referred to as "Terry" stops,

which must be based upon reasonable, articulable suspicion that

criminal activity is or may be afoot. United States v. Sokolow,

490 U.S. 1, 7 (1939). Finally, there are "highly intrusive,

full-scale arrests" or searches which must be based upon probable

cause to believe that a crime has been committed by the suspect.
Id.; see also Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455

S.E.2d 744, 746-47 (1995).

We find, as did the trial court, that the defendant's

encounter with the police was not consensual. Therefore, as the

trial court held, the defendant was seized when the three

officers approached him on the porch and told him that they had a

report that he "was on the corner selling drugs and [that he]

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matched the description." However, we disagree with the trial

court's ruling that the police had reasonable, articulable

suspicion to detain the defendant. Therefore, because the

request to frisk the defendant and his "consent" to be searched

were the result of an illegal detention, the cocaine seized from

him should have been suppressed.

An encounter between a law enforcement officer and a citizen

in which the officer merely identifies himself and states that he

is conducting a narcotics investigation, without more, is not a

seizure within the meaning of the Fourth Amendment but is,

instead, a consensual encounter. See Florida v. Royer, 460 U.S.

491, 497 (1983); Williams v. Commonwealth, 21 Va. App. 263, 266,

463 S.E.2d 679, 681 (1995). A seizure occurs when an individual

is either physically restrained or has submitted to a show of

authority. California v. Hodari D., 499 U.S. 621, 625 (1991);

Ford v. City of Newport News, 23 Va. App. 137, 142, 474 S.E.2d

848, 850 (1996).
The purpose of the Fourth Amendment is not to
eliminate all contact between the police and
the citizenry, but "to prevent arbitrary and
oppressive interference by enforcement
officials with the privacy and personal
security of individuals." As long as the
person to whom questions are put remains free
to disregard the question 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, 553-54 (1980); see

Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647

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(1992). Whether a seizure has occurred for Fourth Amendment

purposes depends upon whether, under the totality of the

circumstances, a reasonable person would have believed that he or

she was not free to leave. Mendenhall, 446 U.S. at 554.

When the police expressly inform an individual that they

have received information that the individual is engaging in

criminal activity, the police "convey a message that compliance

with their requests is required," Florida v. Bostick, 501 U.S.

429, 435 (1991), and "that failure to cooperate would lead only

to formal detention." United States v. Berry, 670 F.2d 583, 597

(5th Cir. 1982). See also Royer, 460 U.S. at 501 (holding that

the accused was seized "when the officers identified themselves

as narcotics agents, told Royer that he was suspected of

transporting narcotics, and asked him to accompany them to the

police room") (emphasis added); United States v. Glass, 741 F.2d

83, 85 (5th Cir. 1984) (holding that the accused was seized when

"the officers informed [him] that [he] was suspected of illegal

activity"); United States v. Manchester, 711 F.2d 458, 460 (1st
Cir. 1983) (finding a seizure where the agents confronted the

accused with their suspicions that he was involved in drug

trafficking); State v. Ossey, 446 So. 2d 280, 285 (La.) (holding

that there was a seizure where the accused "was told that he was

the focus of investigation"), cert. denied, 469 U.S. 916 (1984).

Thus, when a police officer confronts a person and informs

the individual that he or she has been specifically identified as

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a suspect in a particular crime which the officer is

investigating, that fact is significant among the "totality of

the circumstances" to determine whether a reasonable person would

feel free to leave. 2 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. Whether 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 as a suspect

conveys to the person that he or she is a suspect and is not free

to leave.
In this case, Officer Loperl's statement to the defendant

did not merely convey a message that the officers were conducting

a general investigation in response to a report of drug dealing.

Rather, Loperl specifically identified the defendant as the

subject of their drug investigation. See United States v.

Saperstein, 723 F.2d 1221, 1226 (6th Cir. 1983) (finding a

seizure where the agent stated "that he had information

concerning the appellant and his probable activities as a drug

courier"); Wilson v. People, 670 P.2d 325, 334 (Cal. 1983)
(finding a seizure where "the officer advised [the accused] that

he had information that [the accused] was carrying a lot of

2
Other factors that could be considered include the number of
officers present, whether the officers displayed weapons, and
physical circumstances of the encounter. Mendenhall, 446 U.S. at
554.

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drugs"), cert. denied, 466 U.S. 944 (1984). In addition to

Officer Loperl's statement to the defendant, the evidence proved

that three uniformed officers arrived in two marked police

cruisers and confronted the defendant. See Satchell, 20 Va. App.

at 650, 460 S.E.2d at 257. Furthermore, the trial court, which

found that a seizure had occurred, had the opportunity to

evaluate the tone of voice that Officer Loperl said he used in

speaking to the defendant. See id. at 648, 460 S.E.2d at 256

(holding that "[t]he trial court has before it the living

witnesses and can observe their demeanors and inflections"). The

officers 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 selling drugs and that they were detaining him to

investigate his activity. A reasonable person would have

believed, as the trial court found, that he or she was being

detained and was required to open his or her hands as requested

by the officers. Upon our de novo review, we find that the
evidence supports the finding that the officers seized the

defendant by their show of authority. The dispositive question

then is whether the officers had a reasonable basis to suspect

the defendant of criminal activity to justify the investigatory

stop.

If a police officer has reasonable, articulable suspicion

that a person is engaging in, or is about to engage in, criminal

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activity, the officer may detain the suspect to conduct a brief

investigation without violating the person's Fourth Amendment

protection against unreasonable searches and seizures. See Terry

v. Ohio, 392 U.S. 1, 27 (1968). The justification for stopping

the individual need not rise to the level of probable cause, but

must be more than an "inchoate and unparticularized suspicion or

'hunch.'" Id. at 27.

Contrary to the trial court's finding, the evidence is

insufficient to prove that the investigatory detention was

"justifiable" and based upon reasonable, articulable suspicion.

In Alabama v. White, 496 U.S. 325 (1990), the United States
Supreme Court held that a law enforcement officer is justified in

relying upon information from an anonymous tipster in order to

briefly detain a suspect for inquiry and investigation only if

the anonymous information is "sufficiently corroborated" to

provide it some indicia of reliability. Id. at 331. "[A]lthough

the police do not have to verify every detail provided by an

anonymous informant, '[s]ignificant aspects of the informer's

information must be independently corroborated.'" Gregory v.

Commonwealth, 22 Va. App. 100, 106, 468 S.E.2d 117, 120 (1996)

(quoting Bulatko v. Commonwealth, 16 Va. App. 135, 137, 428

S.E.2d 306, 307 (1993)).

In Gregory, the police officer received an anonymous tip

that an individual fitting a certain description was flagging

down cars and selling drugs. When the officer arrived at the

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reported location, and after observing that the accused fit the

description provided by the informant, the officer verified that

the accused was occupying the described vehicle from which he

allegedly was selling drugs. At that point, the officer saw

Gregory exit the car and begin to walk away from it and from the

officer, repeatedly looking over his shoulder at the officer as

he did so. Id. at 108, 468 S.E.2d at 121.

In Gregory, we found that the officer verified or observed

the description of the suspect and his car, that the defendant

was present during the early morning hours at a location where

frequent complaints of drug dealing had been received, the

defendant acted suspiciously and furtively when the police

officer arrived, and refused to show both hands to the officer

when he approached. We held, based upon the informant's tip and

corroborating information developed, that the officer was

justified in believing that Gregory was selling drugs. Id. at

109, 468 S.E.2d at 121-22.

Here, Officer Loperl received an anonymous tip that a black

male wearing a white t-shirt, black shorts, and white tennis

shoes was selling drugs. Officer Loperl did not observe any

suspicious activity or furtive gestures by the defendant that

tended to verify or corroborate the citizen's tip that the

defendant was engaged in criminal activity. At most, Officer

Loperl only knew that the defendant may have fit the description

of the person that the anonymous tipster observed. However,

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Loperl did not observe any suspicious conduct or behavior or

furtive gestures by the defendant. He observed nothing that

suggested in any way that the defendant may have been or was

about to be engaged in criminal activity.

On these facts, no credible evidence supports the trial

court's finding that the investigatory stop was "justifiable."

The police officers had no reason, other than a report from an

anonymous person, to suspect that the defendant was selling

drugs. No evidence established the identity or reliability of

the anonymous tipster or explained how the tipster obtained the

reported information. The evidence provides no reason why the

tipster's conclusory assertion was worthy of being believed. The

officers did not possess a basis to conclude that the anonymous

informant was reliable and, therefore, did not have reasonable

and articulable suspicion to conduct a Terry stop.

Because the seizure of the defendant was unlawful, the

cocaine that was obtained from him in the "consent" search should

have been suppressed as "fruit of the poisonous tree."
Commonwealth v. Ealy, 12 Va. App. 744, 754, 407 S.E.2d 681, 687

(1991). Consent to search obtained as the result of an illegal

detention is "not an independent source of the evidence, but

rather [is] an exploitation of the unlawful [stop]." Id. at 757,

407 S.E.2d at 689.

Accordingly, we reverse the conviction and dismiss the

charge.

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 Reversed and dismissed.

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