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
- 2 -
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
- 3 -
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).
- 4 -
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]
- 5 -
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
- 6 -
(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
- 7 -
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.
- 8 -
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
- 9 -
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
- 10 -
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,
- 11 -
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.
- 12 -
Reversed and dismissed.
- 13 -