Satchell v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Baker, Barrow * , Benton,
Koontz, Willis, Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia

MAURICE CLAY SATCHELL

v. Record No. 2186-92-2 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA AUGUST 15, 1995

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Craig S. Cooley for appellant.

Kathleen B. Martin, Assistant Attorney
General (Stephen D. Rosenthal, Attorney
General, on brief), for appellee.

In Commonwealth v. Satchell, 15 Va. App. 127, 422 S.E.2d 412

(1992) (Satchell I), an appeal by the Commonwealth pursuant to

Code § 19.2-398, a panel of this Court reversed the trial court's

suppression of evidence relating to cocaine found on Satchell's

person and remanded the case for trial. In obedience to that

mandate, the trial court admitted the cocaine, and a description

of its seizure, into evidence. On appeal from his resulting

conviction of possession of cocaine and invoking Code § 19.2-409,

Satchell contends that the cocaine and the circumstances of its

discovery should have been excluded because they derived from an

unlawful seizure of his person. We agree and reverse the

judgment of the trial court.

*
Judge Bernard G. Barrow participated in the hearing of this
case and voted to reverse the judgment prior to his death.
 This appeal was assigned initially to a three judge panel.

However, thinking that the issues concerning the effect of our

decision on interlocutory appeals and the review mandate of Code

§ 19.2-409 required a prompt full-Court decision, on motion of

two members of the panel, we decided to consider this case en

banc. Code § 17-116.02(D).

The evidence adduced at the pretrial hearing on Satchell's

initial motion to suppress disclosed that:
In mid-afternoon on December 18, 1991, Sergeant John
Buckovich, who was dressed in plain clothes and
traveling in an unmarked police car, saw [Satchell]
standing with two other individuals on a Richmond
street corner known to Buckovich as an area for
narcotics trafficking. Buckovich saw [Satchell] hand
money to one man and receive something in return. The
three men saw the police car as it approached and
immediately started to walk away in separate
directions. [Satchell] walked to a door stoop, but was
unable to enter the locked door.
From these observations, Buckovich believed that
criminal activity was transpiring. Buckovich, who had
a badge around his neck, approached [Satchell] on the
stoop and identified himself. He asked [Satchell],
"What's in your hand, pal?" [Satchell] showed his left
hand, which was empty. Buckovich then asked [Satchell]
what was in his other hand. [Satchell] opened his
right hand, which contained two packages of cocaine.
Buckovich arrested [Satchell]. Buckovich testified
that until he observed the cocaine and made the arrest,
Satchell was free to leave at any time or to ignore
Buckovich's questions.

Satchell I, 15 Va. App. at 129, 422 S.E.2d at 413. The trial

court ruled that Buckovich's observations were insufficient to

establish the level of suspicion required to justify a seizure of

Satchell's person. The Commonwealth did not contest that ruling

in Satchell I and does not contest it in this appeal.

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 The trial court found that a person in Satchell's position

would reasonably have believed that he was not free to leave or

to disregard Buckovich's questions. It ruled that Satchell had

been seized and that the seizure, being unsupported by the

requisite reasonable suspicion, was unlawful. It suppressed

evidence of the cocaine and the circumstances surrounding its

discovery.

The Commonwealth appealed the suppression ruling pursuant to

Code § 19.2-398. Holding that, under the recited circumstances,

Buckovich had not seized Satchell, a panel of this Court reversed

the suppression ruling and remanded the case for trial. The

panel noted:
[A] law enforcement officer does not violate the fourth
amendment by merely approaching an individual in a
public place and asking questions of the person if the
individual is willing or chooses to remain and answer
them. There must be some coercion or show of force or
authority by the officer, measured by objective
standards, that would cause a person so situated
reasonably to have believed that he or she was required
to comply with the officer's requests.

Id. at 131, 422 S.E.2d at 415 (citation omitted). The panel

analyzed the facts as follows:
Sergeant Buckovich approached Satchell in midday in
public and asked him what was in his hand. The officer
made no show of authority other than his presence, he
was not in uniform, he displayed no weapon, he was a
lone officer, and, insofar as the record reflects, he
made no command nor adopted a threatening tone. A
question, as directed by Buckovich, is less coercive
than a demand, as made by the officer in Baldwin [243
Va. 191, 413 S.E.2d 645 (1992)]. In Baldwin, the
police officer's demand, coupled with the shining of a
floodlight and a request for identification, was held
not to constitute a seizure. The Court found that a
reasonably prudent person under those circumstances

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 would not have believed his freedom of movement was
restrained. In this case, the trial court ruled that a
reasonably prudent person in Satchell's position, when
approached by an officer and asked what was in his
hand, would have believed he was not free to leave.
. . . Absent factors of coerciveness or factors that
would have confined Satchell, we find no evidence to
support the ruling by the trial judge.

Id. at 132, 422 S.E.2d at 415.

At trial upon remand, the trial court reopened the

admissibility issue concerning the cocaine and the circumstances

of its discovery. The evidence at trial established, in addition

to the scenario described in Satchell I, that four officers
exited the police vehicle, that Buckovich walked swiftly toward

Satchell and followed him onto the porch of a nearby building,

that Satchell attempted to enter the building but was prevented

from doing so by a locked door, and that Buckovich, although

wearing plain clothes, displayed a visible firearm. Buckovich

testified that he "hoped" Satchell would comply with his request.

He said that he would have pressed Satchell for compliance,

although "if he wanted to leave there was no way that I could

keep him. I didn't have any right to hold him . . . ."

Buckovich acknowledged that he was attempting to conduct an

investigative detention. Adhering to its previous factual

findings and reaffirming its earlier conclusion that a reasonable

person would not have felt free to leave under the circumstances,

the trial court ruled, "I am fully aware of my obligation to

follow the holdings of the Court [of Appeals], and for that

reason I deny [the objection to the evidence]."

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 Before addressing the merits of the case, we confront three

threshold questions: (1) the reviewability of the issue decided

in Satchell I, (2) the context of review, and (3) the standard of

review.

Reviewability

Relying on Commonwealth v. Burns, 240 Va. 171, 173-74, 395

S.E.2d 456, 457 (1990), and Robinson v. Commonwealth, 13 Va. App.

540, 543, 413 S.E.2d 661, 662 (1992), the Commonwealth contends

that the holding in Satchell I is stare decisis as to the
admissibility issue raised in this appeal. We find this argument

unpersuasive. Burns and Robinson concerned rules of law

developed in the normal appellate process. The holding in

Satchell I addressed the admissibility of specific items of

evidence, not in the context of the normal appellate process, but

in the context of a special, prospective, interlocutory, and

limited appellate review.

Code § 19.2-408 provides:
The decision of the Court of Appeals shall be final
for purposes of an appeal pursuant to § 19.2-398 . . .
and no further pretrial appeal shall lie to the Supreme
Court.

No provision is made for rehearing en banc. Code § 19.2-409

provides, in pertinent part:
Such finality of the Court of Appeals' decision shall
not preclude a defendant, if he is convicted, from
requesting the Court of Appeals or Supreme Court on
direct appeal to reconsider an issue which was the
subject of the pretrial appeal.

The purpose of Chapter 25 of Title 19.2 of the Code (§§ 19.2-398,

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et seq.) is to afford the Commonwealth a limited right of appeal

under certain carefully specified circumstances. Those appeals

are pre-trial, and the statutory scheme plainly contemplates that

rulings on such appeals are interlocutory and reversible, as are

the reviewed trial court rulings. This conclusion is made plain

by the early finality and limitation of appellate review set

forth in Code § 19.2-408 and by the express provision for

reconsideration on direct appeal set forth in Code § 19.2-409.

Thus, the holding in Satchell I is not stare decisis as to the
admissibility issue raised in this appeal, and that issue is

fully reviewable.

The Context of Review

Although we consider in this appeal the same issue of

admissibility considered in Satchell I, this case is not a

rehearing of Satchell I. The error assigned is to the trial

court's admission of the questioned evidence at trial, following

remand under Satchell I. Thus, our inquiry is not confined to

the facts before the trial court when it made its initial

suppression ruling. Rather, we consider all the facts underlying

the ruling admitting the evidence. Had the trial court heard no

further evidence on the subject but simply admitted the evidence

in obedience to the mandate of Satchell I, our inquiry would, of
necessity, address only the circumstances underlying the holding

in Satchell I. However, because the trial court heard further

evidence on the matter, our inquiry must address the full context

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in which the trial court ruled, and we must consider the

additional evidence adduced at trial.

The Standard of Review

Upon review of an evidentiary suppression ruling, we view

the evidence in the light most favorable to the party prevailing

below, granting to it all reasonable inferences fairly deducible

therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991).
This well-established standard is based on deference to the

peculiar fact finding capability of the trial court. In

appraising the evidence, the trial court is not limited to the

stark, written record. The trial court has before it the living

witnesses and can observe their demeanors and inflections. In

assessing the credibility of witnesses and the weight and

significance to be given their testimony, the trial court enjoys

advantages not available on appeal.

This case presents an anomaly on review. The trial court

made factual findings but ruled contrary to those findings in

obedience to the mandate of Satchell I. Under those

circumstances, we adopt for this case a standard of review

deferential to the trial court's factual findings and confine our

inquiry to whether those findings are supported by credible

evidence. Those findings, if supported by credible evidence,

constitute the factual predicate to which we must apply our legal

analysis.

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 Seizure Issue

A person is seized "only if, in view of all the

circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave." United States v.

Mendenhall, 446 U.S. 544, 554 (1980); see also Florida v. Royer,

460 U.S. 491, 502 (1983).
Although the Mendenhall test "is necessarily imprecise"
and "flexible enough to be applied to the whole range
of police conduct in an equally broad range of
settings, it calls for consistent application from one
police encounter to the next, regardless of the
particular individual's response to the action of the
police." Whether a person who encounters a police
officer believes he is free to leave must be measured
under all the circumstances by an "objective standard -
looking to the reasonable man's interpretation of the
conduct in question." Whether a seizure has taken
place involves factual determinations which bear upon
whether a reasonably prudent person would feel that he
or she is not free to leave, but whether the evidence
is sufficient to support a finding that a seizure has
occurred is ultimately a question of law.

Satchell I, 15 Va. App. at 130, 422 S.E.2d at 414 (citations

omitted).

Buckovich was one of four officers who exited the police

car. Although Buckovich wore plain clothes, he announced his

status as a police officer. He wore a badge on a chain around

his neck and carried a visible firearm. Walking swiftly, he

pursued Satchell onto private property. When Satchell was unable

to enter the locked door of the house, he turned and, with his

back to the locked door, was confronted by Buckovich on the

confines of the porch. This record alone discloses Buckovich in

an authoritative and aggressive posture and reveals Satchell, in

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effect, being brought to bay. Furthermore, the trial court had

the advantage, denied to us, of seeing Buckovich in person, of

observing his demeanor, and of assessing his inflection as he

described his conduct and questions. The trial court was

peculiarly well placed to determine whether those questions took

the tone of simple inquiry or of command. The trial court found

that a reasonable person in Satchell's situation would not have

believed himself free to ignore Buckovich's inquiries and leave.

The evidence supports this finding and the trial court's

determination that Satchell was seized.
In support of its contention that the circumstances did not

effect a seizure of Satchell, the Commonwealth relies on Baldwin

v. Commonwealth, 243 Va. 191, 413 S.E.2d 645 (1992). We find

Baldwin distinguishable from this case in two major respects.

First, in Baldwin, the Supreme Court, according deference to

the trial court's findings of fact, held the evidence sufficient

to support those findings, and affirmed the trial court's holding

that no seizure had occurred. The same standard of review

requires us to affirm the trial court's holding that Satchell was

seized.

Second, in Baldwin, the police officers, in a police car,
shined a light on Baldwin and directed him to come to them.

Baldwin complied, but he could as well have walked the other way.

Satchell was confronted by Officer Buckovich in close quarters

with his back to a locked door. He lacked the alternative

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departure route that was available to Baldwin.

The evidence supports the trial court's holding that

Satchell was unlawfully seized. Because the cocaine in his

possession was discovered only upon that unlawful seizure, the

trial court should have suppressed it as evidence. Without the

cocaine, the evidence was insufficient as a matter of law to

support Satchell's conviction. Accordingly, we reverse his

conviction and order the charge dismissed.

Reversed and dismissed.

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BENTON, J., concurring.

I concur in the opinion, except the section titled, "The

Context of Review," and I concur in the judgment reversing the

conviction. I do not join in the section titled "The Context of

Review" because I believe it too narrowly interprets the language

of Code § 19.2-409, the statute that controls the scope of our

review. 1

This appeal follows Satchell's conviction for possession of

cocaine. Following an interlocutory appeal prior to that trial,

1
I also disagree with the process by which this appeal was
considered en banc. Following Satchell's conviction, this appeal
followed the usual procedure. When a panel granted the petition
for appeal, the appeal was assigned to a panel of three judges
who considered the appeal on the record after briefing and oral
argument. An opinion was prepared with one judge dissenting.
When the opinions were filed in the clerk's office, the
dissenting judge requested that the entire Court reconsider the
appeal en banc. The Court determined to withhold release of the
panel's decision and to consider the appeal anew en banc. I
believe that there are sound jurisprudential reasons to avoid a
mechanism that allows a dissenting judge to initiate an en banc
consideration after a panel has decided a case and before the
panel releases its decision.

Although the statutory provisions for hearing a case en banc
state that "[t]he Court may sit en banc . . . at any time," Code
§ 17-116.02(D), the procedure employed to take this case en banc
squandered scarce judicial resources. More importantly, however,
the procedure employed in this case graphically demonstrates the
need for this Court to set standards for en banc review that are
published and available to all litigants. All members of the Bar
should be informed that assignment of a case to a panel and the
panel's consideration of an appeal do not preclude en banc
consideration before the panel renders its decision. Although I
believe that this process negates the efficiency of the panel
process, I also believe that this Court has an obligation to
inform the Bar of the procedures that it employs to consider
cases en banc.

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this Court reversed the trial judge's decision to suppress

unlawfully seized evidence. See Satchell v. Commonwealth, 15 Va.

App. 127, 422 S.E.2d 412 (1992).

In pertinent part, Code § 19.2-409 states that "the Court of

Appeals' decision [following a pretrial appeal by the

Commonwealth] shall not preclude a defendant, if he is convicted,

from requesting the Court of Appeals or Supreme Court on direct

appeal to reconsider an issue which was the subject of the

pretrial appeal." Consistent with the statute, Satchell asked

this Court to review both the trial judge's initial ruling on the

suppression motion and the trial judge's decision on remand

following the interlocutory appeal. In particular, the issues

presented for review are whether "[t]he . . . [previous] panel

erred by reversing the April 10, 1992 ruling of the trial judge

granting the original motion to suppress" and whether "[t]he

trial court erred in not granting the renewed motion to suppress

made October 28, 1992."
This appeal, which invokes the review granted by Code

§ 19.2-409, requires this Court to conduct a two-step review.

First, because Satchell requests it, the Court must conduct a

review of the pretrial suppression ruling that was the subject of

the initial Commonwealth's appeal. Code § 19.2-409 by its very

terms mandates that review. On this review, when we "reconsider

[the] issue which was the subject of the pretrial appeal," Code

§ 19.2-409, we must view the evidence from the initial

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suppression hearing in the light most favorable to Satchell, who

prevailed at that hearing. See Commonwealth v. Grimstead, 12 Va.

App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

Second, if that initial review results in a renewed holding

that the trial judge erred in suppressing pretrial evidence that

was the subject of the prior interlocutory appeal, the Court must

then review the appeal from the trial judge's denial of the

renewed suppression motion made following remand. At the hearing

when the renewed motion to suppress was considered, the trial

judge considered new evidence that Satchell presented, and the

trial judge ruled anew on the motion to suppress. Our review of

the trial judge's decision following the remand from the

interlocutory ruling is consistent with the review in which the

majority opinion engages. This is the review that must be taken

even in the absence of a statute such as Code § 19.2-409.
Because this two-step review is statutorily mandated and

because it preserves the appropriate standard of review, I would

first review the decision of the trial judge initially

suppressing the evidence, and I would uphold the trial judge's

decision to suppress the evidence. See, e.g., Satchell v.

Commonwealth, 15 Va. App. 127, 132-34, 422 S.E.2d 412, 415-17

(1992) (Benton, J., dissenting). However, because I believe that

the majority's analysis properly decides the second prong of the

review, I concur in the judgment reversing the conviction.

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BAKER, J., dissenting.

For the reasons set forth in the panel decision,

Commonwealth v. Satchell, 15 Va. App. 127, 422 S.E.2d 412 (1992),

I respectfully disagree with the majority and would affirm

Satchell's conviction.

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