COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia
JEROME LEE WOODSON, JR.
MEMORANDUM OPINION * BY
v. Record No. 1031-01-2 JUDGE LARRY G. ELDER
APRIL 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Gregory W. Franklin, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Jerome Lee Woodson (appellant) appeals from his bench trial
conviction for possession of cocaine in violation of Code
§ 18.2-250. On appeal, he contends the trial court erroneously
denied his motion to suppress because the officers detained him
without reasonable suspicion of criminal activity and because
the search which yielded the cocaine exceeded the scope of
appellant's consent. We hold the encounter became a seizure
when the officer told appellant he had committed a criminal
offense by possessing an open container of alcohol. Assuming
without deciding the seizure was objectively reasonable, the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
justification for the seizure ended when appellant poured out
the beer at the officer's request. However, a reasonable person
in appellant's position would not have felt free to leave or to
decline the officer's request to search, and thus the seizure
continued. Because the search was not supported by probable
cause and appellant's consent was tainted by the illegal
seizure, the search was unreasonable and violated the Fourth
Amendment.
On appeal of the denial of a motion to suppress, we view
the evidence in the light most favorable to the Commonwealth,
granting to the evidence all reasonable inferences fairly
deducible therefrom. Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the
trial court's findings of historical fact unless 'plainly wrong'
or without evidence to support them." McGee v. Commonwealth, 25
Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc).
However, we review de novo the trial court's application of
defined legal standards such as probable cause and reasonable
suspicion to the particular facts of the case. See Ornelas v.
United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134
L. Ed. 2d 911 (1996). We also review de novo the question
whether a person has been seized in violation of the Fourth
Amendment. Reittinger v. Commonwealth, 260 Va. 232, 236, 532
S.E.2d 25, 27 (2000).
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"Fourth Amendment jurisprudence recognizes three categories
of police-citizen [contacts]: (1) consensual encounters, (2)
brief, minimally intrusive investigatory detentions based upon
specific, articulable facts, commonly referred to as Terry
stops, and (3) highly intrusive arrests and searches founded on
probable cause." Wechsler v. Commonwealth, 20 Va. App. 162,
169, 455 S.E.2d 744, 747 (1995) (citation omitted). "A seizure
occurs when an individual is either physically restrained or has
submitted to a show of authority." McGee, 25 Va. App. at 199,
487 S.E.2d at 262. "Whether a seizure has occurred . . .
depends upon whether, under the totality of the circumstances, a
reasonable person would have believed that he or she was not
free to leave." Id. at 199-200, 487 S.E.2d at 262. Relevant
factors under the "totality of the circumstances" analysis
include "the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer's request might be
compelled." United States v. Mendenhall, 446 U.S. 544, 554, 100
S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980) (emphases added).
The Supreme Court applied these principles in Reittinger,
which involved facts similar to those in appellant's case. In
Reittinger, two armed, uniformed deputies stopped the driver's
van "in a rural area in the nighttime." Id. at 234, 237, 532
S.E.2d at 26, 27. One deputy approached the driver while the
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other approached the passenger. Id. at 234, 236, 532 S.E.2d at
26, 27. When the deputy informed the driver that only one of
the van's headlights was illuminated, the driver showed the
deputy a new headlight and said he planned to install it the
following day. Id. at 234, 532 S.E.2d at 26. The deputy
decided against issuing a citation, gave the driver a verbal
warning, and told him he was "'free to go.'" Id. Immediately
thereafter, however, the deputy asked the driver whether he had
any illegal weapons or drugs in the vehicle, and the driver
responded there was nothing illegal in the van. Id. The deputy
then asked three times for permission to search the van while
the driver appeared to consult with the van's passengers. Id.
Without responding expressly to the deputy's request, the driver
exited the van. Id. The deputy saw a "'large bulge'" in the
driver's pants pocket, conducted a pat-down in which he
determined the bulge was "hard" and might be a weapon, and
ordered the driver to remove the object, which proved to be a
pipe containing marijuana residue. Id.
The Court held
[a]lthough Deputy Bolen had told Reittinger
that he was free to go, we think that the
events that transpired immediately
thereafter would suggest to a reasonable
person that just the opposite was the case.
We do not think that a reasonable person,
under the circumstances, would have
considered that he was free to disregard the
deputies and simply drive away. Therefore,
we conclude, from our de novo review of the
facts, that Reittinger was unlawfully seized
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in violation of his Fourth Amendment rights
. . . [and] that the trial court . . . erred
in refusing to suppress the product of the
unlawful seizure and search of Reittinger
. . . .
Id. at 237, 532 S.E.2d at 28.
Similarly, here, we hold as a matter of law, under the
totality of the circumstances, that a reasonable person in
appellant's position would have believed he was not free to
leave or to decline Officer Davenport's request to search.
Although the vehicle appellant occupied was parked when Officer
Davenport approached it, Davenport nevertheless seized appellant
when he told appellant that his actions in possessing an open
container of beer were illegal and asked appellant to pour the
beer out. See McGee, 25 Va. App. at 200, 487 S.E.2d at 262
("[W]hen a police officer confronts a person and informs the
individual that he or she has been specifically identified as 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."). Thus, regardless of whether
appellant's possession of the open container violated a statute
or ordinance, 1 Davenport's actions constituted a seizure.
Davenport's statement that he would not issue appellant a
1
We assume without deciding that appellant's possession of
the open container in a private vehicle did not constitute a
violation of a statute or ordinance.
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citation for the offense, rather than removing the coercive
impact of the encounter, served to heighten it. A reasonable
person in appellant's position would have believed that this
continued cooperation with Officer Davenport's "requests" was
required in order for him to avoid receiving a citation for the
alcohol offense. See Florida v. Bostick, 501 U.S. 429, 438, 111
S. Ct. 2382, 2388, 115 L. Ed. 2d 389 (1991) ("[T]he 'reasonable
person' test presupposes an innocent person.").
The justification for the seizure ended when appellant
poured out his beer and Officer Davenport opted not to issue a
citation. Nevertheless, as in Reittinger, the seizure continued
because a reasonable person would not have felt free to leave
when Officer Davenport, who was accompanied by a second officer
during a nighttime stop, asked first for identification and then
for permission to search appellant's person. See Reittinger,
260 Va. at 236-37, 532 S.E.2d at 27-28. The facts demonstrating
an ongoing seizure in appellant's case are even stronger than
those in Reittinger because Officer Davenport never told
appellant he was free to leave.
"Evidence obtained as a direct result of an
unconstitutional search or seizure is plainly subject to
exclusion." Segura v. United States, 468 U.S. 796, 804-05, 104
S. Ct. 3380, 3385, 82 L. Ed. 2d 599 (1984). Only three
exceptions to this rule exist: "(1) evidence attributed to an
independent source; (2) evidence where the connection has become
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so attenuated as to dissipate the taint; and (3) evidence which
inevitably would have been gained even without the unlawful
action." Warlick v. Commonwealth, 215 Va. 263, 266, 208 S.E.2d
746, 748 (1974).
Here, no evidence establishes an independent source or
inevitable discovery. Further, no evidence indicates that the
connection between the illegal seizure and the consent was so
attenuated as to dissipate the taint. Appellant purportedly
consented to be searched under circumstances in which a
reasonable person would not have felt free to leave or to
withhold consent. No evidence indicated Officer Davenport told
appellant that he was free to go or to refuse Davenport's
request to search his person. Thus, the connection between the
illegal seizure and the consent was strong, and we hold the
evidence failed to prove a purging of the primary taint.
For these reasons, we hold the trial court erroneously
denied appellant's suppression motion. Therefore, we reverse
appellant's conviction and remand for further proceedings
consistent with this opinion if the Commonwealth be so advised.
Reversed and remanded.
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