COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued by teleconference
ANTOINE ANDRE WOODHOUSE
MEMORANDUM OPINION * BY
v. Record No. 1707-00-2 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Patricia P. Nagel, Assistant Public Defender
(Gregory W. Franklin, Assistant Public
Defender; Office of the Public Defender, on
brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Antoine Andre Woodhouse was convicted in a bench trial of
possession of heroin and possession of cocaine, both in violation
of Code § 18.2-250. On appeal, he contends that the trial court
erred in denying his motion to suppress certain evidence. For the
following reasons, we reverse the judgment of the trial court and
order the charges dismissed.
I. BACKGROUND
On January 20, 2000, Richmond Police Officer John Cary
observed Woodhouse standing in front of 1979 Raven Street.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Posted on the property and above Woodhouse's head were "no
trespassing" signs. For approximately one to two minutes
Officer Cary observed Woodhouse standing by himself on the
stoop. When other officers approached the stoop, Woodhouse
walked away.
Because Woodhouse made no contact with any occupant of the
residence and stood on the apartment stoop without going to the
door, Officer Cary approached and asked to speak with him.
Woodhouse replied, "What about?" Officer Cary informed
Woodhouse that the property was posted "no trespassing,"
indicating the signs, and stated that he was investigating a
possible "no trespassing" violation.
Woodhouse stated that he was visiting a man named J.J., who
lived in the apartment where he had been standing. He stated
that he did not know any more of J.J.'s name. When asked where
J.J. lived, Woodhouse pointed to the door in front of which he
had been standing. Officer Cary had another officer knock on
the door. No one answered. The officers were unable to
determine whether J.J. lived there. At that point, Officer Cary
arrested Woodhouse for trespassing. Searching Woodhouse
incident to the arrest, Officer Cary recovered heroin and
cocaine.
Woodhouse moved to suppress as evidence the drugs found on
his person, arguing that he had been unlawfully seized. The
motion was denied. At the conclusion of the Commonwealth's
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case, Woodhouse moved to strike the evidence as insufficient to
prove trespass or intent to distribute heroin or cocaine. The
trial court granted the motion. It convicted Woodhouse of
simple possession of heroin in violation of Code § 18.2-250 and
simple possession of cocaine in violation of Code § 18.2-250.
It dismissed the trespass charge.
II. UNLAWFUL DETENTION
Woodhouse contends on appeal that the trial court erred in
denying his motion to suppress the drugs found on his person.
He argues that he was unlawfully seized when Officer Cary
detained him to investigate a trespass and that the discovery of
the drugs flowed from that seizure.
A. STANDARD OF REVIEW
Upon a Fourth Amendment challenge on appeal, "[u]ltimate
questions of reasonable suspicion and probable cause to make a
warrantless search" involve questions of both law and fact and
are reviewed de novo. McGee v. Commonwealth, 25 Va. App. 193,
197, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v.
United States, 517 U.S. 690, 691 (1996)). The reviewing court
is 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
198, 487 S.E.2d at 261 (citing Ornelas, 517 U.S. at 699).
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B. CONSENSUAL STOP
A law enforcement officer does not violate the Fourth
Amendment "merely by approaching an individual on the street,
identifying [himself], and asking the individual questions."
Buck v. Commonwealth, 20 Va. App. 298, 301-02 (1995) (citing
Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645,
647-48 (1992)).
Officer Cary's initial encounter with Woodhouse was
consensual. A consensual encounter need not be predicated on
suspicion of criminal activity and remains consensual so long as
the encountered citizen voluntarily cooperates with the police.
Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870
(1992) (quoting United States v. Wilson, 953 F.2d 116, 121 (4th
Cir. 1991)). Officer Cary approached Woodhouse and asked to
speak with him. Woodhouse stopped and asked, "what about?"
Officer Cary explained that he was investigating a possible
trespass and asked Woodhouse whether he had seen the "no
trespassing" signs. Woodhouse replied that he was visiting J.J.
and pointed to the door in front of which he had been standing.
At no time during this questioning did Woodhouse attempt to
break off his contact with Officer Cary or decline to answer his
questions. To that point, his encounter with Officer Cary was
consensual.
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C. ARREST
The evidence that Woodhouse sought to have suppressed and
upon which his convictions were based was discovered upon his
arrest for trespass. The information gained by Officer Cary
from observation and from his conversation with Woodhouse was
insufficient to provide probable cause supporting that arrest.
Woodhouse's presence on the stoop was consistent with his
explanation that he was there for the legitimate purpose of
calling on a friend. The officer did not see Woodhouse go onto
the stoop. No evidence disclosed that Woodhouse had not knocked
on the door. His remaining on the stoop for a minute or two
suggested no more than indecision. His departure upon the
approach of the police officers could well have been
coincidental and, at most, suggested no more than a
disinclination to encounter the police, a motive not necessarily
criminal. In sum, the totality of the circumstances afforded
Officer Cary no more than a hunch that Woodhouse was
trespassing. See Harris v. Commonwealth, 262 Va. 407, 551
S.E.2d 606 (2001); Ewell v. Commonwealth, 254 Va. 214, 491
S.E.2d 721 (1997).
The judgment of the trial court is reversed, and the
charges are ordered dismissed.
Reversed and dismissed.
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