COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia
GLENN LAVELLE MOSLEY
MEMORANDUM OPINION * BY
v. Record No. 1207-00-1 JUDGE ROBERT P. FRANK
MAY 29, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
Ben Pavek, Assistant Public Defender, for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Glenn Lavelle Mosley (appellant) was convicted in a bench
trial of possession of cocaine in violation of Code § 18.2-250.
On appeal, he contends the trial court erred in denying his motion
to suppress. Finding no error, we affirm the conviction.
I. BACKGROUND
On December 19, 1998, Detective Dan Lindemeyer and Officer
David Banks of the Virginia Beach Police Department were
conducting surveillance of an apartment building in the 3700 block
of Windlass Circle. The property was posted as a no-trespassing
area and private property. Detective Lindemeyer testified that he
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
was working as a security guard for F & W Management, the owner of
the apartment complex, that evening. When the officers observed
appellant coming from the hallway of 3704 Windlass Circle, they
realized they did not recognize him as a resident of the property.
The officers approached appellant and asked if they could
speak with him. The officers did not ask appellant to stop,
rather he stopped voluntarily. Detective Lindemeyer testified
that he asked appellant if he was a resident of the property.
Appellant responded that he was not a resident of the property but
was there visiting a friend. Detective Lindemeyer then asked
appellant if he had identification. When appellant indicated he
did not have identification, Detective Lindemeyer asked for his
name, date of birth, and Social Security number so the officers
could determine whether appellant was included on the list of
persons banned from the apartment property. Appellant provided
the information voluntarily. Detective Lindemeyer testified that
he wrote down the information and gave it to Officer Banks.
Officer Banks compared appellant's information to the "ban list,"
and he then radioed in to verify appellant's personal information
and determine whether there existed any outstanding warrants for
appellant. Officer Banks did not face appellant while he spoke on
the radio. Appellant was not on the "ban list."
Detective Lindemeyer testified that while Officer Banks was
running the checks on appellant's information, he continued to
talk with appellant and asked appellant if he had any kind of
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drugs or weapons on his person. Appellant responded in the
negative, and Detective Lindemeyer then asked for permission to
search appellant. Appellant responded, "I don't know why, but go
ahead." During the search, Detective Lindemeyer found crack
cocaine in appellant's inner jacket pocket. Detective Lindemeyer
testified he then placed appellant in custody. Neither officer
handcuffed appellant, drew a weapon, or otherwise placed appellant
in custody until after the cocaine was discovered.
Detective Lindemeyer testified that throughout the encounter
he spoke to appellant in a conversational tone of voice and did
not elevate or raise his voice. He stated he did not use strong
language or "cuss words." Detective Lindemeyer also testified
that he and Officer Banks had flashlights but they did not shine
their lights on appellant because the streetlights provided
sufficient lighting to see that appellant's hands were outside of
his pockets.
After hearing evidence on the suppression motion, the trial
judge found, "[I]t was not a seizure under the circumstances that
existed in the case and that it was a proper contact with the
police and it was consensual . . . ."
II. ANALYSIS
On appeal from a trial court's denial of
a motion to suppress, we must review the
evidence in the light most favorable to the
Commonwealth, granting to the Commonwealth
all reasonable inferences fairly deducible
from it. Commonwealth v. Grimstead, 12 Va.
App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
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The findings of the trial court will not be
disturbed unless plainly wrong or without
evidence to support them. See Mier v.
Commonwealth, 12 Va. App. 827, 828, 407
S.E.2d 342, 343 (1991). When reviewing the
trial court's denial of a defendant's motion
to suppress evidence, "[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." McGee v. Commonwealth, 25
Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (quotation marks and citations
omitted).
Debroux v. Commonwealth, 32 Va. App. 364, 370-71, 528 S.E.2d 151,
154, aff'd en banc, 34 Va. App. 72, 537 S.E.2d 630 (2000).
"[W]e 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." McGee v.
Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing
Ornelas v. United States, 517 U.S. 690, 699,
116 S. Ct. 1657, 1659, 134 L.Ed.2d 911
(1996)). 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 Shears v. Commonwealth, 23
Va. App. 394, 398, 477 S.E.2d 309, 311
(1996); see also Ornelas, 517 U.S. at 699,
116 S. Ct. at 1659.
Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359
(1999).
"Fourth Amendment jurisprudence recognizes three categories
of police-citizen confrontations: (1) consensual encounters, (2)
brief, minimally intrusive investigatory detentions, based upon
specific, articulable facts, commonly referred to as Terry stops,
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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). "'[L]aw enforcement officers do not
violate the Fourth Amendment by merely approaching an individual
on the street or in another public place, by asking him if he is
willing to answer some questions . . . .'" Washington v.
Commonwealth, 29 Va. App. 5, 10, 509 S.E.2d 512, 514 (1999) (en
banc) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).
A consensual encounter occurs when
police officers approach persons in public
places "to ask them questions," provided "a
reasonable person would understand that he or
she could refuse to cooperate." United
States v. Wilson, 953 F.2d 116, 121 (4th Cir.
1991) (quoting Florida v. Bostick, 501 U.S.
429, 431, 111 S. Ct. 2382, 2384, 115 L.Ed.2d
389 (1991)); see also Richards v.
Commonwealth, 8 Va. App. 612, 615, 383 S.E.2d
268, 270 (1989). Such encounters "need not
be predicated on any suspicion of the
person's involvement in wrongdoing," and
remain consensual "as long as the citizen
voluntarily cooperates with the police."
Wilson, 953 F.2d at 121.
Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870
(1992).
"[A] person is 'seized' only when, by
means of physical force or show of authority,
his freedom of movement is restrained. . . .
. . . Examples of circumstances that
might indicate a seizure, even where the
person did not attempt to leave, would be 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
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voice indicating that compliance with the
officer's request might be compelled."
Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648
(1992) (quoting United States v. Mendenhall, 446 U.S. 544, 553-54
(1980)).
"[L]aw enforcement officers do not
violate the Fourth Amendment by merely
approaching an individual on the street or in
another public place, by asking him if he is
willing to answer some questions, by putting
questions to him if the person is willing to
listen, or by offering in evidence in a
criminal prosecution his voluntary answers to
such questions. Nor would the fact that the
officer identifies himself as a police
officer, without more, convert the encounter
into a seizure requiring some level of
objective justification."
Id. at 196-97, 413 S.E.2d at 648 (quoting Royer, 460 U.S. at 497).
"Voluntarily responding to a police request, which most
citizens will do, does not negate 'the consensual nature of the
response' even if one is not told that he or she is free not to
respond." Grinton v. Commonwealth, 14 Va. App. 846, 849, 419
S.E.2d 860, 862 (1992) (quoting I.N.S. v. Delgado, 466 U.S. 210,
216 (1984)). "[T]he subjective beliefs of the person approached
are irrelevant to whether a seizure has occurred." United States
v. Winston, 892 F.2d 112, 116 (D.C. Cir. 1989) (citation omitted).
Appellant contends he was "seized" without a showing of
probable cause or reasonable suspicion. We disagree and find that
the encounter between appellant and the officers was consensual
from inception because appellant consented to the search of his
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person that resulted in the discovery of the cocaine in his
pocket.
Appellant argues our decision in McGee, 25 Va. App. 193, 487
S.E.2d 259, applies. We disagree. In McGee, Officer Loperl
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." Id. at 196, 487
S.E.2d at 260. Within minutes, Officer Loperl and two other
officers arrived at 5001 Government Road in marked police
vehicles. Id. The officers approached McGee and a female who
were sitting on a porch in front of a store. Id. McGee and the
woman were the only people in the vicinity. Id. The officers did
not observe McGee's activity prior to approaching him, and Officer
Loperl testified he did not know whether McGee was wearing the
clothing described in the dispatch. Id. Officer Loperl
approached McGee and told him that the police had received a
report that he was selling drugs on the corner and that he matched
the description of the person described as selling the drugs. Id.
Officer Loperl testified that McGee was free to leave but stated
that the officers did not expressly communicate that to McGee.
Id. Officer Loperl also testified that the officers did not block
McGee's path or draw their weapons. Id.
Then, Officer Loperl asked McGee if he could pat him down to
check for weapons. Id. at 197, 487 S.E.2d at 261. The officer
testified that he used "the same tone of voice he was using in
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court" to ask the question. Id. McGee "responded by standing up
and extending his arms in front of him with both fists clenched."
Id. Finding no weapons on appellant's person, Officer Loperl
stated he asked McGee to open his fists because he "believed
[McGee] could have been holding a 'small pocket knife' or 'a
razor . . . .'" Id. Officer Loperl stated he asked, not told,
McGee to open his hands. Id. When McGee opened his fists he was
holding money, a torn ziplock bag, and "'a little piece of white
substance.'" Id. Officer Loperl arrested McGee and found
twenty-five bags of crack cocaine during a search incident to the
arrest. Id.
Sitting en banc, we held that the encounter between McGee and
the officers was not consensual because "[w]hen 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.'" Id. at 200, 487 S.E.2d at 262. We held that
Officer's Loperl's statement to McGee did not convey the message
that the officers were conducting a general investigation of
reported drug dealing. Id. at 201, 487 S.E.2d at 263. Rather,
McGee specifically was identified as the subject of the
investigation. Id. We additionally noted that three officers, in
marked police vehicles, confronted McGee and that the trial court,
which had the opportunity to evaluate Officer Loperl's tone of
voice, found that a seizure occurred. Id. Thus, we concluded
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that "[t]he officers did not by their words or actions suggest
that [McGee] was free to leave." Id.
In this case, when the officers approached appellant,
Detective Lindemeyer spoke with him in the of tone of voice he
used in court. The detective testified he did not use strong
language or "cuss words." The officers did not accuse appellant
of a crime. The detective testified appellant stopped voluntarily
and provided his personal information voluntarily. Neither
officer handcuffed appellant, drew a weapon, or otherwise placed
appellant in custody. In fact, while Detective Lindemeyer spoke
with appellant, Officer Banks had his back to appellant while
using the radio to confirm appellant's information and check for
outstanding warrants.
We, therefore, find that the encounter was unaccompanied by
any "'coercion or show of force or authority by the officer . . .
that would cause a person . . . reasonably to have believed that
he or she was required to comply' and 'not free to leave.'"
Wechsler, 20 Va. App. at 169, 455 S.E.2d at 747 (citation
omitted). Thus, we find no error in the trial court's ruling
that the encounter was consensual and was not a seizure under
the Fourth Amendment.
The Supreme Court of Virginia's recent decision in Parker
v. Commonwealth, 255 Va. 96, 496 S.E.2d 47 (2000), does not
alter our conclusion. In Parker, a police officer, driving a
marked police vehicle, followed Parker for approximately forty
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feet on private property after it became clear that Parker was
trying to avoid the police. Id. at 99, 496 S.E.2d at 49. The
officer stopped the car where Parker was standing. Id. In
finding a seizure, the Supreme Court distinguished its holding
in Baldwin, 243 Va. 191, 413 S.E.2d 645, because the officer in
Baldwin called the suspect to the police cruiser rather than
following him. Id. at 103, 496 S.E.2d at 51. In Parker, the
Court stated, "Without question, Officer Kurisky's acts
constituted a show of authority which restrained the defendant's
liberty." Id.
Unlike Parker, in this case, the police did not follow
appellant nor did appellant try to avoid the officers by
changing direction and walking away. As in Baldwin, appellant
did not try to avoid a police encounter and was not pursued by
the police.
For these reasons, we find the trial court did not err in
denying appellant's motion to suppress. The judgment of the
trial court is, therefore, affirmed.
Affirmed.
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Benton, J., dissenting.
The Commonwealth does not satisfy its burden of proving
consent "by showing a mere submission to a claim of lawful
authority." Florida v. Royer, 460 U.S. 491, 497 (1983). The
evidence proved just that. Two police officers, at least one of
whom was in uniform, were conducting a surveillance of an
apartment building for drug activity at nighttime. When Glenn
Mosley walked out of the building and reached the pavement, the
two officers walked toward him to determine whether he was
banned from the property. As Mosley turned to walk to the
parking lot, the officers did the same. They then "approached
him and asked him if he was a resident on the property." When
Mosley said "no," the officers asked "if he had some kind of an
I.D." When Mosley again said "no," the officer "asked him if he
could give [the officer] his personal information." After
securing that information, one of the officers then began to
check "the ban list." When the officer determined that Mosley
was not on it, he then "started radioing in to check to see if
[Mosley] gave . . . correct information" and "to see if there
were any outstanding warrants on him."
Nothing about the circumstances of the encounter would have
objectively conveyed to a reasonable person that he was free to
leave after the officer asked if he lived in the apartment,
demanded identification, and produced a "ban list" to verify the
person's name. At the outset, this conduct by the officers was
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a confrontation with an accusation that Mosley was a trespasser.
See McGee v. Commonwealth, 25 Va. App. 193, 487 S.E.2d 259
(1997) (en banc). The very nature of their inquiry "convey[ed]
a message that compliance with their requests [was] required."
Florida v. Bostick, 501 U.S. 429, 435 (1991).
"Police need not physically drag a suspect to a halt before
an encounter will be characterized as a stop." Langston v.
Commonwealth, 28 Va. App. 276, 282, 504 S.E.2d 380, 383 (1998).
"When the officers detained [Mosley] for the purpose of
requiring him to identify himself, they performed a seizure of
his person subject to the requirements of the Fourth Amendment."
Brown v. Texas, 443 U.S. 47, 50 (1979). As we have noted,
"[t]he circumstances of the encounter may indicate, even without
physical restraint, a suspect is not free to leave." Langston,
28 Va. App. at 282, 504 S.E.2d at 383. Here, the officers
suspected that Mosley was a trespasser and put him on notice by
their inquiry that he was being investigated. Their approach
and level of questioning of Mosley "surely amount to a show of
official authority such that 'a reasonable person would have
believed that he was not free to leave.'" Royer, 460 U.S. at
502 (citation omitted). See also Parker v. Commonwealth, 255
Va. 96, 103, 496 S.E.2d 47, 51 (1998) (holding that the manner
of the officer's approach established "a show of authority which
restrained the defendant's liberty").
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I would hold that the evidence proved a seizure, that the
seizure was not based on a reasonable, articulable suspicion as
required by Terry v. Ohio, 392 U.S. 1 (1968), and that the trial
judge erred in refusing to suppress the evidence.
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