COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia
WAYNE THOMAS IMEL
MEMORANDUM OPINION * BY
v. Record No. 1740-00-2 JUDGE LARRY G. ELDER
MAY 15, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Matthew P. Geary (Barbara J. Gaden, L.L.C.,
on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Wayne Thomas Imel (appellant) appeals from his bench trial
convictions for two counts of robbery, two counts of use of a
firearm in the commission of robbery, and one count each of
entering a bank with a weapon and possessing cocaine. On
appeal, he contends the trial court erroneously (1) denied his
motion to suppress the cocaine, which was seized when he was
detained at a shopping mall and subjected to a pat-down search
for weapons; (2) denied his motion to suppress his statement to
police in which he admitted the bank robbery; and (3) concluded
the evidence was sufficient to sustain his convictions in light
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
of the erroneous rulings on the motions to suppress. We hold
the weapons frisk of appellant in the shopping mall incident was
not supported by reasonable, articulable suspicion to believe
that appellant was armed and dangerous. Thus, the denial of the
motion to suppress the cocaine was erroneous, and we reverse the
conviction for possessing cocaine and remand for further
proceedings if the Commonwealth be so advised. However, the
evidence, viewed in the light most favorable to the
Commonwealth, supported the trial court's finding that appellant
knowingly and intelligently waived his right to counsel. Thus,
the trial court's denial of the motion to suppress the robbery
confession was not erroneous, and we affirm the robbery and
related firearm convictions.
I.
At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that the challenged
behavior did not violate the defendant's constitutional rights.
See Mills v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718,
722-23 (1992). "In determining whether the Commonwealth has met
its burden, the trial court, acting as fact finder, must
evaluate the credibility of the witnesses . . . and resolve the
conflicts in their testimony . . . ." Witt v. Commonwealth, 215
Va. 670, 674, 212 S.E.2d 293, 297 (1975). On appeal, we view
the evidence in the light most favorable to the prevailing
party, here the Commonwealth. Mills, 14 Va. App. at 468, 418
- 2 -
S.E.2d at 723. "[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). However, we review de novo
the trial court's application of defined legal standards, such
as whether the police had reasonable suspicion or probable cause
for a search or seizure or whether a confession was voluntary,
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); Mills, 14 Va. App. at 468, 418 S.E.2d at 723.
A.
MOTION TO SUPPRESS COCAINE
"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, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968), 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). An officer
who develops reasonable suspicion that criminal activity is
occurring may stop a person "in order to identify him, to
question him briefly, or to detain him briefly, while attempting
- 3 -
to obtain additional information" in order to confirm or dispel
his suspicions. Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct.
1643, 1647, 84 L. Ed. 2d 705 (1985).
The right to conduct a full search of a person is automatic
only in the case of a custodial arrest. See Rhodes v.
Commonwealth, 29 Va. App. 641, 644-46, 513 S.E.2d 904, 905-06
(1999) (en banc). An officer may not conduct a full search of a
suspect simply because he is effecting a Terry stop, but he may
conduct a pat-down search for weapons during a Terry stop if
reasonable suspicion of criminal activity supports the stop and,
additionally, the officer has reasonable, articulable suspicion
that the person is armed and dangerous. See Adams v. Williams,
407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612
(1972); 4 Wayne R. LaFave, Search and Seizure § 9.5(a), at
246-47 (3d ed. 1996). Our review of the existence of reasonable
suspicion involves application of an objective rather than
subjective standard. See, e.g., Whren v. United States, 517
U.S. 806, 812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89
(1996). The exclusionary rule provides that items discovered in
violation of these principles may not be admitted into evidence.
Warlick v. Commonwealth, 215 Va. 263, 265, 208 S.E.2d 746,
747-48 (1974).
Here, the evidence, viewed in the light most favorable to
the Commonwealth, was sufficient to support the trial court's
implicit finding that the officers had reasonable suspicion to
- 4 -
believe appellant was personally involved in criminal activity.
Detective Norris, who had worked as a "loss merchant" for four
years, thought, based on his experience and his observations of
appellant, that appellant was behaving strangely and might
"steal something while in the store." Thereafter, Norris saw a
sales clerk take appellant's shopping bag and heard appellant
call someone on his cell phone to report that he "needed some
help in here." Norris believed appellant was talking to someone
who was elsewhere in the mall, and within two minutes, Norris
saw another male enter the store with a large shopping bag and
make eye contact with appellant. That other male then went to
the men's department, concealed a belt in his shopping bag, and
rejoined appellant. When a uniformed police officer walked
through the store, appellant and his companion worked their way
to the store's side door and exited into the parking lot.
These facts, viewed together by a police officer
experienced in loss prevention, provided reasonable suspicion
that appellant and his companion were involved in a shoplifting
scheme and justified Detective Norris' request to Detective
Bailey to "place [appellant] under investigative detention"
while Detective Norris arrested appellant's companion and
examined the contents of the bag the sales clerk had taken from
appellant.
The objective facts did not, however, provide Detective
Bailey with reasonable, articulable suspicion to believe that
- 5 -
appellant was armed and dangerous. Detective Bailey's only
justification for the pat-down was that appellant was "very
jittery and nervous" and that Bailey believed appellant's
reaction "was not normal for someone . . . in that kind of
situation."
We previously have held that a person's extreme nervousness
during a routine traffic stop for a speeding violation, standing
alone, is insufficient to provide the reasonable suspicion
necessary for a pat-down search. Moore v. Commonwealth, 12 Va.
App. 404, 406-07, 404 S.E.2d 77, 78 (1991). In Moore, the stop
took place during daylight hours while Moore was alone in his
car. Id. at 406, 404 S.E.2d at 78. Moore made no attempt to
evade the police and no unusual gestures to suggest that he
might have a weapon on his person or inside the car. Id. The
officer conducting the stop "admitted that it is common for a
person to be nervous when stopped by the police." Id. Although
the officer conducting the stop knew other officers had Moore
under surveillance, he did not know the reason for the
surveillance and was aware of no other basis for believing Moore
might be armed and dangerous. Id. Under these facts, we held
the officer improperly "based the pat-down on his subjective
evaluation of Moore's nervousness" and that he lacked
reasonable, articulable suspicion to believe Moore was armed and
dangerous. Id. at 406-07, 404 S.E.2d at 78.
- 6 -
We see no reason to distinguish appellant's case from
Moore. Although the offense appellant was suspected of
committing, shoplifting, was more serious than speeding,
shoplifting is not the sort of crime with which weapons
possession is routinely associated. Compare Logan v.
Commonwealth, 19 Va. App. 437, 445, 452 S.E.2d 364, 369 (1994)
(en banc) (observing that "[t]he relationship between the
distribution of controlled substances . . . and the possession
and use of dangerous weapons is now well recognized"). We hold
that Detective Bailey's testimony that it was unusual for
someone stopped by police for shoplifting to be nervous was
objectively unreasonable as a matter of law and, in any event,
that such testimony was insufficient, standing alone, to
establish an objectively reasonable suspicion of weapons
possession. Here, as in Moore, appellant made no unusual
gestures indicating he might be armed, and Detective Bailey
described no unusual bulges in appellant's clothing. Compare,
e.g., James v. Commonwealth, 22 Va. App. 740, 745-46, 473 S.E.2d
90, 92 (1996) (upholding frisk of passenger who was in vehicle
with person wanted on a felony warrant and who appeared nervous,
failed to comply with officer's request to keep his hands on
dashboard, and kept asking to exit the vehicle).
For these reasons, we reverse appellant's conviction for
possession of cocaine and remand for further proceedings if the
Commonwealth be so advised.
- 7 -
B.
MOTION TO SUPPRESS ROBBERY CONFESSION
A suspect must knowingly and intelligently waive his rights
against self-incrimination and to the assistance of legal
counsel in order for a confession made during a custodial
interrogation to be found voluntary and, therefore, admissible
in evidence against him. See Morris v. Commonwealth, 17 Va.
App. 575, 579, 439 S.E.2d 867, 870 (1994). Assessing the
voluntariness of a confession requires an examination of the
totality of the circumstances to determine whether the statement
is the "product of an essentially free and unconstrained choice
by its maker," or whether the maker's will "has been overborne
and his capacity for self-determination critically impaired."
Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041,
2046, 36 L. Ed. 2d 854 (1973). In assessing the totality of the
circumstances, the court must consider both "the details of the
interrogation" and "the characteristics of the accused."
Kauffmann v. Commonwealth, 8 Va. App. 400, 405, 382 S.E.2d 279,
281 (1989).
A defendant who has "expressed his desire to deal with the
police only through counsel[] is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police."
Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885,
- 8 -
68 L. Ed. 2d 378 (1981); see Michigan v. Jackson, 475 U.S. 625,
636, 106 S. Ct. 1404, 1411, 89 L. Ed. 2d 631 (1986). Where a
defendant has invoked his right to counsel but subsequently
initiates further contact with the police, "the trial court may
admit the statement if it determines that the defendant
thereafter 'knowingly and intelligently waived the right he had
invoked.'" Quinn v. Commonwealth, 25 Va. App. 702, 712, 492
S.E.2d 470, 475 (1997) (quoting Smith v. Illinois, 469 U.S. 91,
96, 105 S. Ct. 490, 493, 83 L. Ed. 2d 488 (1984)).
Here, we assume without deciding that appellant invoked his
right to counsel when he said to the officers that he told his
mother he wished to talk to the officers but only with his
lawyer present. Nevertheless, the evidence, viewed in the light
most favorable to the Commonwealth, supports the trial court's
conclusion that appellant thereafter voluntarily waived his
right to counsel before confessing his participation in the
robbery.
So viewed, the evidence establishes that the detectives
came to talk to appellant only after receiving word that he
wanted to speak to them. When appellant said he had told his
mother to have his attorney present, the detectives treated this
as an assertion of the right to counsel and prepared to leave.
Detective Leonard told appellant he could call them the next day
after making the necessary arrangements with his lawyer. When
appellant said, "I want to talk to you," Detective Smith
- 9 -
re-advised appellant of his Miranda rights, and appellant signed
a Miranda waiver form.
Appellant did not again request an attorney and did not
seek to terminate the interview. At the beginning of the
portion of the interview that was audiotaped and transcribed,
appellant agreed that he had been advised of his Miranda rights
and confirmed that he understood them. Appellant's only
reference to counsel during the taped portion of the interview
was at the end, when he said, "I wanted to talk to a lawyer."
(Emphasis added). When Detective Smith responded, "That's not
what your mom said" and "[t]hat's not what you agreed to here,"
appellant did not dispute these statements. Instead, he said
merely that he was "so stupid" for "running [his] . . . mouth."
Appellant argues that his waiver was not voluntary because
he was suffering from severe heroin withdrawal, which included
confusion, nausea, shaking and sweating. As a result of his
weakened physical condition, he contends he was more easily
coerced into confessing. What appellant fails to acknowledge,
however, is that the evidence regarding his condition was
conflicting and that the trial court, as the finder of fact, was
free to reject his testimony of impairment and to accept the
testimony of Officers Leonard and Smith and appellant's own
statements on the audiotaped portion of his confession.
Although Leonard acknowledged that appellant may have reported
being a heroin user and said something about "having a hard time
- 10 -
in there," Leonard testified that he believed the comment
related to appellant's desire to smoke cigarettes, which he was
unable to do because of the jail's no-smoking policy. Both
detectives testified that appellant's physical appearance during
the interview was normal and that they observed no symptoms of
heroin withdrawal. Although appellant may have been tired,
"nervous and confused about what he should do, . . . he seemed
to understand and comprehend what [he and the officers] were
talking about." Finally, the trial court expressly found that
"[t]he best evidence of [appellant's] condition is the statement
itself."
Other evidence further supported the trial court's
conclusion that appellant's waiver of his right to counsel and
his confession were voluntary. Although appellant was unable to
smoke, the detectives provided him with soda and a candy bar.
Further, appellant was no stranger to the criminal justice
system and knew how to exercise his rights. He had been
arrested on January 26, 1999, less than ten days earlier, on the
shopping mall cocaine possession charge for which he was tried
at the same time as the robbery offenses. Further, when
appellant was initially arrested for the subject robbery
offenses on the evening of February 3, 1999, the police informed
him of his Miranda rights and, after signing a form
acknowledging his understanding of those rights, he chose to
exercise them by remaining silent. It was uncontested that
- 11 -
appellant remembered signing that form and understood its
contents. Although he claimed not to have read or comprehended
the contents of an identical form he signed less than
twenty-four hours later, immediately before giving the
challenged confession, the trial court found appellant "was
aware of his rights and made a voluntary waiver of those rights
by telling the detectives he would talk." Thus, our independent
evaluation of the totality of the circumstances supports the
trial court's conclusion that appellant's waiver of his right to
counsel and his subsequent confession were voluntary. The
finding of voluntariness implicitly encompassed a finding that
the waiver was knowing and intelligent. See, e.g., Kauffmann, 8
Va. App. at 404-06, 382 S.E.2d at 281-82 (holding confession
voluntary despite Fifth Amendment challenge without specifically
discussing whether it was "knowing" and "intelligent").
In reaching this conclusion, the trial court was free to
reject the testimony of Dr. George Bright regarding the effect
of heroin withdrawal on appellant's ability to make a voluntary
confession. See Witt, 215 Va. at 674, 212 S.E.2d at 297; see
also Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665,
668-69 (1997) (en banc). Bright's expert opinion regarding the
effect of heroin withdrawal on appellant was based on
appellant's own testimony of the amount of heroin he was using
prior to his arrest and when he last used it. Appellant's
testimony conflicted with the testimony of the detectives that
- 12 -
appellant appeared no more than nervous and tired and exhibited
no physical signs of heroin withdrawal. Bright had not seen
appellant for more than two and one half months prior to his
arrest on the robbery charges and, therefore, had no independent
knowledge of appellant's condition at the time of his arrest and
interrogation. See Street, 25 Va. App. at 389, 488 S.E.2d at
669 (affirming trial court's rejection of expert testimony
because it was based on information relayed by party and
"[e]xperts do not determine the credibility of a witness").
Thus, we conclude, under the totality of the circumstances,
that the trial court's denial of appellant's motion to suppress
his confession was not erroneous. Because appellant's only
challenge to the sufficiency of the evidence to support the
robbery and related firearm convictions pertained to the court's
ruling on the suppression motion, which we have upheld as
proper, we affirm these convictions.
II.
For these reasons, we hold the denial of the motion to
suppress the cocaine was erroneous, and we reverse the
conviction for possessing cocaine and remand for further
proceedings if the Commonwealth be so advised. We hold the
trial court's denial of the motion to suppress the robbery
- 13 -
confession was not erroneous, and we affirm the robbery and
related firearm convictions.
Affirmed in part,
and reversed
and remanded in part.
- 14 -