COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia
REGINALD LEON GRAVES
MEMORANDUM OPINION * BY
v. Record No. 0611-00-1 JUDGE WILLIAM H. HODGES
APRIL 3, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Robert W. Jones, Jr. (Jones & Jones, P.C., on
brief), for appellant.
Susan M. Harris, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Reginald Leon Graves appeals his conviction after a bench
trial of carrying a concealed weapon, second offense. He argues
that the trial court erred in admitting the Commonwealth's
evidence. Graves contends that the evidence was obtained as a
result of an illegal search. For the reasons that follow, we
disagree and affirm his conviction.
BACKGROUND
Viewed in the light most favorable to the Commonwealth,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991), the evidence proved that on January 18, 1999 several
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
police units were dispatched to the Courthouse Green area of
Newport News in response to a report that several black males were
standing on the corner using and selling narcotics. Among the
officers at the scene was Officer J.S. Collins, who testified that
the Courthouse Green area is known as a high crime area and that
in the past he had responded to several shootings and robberies in
the neighborhood. When Collins arrived, there were already
several other officers on the scene, so he took a position in the
nearby parking lot to watch.
Graves began to walk across the parking lot, away from the scene.
A fellow officer motioned to Collins that he should stop Graves.
Collins got out of his car as Graves was walking towards him.
Collins asked if he could speak with Graves when they were still
some distance apart. Graves had his right hand in the pocket of
the jacket he wore. Concerned for his safety, Collins asked
Graves to remove his hand from his pocket. Graves hesitated for a
moment, but then removed his hand. Immediately, Collins noticed
that Graves carried something heavy in the pocket. Collins saw
that the lightweight jacket Graves wore was being stretched down
by the weight of the object. Believing the object to be a gun,
Collins explained to Graves that he was not under arrest, but that
Collins needed to pat him down for weapons. Graves objected and
then tried to run away. Collins then grabbed Graves' right arm
and handcuffed him with the assistance of another officer.
Collins found a loaded pistol in Graves' pocket.
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ANALYSIS
Collins' meeting with Graves began as a consensual encounter.
When Collins first saw Graves he said, "Hey, how are you doing"
and asked if he could speak to Graves for "just a second." Graves
continued to walk towards the police officer.
A law enforcement officer does not implicate
the Fourth Amendment by approaching a
citizen in a public place for the purpose of
asking the individual his name and address.
Furthermore, a consensual encounter between
the police and a citizen becomes a seizure
for Fourth Amendment purposes "only if, in
view of all the circumstances surrounding
the incident, a reasonable person would have
believed that he was not free to leave." In
order for a seizure to occur, the police
must restrain a citizen's freedom of
movement by the use of physical force or
show of authority.
Ford v. City of Newport News, 23 Va. App. 137, 141-42, 474
S.E.2d 848, 850 (1996) (citations omitted); see also United
States v. Mendenhall, 446 U.S. 544, 554-55 (1980) (holding that
Fourth Amendment rights are not implicated by consensual
encounters between citizens and the police). Collins did not
block Graves' departure, command him to stop or draw his weapon.
Graves did not respond to Collins' initial questions and
continued to walk towards the officer with his hand in his
pocket. Concerned for his safety, Collins asked Graves to
remove his hand from his pocket. Graves hesitated, increasing
Collins' belief that Graves carried a weapon. When Graves
removed his hand, Collins could see that the object in Graves'
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pocket was heavy and bulky. Collins then told Graves that he
needed to pat him down to check for weapons.
It is not unreasonable for a police officer to
conduct a limited pat-down search for weapons
when the officer can point to "specific and
articulable facts" "which reasonably lead[] him
to conclude, in light of his experience, that
'criminal activity may be afoot' and that the
suspect 'may be armed and presently dangerous.'"
James v. Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90,
92 (1996) (quoting Lansdown v. Commonwealth, 226 Va. 204,
209, 308 S.E.2d 106, 110 (1983) (quoting Terry v. Ohio, 392
U.S. 1, 30 (1968))).
"An officer is entitled to view the circumstances
confronting him in light of his training and experience . . . ."
Id. Among the circumstances to be considered in such situations
are
"the 'characteristics of the area' where the
stop occurs, the time of the stop, whether
late at night or not, as well as any
suspicious conduct of the person accosted
such as an obvious attempt to avoid officers
or any nervous conduct on the discovery of
their presence[,]" . . . [and] the character
of the offense which the individual is
suspected of committing . . . .
Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87
(1987) (quoting United States v. Bull, 565 F.2d 869, 870-01 (4th
Cir. 1977)).
In light of the police dispatch of illegal drug activity in
a known high-crime area, appellant's hesitance in removing his
hand from his pocket, and Collins' subsequent observation that
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a heavy object was located in appellant's jacket, the officer
"had specific and articulable facts giving rise to the
reasonable belief appellant 'might be armed and dangerous.'"
Welshman v. Commonwealth, 28 Va. App. 20, 35, 502 S.E.2d 122,
129 (1998). As a result, Collins properly performed a pat-down
search of Graves. Accordingly, the decision of the trial court
is affirmed.
Affirmed.
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Benton, J., dissenting.
"The right of the people to be secure in their persons,
. . . and effects, against unreasonable searches and seizures,
shall not be violated . . . ." U.S. Const. amend. IV. "The
Fourth Amendment applies to all seizures of the person,
including seizures that involve only a brief detention short of
traditional arrest." United States v. Brignoni-Ponce, 422 U.S.
873, 878 (1975). "In a long line of cases, [the United States
Supreme] Court has stressed that 'searches conducted outside the
judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment -- subject
only to a few specifically established and well delineated
exceptions.'" Thompson v. Louisiana, 469 U.S. 17, 19-20 (1984)
(citation omitted).
"While law enforcement officers may engage in consensual
encounters with citizens, the Supreme Court has limited such
encounters to those in which 'a reasonable person would feel
free "to disregard the police and go about his business."'"
Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27
(2000) (citation omitted).
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 (1991)); see also Richards v.
Commonwealth, 8 Va. App. 612, 615, 383
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S.E.2d 268, 270 (1989). Such encounters
. . . remain consensual "as long as the
citizen voluntarily cooperates with the
police." Wilson, 953 F.2d at 121. Fourth
Amendment scrutiny is triggered, however,
the moment an encounter "'loses its
consensual nature.'" Id. (quoting Florida
v. Bostick, 501 U.S. 429, 434 (1991)).
Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870
(1992).
At its most fundamental level, a consensual encounter only
occurs when a person approached by the police has "the ability
to ignore the police and to walk away from them." Wilson, 953
F.2d at 122. Clearly then, when a person rebuffs a police
officer's attempt at a consensual encounter, that action
standing alone evinces a lack of consent. Any resulting
detention is a seizure that implicates constitutional
requirements. Moreover, when the existence or validity of any
consent is at issue, "the State has the burden of proving that
the necessary consent was obtained and that it was freely and
voluntarily given." Florida v. Royer, 460 U.S. 491, 497 (1983).
"This burden cannot be discharged by showing no more than
acquiescence to a claim of lawful authority." Bumper v. North
Carolina, 391 U.S. 543, 548-49 (1968).
The majority opinion misperceives the nature of the
encounter when it states the encounter began consensually. The
testimony of the officer who stopped Reginald Leon Graves
clearly established that Graves merely happened to be walking
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near an area where the police had detained other persons. He
described the initial detention as follows:
I was dispatched -- there were several
units dispatched to the area . . . in
reference to several . . . subjects standing
on the corner using and/or selling
narcotics. When I arrived to that location
to investigate -- the other officer had
arrived prior to my arrival, and he was
engaged in a conversation with several of
the subjects. At that time, I took up a
position in the parking lot just to observe
because it appeared that they had everything
under control.
As I sat in the parking lot, Officer
Matthews motioned to me to stop a subject
who was walking through the parking lot
towards my location, subsequently identified
as Mr. Graves.
The officer then approached and detained Graves. The fact
that he subjectively wanted to engage Graves in a consensual
encounter did not make it so. Graves' conduct clearly
demonstrates that he did not consent to the encounter. Graves
continued to walk as the officer spoke to him. The officer
"[did not] recall if [Graves] stopped" as he called to Graves.
Thus, the evidence established no indication of Graves'
willingness to stop and converse with the officer.
When the officer commanded Graves to remove his hand from
his pocket, Graves hesitantly did so but resisted when the
officer told him that he "needed to pat him down for weapons."
The officer testified that "Graves took several steps backwards
and stated, 'For What? You're not touching me.'" The officer
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then grabbed Graves' arm. If there could be any doubt that the
detention was not consensual, this evidence undisputedly proves
that when the officer gave these commands and met resistance the
encounter was not consensual.
The Fourth Amendment protects a person's privacy from
unreasonable interference by the police, even when the police
seek only to engage in a brief stop and questioning concerning a
person's identity. Brignoni-Ponce, 422 U.S. at 878. Indeed,
the principle is well settled that "while the police have the
right to request citizens to answer voluntarily questions
concerning unsolved crimes they have no right to compel them to
answer." Davis v. Mississippi, 394 U.S. 721, 727 n.6 (1969).
Terry v. Ohio, 392 U.S. 1, 19 (1968), teaches that "[o]nce a
citizen withdraws his consent to further questioning by the
police, the reasonableness of any subsequent 'governmental
invasion of a citizen's personal security' is gauged by the
Fourth Amendment." Wilson, 953 F.2d at 121.
The evidence proved the officer detained Graves in a "Terry
stop" without the necessary articulable facts supporting a
reasonable suspicion that Graves had committed a criminal
offense, was engaging in a criminal offense, or was about to
engage in a criminal offense. "[A] reasonable suspicion [is
one, which must be] based on objective facts, that the
individual is involved in criminal activity." Brown v. Texas,
443 U.S. 47, 51 (1979). "A reasonable suspicion is more than an
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'unparticularized suspicion or "hunch."'" Bass v. Commonwealth,
259 Va. 470, 475, 525 S.E.2d 921, 923 (2000) (quoting Terry, 392
U.S. at 27).
The detention was unlawful because the evidence fails to
establish a reasonable suspicion that Graves had any connection
to criminal activity. The officer's testimony proved only that
Graves was walking in a neighborhood known for crime, that he
had a heavy object in one of his pockets, that he hesitated to
take his hand out of that pocket, and that he refused to show
the object to the officer. These facts fail to establish a
reasonable suspicion of criminal activity.
Graves' hesitation demonstrates only his lack of consent.
Indeed, he more stridently manifested his lack of consent when
he said "You're not touching me." I disagree with the
majority's suggestion that Graves' refusal qualifies as an
"obvious attempt to avoid officers or [as] nervous conduct on
the discovery of their presence." Williams v. Commonwealth, 4
Va. App. 53, 67, 354 S.E.2d 79, 87 (1987). This lack of consent
cannot provide the officer with a reason to search Graves.
Otherwise, citizens would face a Catch-22 situation in which
their refusal to consent to a search forms the basis for a
reasonable suspicion that they are engaged in criminal activity.
The officer claimed he wanted to search Graves because he
feared for his safety. The Commonwealth asserts that a
reasonable officer would fear being shot in this situation. No
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evidence proved, however, that Graves threatened the officer.
Graves merely walked across the parking lot and was detained by
the officer. The officer could not reasonably suspect that an
individual walking through a neighborhood with an unknown object
in his pocket wanted to shoot a police officer. No evidence
connected Graves to the men the officers had detained. Graves'
conduct indicated only that he was passing through the area. He
was free to ignore the officers, who had detained other men, and
walk away.
That Graves was walking in a neighborhood while the police
were detaining suspected drug users was not a basis for
concluding that Graves was engaged in criminal conduct. See
Brown, 443 U.S. at 52. Reasonable suspicion is more than a mere
hunch. Bass, 259 Va. at 477-78, 525 S.E.2d at 925.
When the officers detained appellant for
the purpose of requiring him to identify
himself, they performed a seizure of his
person subject to the requirements of the
Fourth Amendment. . . . The Fourth
Amendment, of course, "applies to all
seizures of the person, including seizures
that involve only a brief detention short of
traditional arrest. '[W]henever a police
officer accosts an individual and restrains
his freedom to walk away, he has "seized"
that person,' and the Fourth Amendment
requires that the seizure be 'reasonable.'"
Brown, 443 U.S. at 50 (citations omitted).
I would hold that at the moment Graves ignored the
officer's inquiry and continued on his path, he demonstrated his
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refusal to engage in a consensual encounter. His subsequent
words and conduct reinforced his lack of consent.
In this context, freedom to leave means
fundamentally the freedom to break off
contact, in which case officers must, in the
absence of objective justification, leave a
[person] alone. [Graves] possessed at a
minimum the right to refuse to speak with
the officers, who in turn possess no right
to detain citizens who decline to talk or
otherwise identify themselves. . . . To
hold otherwise would begin to transform this
free society into one where [persons] must
present papers or proffer explanations to be
on their way.
United States v. Flowers, 912 F.2d 707, 712 (4th Cir. 1990)
(citation omitted).
For these reasons, I would hold that the resulting search
was violative of the Fourth Amendment. Therefore, I would
reverse the conviction and dismiss the indictment.
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