COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Coleman ∗
Argued at Richmond, Virginia
STACIE LYNN REID
MEMORANDUM OPINION ∗∗ BY
v. Record No. 0557-00-2 JUDGE SAM W. COLEMAN III
MARCH 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
David F. Berry, Judge Designate
Anthony Paone, II (Law Offices of Darvin E.
Satterwhite, on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Stacie Lynn Reid was convicted in a bench trial of
possession of cocaine. On appeal, Reid argues that the trial
court erred by denying her motion to suppress because the
cocaine was seized as the result of an unlawful search of her
purse. She further contends that the evidence was inadmissible
because the officers unlawfully detained her and the driver of
the vehicle in which she was riding by failing to release the
∗
Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
∗∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
driver "forthwith" as required by Code § 19.2-74. We disagree
and affirm the judgment of the trial court.
BACKGROUND
Shortly after 9:00 p.m. on May 22, 1998, Goochland County
Deputy Sheriff James Mann, while on routine patrol, drove
through a convenience store parking lot and observed Kevin
Michie standing beside a gas pump. Mann knew Michie to be a
person who had previously been convicted of weapons, drug, and
assault offenses. Mann waited in his vehicle until Michie got
into his pickup truck and drove away, and then, Mann followed
Michie. Thinking that Michie "might" possess drugs, Mann
followed him, hoping to "find probable cause on which to stop
him." Mann testified that he paced Michie's vehicle for several
miles and observed Michie exceeding the 65 m.p.h. speed limit on
Interstate 64.
Mann stopped the vehicle and informed Michie that he had
exceeded the speed limit. At that point, Chief Deputy Don
Bewkes, who heard on his police radio that Mann had stopped
Michie, arrived at the scene. Bewkes approached the
passenger-side door of Michie's pickup truck where the
defendant, Stacie Reid, was sitting. Bewkes noticed that the
pickup truck displayed a rejection sticker rather than a valid
inspection sticker. Mann informed Michie that he would issue a
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warning for his exceeding the speed limit and a summons for the
rejection sticker.
Michie signed the summons, and Mann returned Michie's
driving permit and registration card. Mann then asked Michie if
he had any firearms, drugs, or contraband in his truck. Michie
responded that he did not. Mann asked Michie for permission to
search the truck, and Michie refused. Chief Deputy Bewkes then
told Mann that because the vehicle did not have a proper
inspection sticker, the vehicle could be towed. Michie
responded that, if they were going to tow the vehicle, the
deputies could search it. At that point Michie and Reid exited
the vehicle and the deputies "patted [them] down" for "officer
safety."
Mann then requested permission from Reid to search her
purse for weapons. Reid consented to the search. Inside the
purse, Mann found a small zippered pouch which he described as
large enough to hold a penknife. Mann manipulated the pouch
from the outside and felt a hard, metallic object. Mann
testified that, based on his training and experience in
investigating drug cases, the object felt like a device used for
smoking drugs. Mann opened the pouch and found a brass pipe.
Reid admitted that the pipe was hers and that it was used to
smoke marijuana. Mann also found a partially burned marijuana
cigarette in Reid's purse. The smoking pipe was seized and
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analyzed for drugs; it was found to contain cocaine residue.
Reid was charged with possession of marijuana 1 and possession of
cocaine.
Michie testified that he observed Deputy Mann following him
before being stopped and that he was not speeding. Michie
stated that Mann did request to search the truck and he refused
to give permission. Michie testified that he later gave Mann
permission to search the truck, but only after Mann and Bewkes
discussed having the vehicle towed if Michie withheld
permission. Michie testified that Mann never patted him down.
Michie stated that after Mann searched the truck, Mann
approached Reid, removed her purse from her shoulder, and told
her that he needed to search the purse. Michie testified that
Mann never asked Reid for permission to search her purse.
Michie acknowledged that Mann told Reid that he had found the
pipe.
Reid filed a motion to suppress the evidence consisting of
the pipe and cocaine residue on the ground that it was illegally
seized in violation of the Fourth Amendment, and she further
objected to the admissibility of the evidence based on its being
seized after the officers violated Michie's rights in violation
of Code § 19.2-74. Code § 19.2-74 provides that whenever any
1
The misdemeanor possession of marijuana charge was
dismissed.
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person is detained for a misdemeanor or an offense for which no
jail sentence could be imposed, the officer shall issue a
summons and upon the person's written promise to appear, the
officer "shall forthwith release him from custody." Reid argues
that Mann's failure to forthwith release Michie from custody
resulted in her being illegally detained and the pipe and drug
residue being illegally seized. The trial court denied the
motion to suppress and overruled Reid's objection to the
admissibility of the evidence, finding that she voluntarily
consented to the search of her purse.
ANALYSIS
When we review a trial court's denial of a motion to
suppress, "[w]e view the evidence in a light most favorable to
. . . the prevailing party below, and we grant all reasonable
inferences fairly deducible from that evidence." 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) (citing Ornelas v. United States, 517 U.S. 690,
699 (1996)). "However, we consider de novo whether those facts
implicate the Fourth Amendment and, if so, whether the officers
unlawfully infringed upon an area protected by the Fourth
Amendment." Hughes v. Commonwealth, 31 Va. App. 447, 454, 524
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S.E.2d 155, 159 (2000) (en banc) (citing McGee, 25 Va. App. at
198, 487 S.E.2d at 261). The trial judge expressly ruled that
he found "no reason to doubt the credibility of the officers in
this case." Thus, we resolve any conflict in the evidence in
favor of the Commonwealth.
"A warrantless search is per se
unreasonable and violative of the Fourth
Amendment of the United States Constitution,
subject to certain exceptions." Tipton v.
Commonwealth, 18 Va. App. 370, 373, 444
S.E.2d 1, 3 (1994) (citation omitted).
However, searches made by law enforcement
officers pursuant to a valid consent to
search do not implicate the Fourth
Amendment. See Schneckloth v. Bustamonte,
412 U.S. 218, 222, 93 S. Ct. 2041, 2045, 36
L. Ed. 2d 854 (1973); Iglesias v.
Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d
170, 173 (1988) (en banc). When relying
upon consent as the justification for a
search, the Commonwealth must prove, based
upon the totality of the circumstances, that
the consent was freely and voluntarily
given. See Bumper v. North Carolina, 391
U.S. 543, 548, 88 S. Ct. 1788, 1792,
20 L. Ed. 2d 797 (1968); Hairston v.
Commonwealth, 216 Va. 387, 388, 219 S.E.2d
668, 669 (1975); Commonwealth v. Rice,
28 Va. App. 374, 378, 504 S.E.2d 877, 879
(1998).
Hughes, 31 Va. App. at 454, 524 S.E.2d at 159. "[W]hether a
consent to a search was in fact 'voluntary' or was the product
of duress or coercion, express or implied, is a question of fact
to be determined from the totality of all the circumstances."
Schneckloth, 412 U.S. at 227.
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Although Deputy Mann acknowledged that he began following
Michie in hopes of "find[ing] probable cause on which to stop
him" because he "believed" that Michie "might" possess drugs,
Mann's subjective intent is of no consequence if, in fact, the
deputy observes conduct that constitutes probable cause to
believe that a crime or traffic offense has been committed.
Here, the trial judge accepted as fact Deputy Mann's testimony
that he observed Michie's truck speeding. Thus, Mann lawfully
stopped Michie's vehicle after having determined that Michie was
exceeding the speed limit. See Whren v. United States, 517 U.S.
806, 813 (1996) (finding that "[s]ubjective intentions play no
role in ordinary, probable-cause Fourth Amendment analysis").
While investigating the speeding violation, Mann was alerted to
the fact that the vehicle displayed a rejection sticker.
Mann decided to give Michie a warning for the speeding
violation and to issue him a summons for driving the truck with
a rejection sticker. After Mann returned Michie's driver's
license and registration card, he asked Michie if he had any
contraband, drugs, or firearms in the vehicle. See Ohio v.
Robinette, 519 U.S. 33, 39-40 (1996) (holding that consensual
encounter may begin after legitimate detention has ended even if
detainee is not told he is "free to go"). Mann requested
permission from Michie to search the truck, which Michie
initially denied. Only after Deputies Mann and Bewkes discussed
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having the truck towed did Michie grant Mann permission to
search the truck. Cf. Reittinger v. Commonwealth, 260 Va. 232,
236-37, 532 S.E.2d 25, 27-28 (2000) (holding that defendant was
unlawfully seized where, after officer completed lawful traffic
stop and informed defendant he was free to go, officer requested
permission three times to search defendant's vehicle). 2
After Michie consented to a search of his truck, Mann asked
Michie and Reid to get out of the vehicle. Mann requested and
received permission from Michie and Reid to conduct a pat-down
search for weapons of each of them. Noticing that Reid had
removed her purse from the vehicle, Mann requested permission to
search it for weapons and Reid consented to the search. Upon
searching Reid's purse, Mann found a small zippered pouch large
enough to hold a penknife. Upon feeling the pouch, Mann felt an
object that he readily identified as a device suitable for
smoking drugs. Believing that the object was contraband, Deputy
Mann lawfully removed the item from the pouch. See Minnesota v.
Dickerson, 508 U.S. 366, 375-76 (1993) (finding that the same
practical considerations justifying a warrantless seizure under
the "plain view" doctrine apply to a warrantless seizure under
the "plain feel" doctrine); see also Pierson v. Commonwealth,
2
Whether Michie voluntarily consented to a search of his
truck is not dispositive or germane to the issues before us in
Reid's appeal.
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16 Va. App. 202, 205, 428 S.E.2d 758, 760 (1993) (upholding
search for weapons of small velvet pouch, "just large enough to
hold an ordinary teabag," as reasonable where officer observed
suspicious and furtive conduct by passenger in trying to secrete
the pouch).
Here, the evidence supports the trial judge's finding that
Reid voluntarily consented to the search of her purse. When Mann
requested permission to search her purse, there was no show of
force or claim of legal right or authority to search the purse
absent consent; Mann did not threaten Reid, and the record does
not show that Reid was deceived as to the deputy's purpose. See
generally Limonja v. Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d
476, 480-81 (1989) (en banc) (stating that police need not warn
the suspect that he has a right to refuse the search, but the
suspect's knowledge of his right to refuse is a factor in
considering the totality of the circumstances). The fact that
Reid's consent to search the purse may have been influenced by
her belief that if she withheld consent the deputies would tow
Michie's truck and leave her stranded on Interstate 64 does not
render her consent legally involuntary.
Regardless of whether the officers had authority to tow and
impound Michie's truck or otherwise prevent him from driving the
vehicle because the vehicle displayed a rejection sticker, Reid
remained free to leave the area and, thus, she was not
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unlawfully seized. A person is "seized" under the Fourth
Amendment "only if, in view of all of the circumstances
surrounding an incident, a reasonable person would have believed
that [she] was not free to leave." Mendenhall v. United States,
446 U.S. 544, 554 (1980) (plurality opinion). "In order for a
seizure to occur, an individual must be under some physical
restraint by an officer or have submitted to the show of police
authority." Thomas v. Commonwealth, 24 Va. App. 49, 54, 480
S.E.2d 135, 137 (1997) (en banc) (citing California v.
Hodari D., 499 U.S. 621, 626 (1991)). See also Rettinger, 260
Va. at 236, 532 S.E.2d at 27 (stating that whether a person is
seized in violation of the Fourth Amendment is reviewed de novo
on appeal). "'[T]he test for existence of a "show of authority"
is an objective one: not whether the citizen perceived that
[she] was being ordered to restrict [her] movement, but whether
the officer's words and actions would have conveyed that to a
reasonable person.'" Wallace v. Commonwealth, 32 Va. App. 497,
503, 528 S.E.2d 739, 741 (2000) (quoting Hodari D., 499 U.S. at
628).
Among the factors to be considered in
determining whether a reasonable person
under the circumstances would have believed
he or she was not free to ignore the request
of the officer are: "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
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indicating that compliance with the
officer's request might be compelled."
Weathers v. Commonwealth, 32 Va. App. 652, 659-60, 529 S.E.2d
847, 850-51 (2000) (emphasis added) (quoting Mendenhall, 446
U.S. at 554).
Here, the officers did not, by their words or actions,
convey a message that Reid was not free to leave by asking her
to exit the vehicle in order to facilitate a search of the
truck. They in no way indicated to Reid that if the vehicle was
towed that she would be detained or would not be free to go.
Irrespective of their authority to detain Michie, in the absence
of his willingness to remain, regardless of the situation as it
pertained to Michie, the officers did not prevent Reid from
leaving and they exercised no legal restraint of her that was
not consensual. Although Reid may have been confronted with
undesirable or inconvenient options if she chose to leave the
scene when the officers searched Michie's truck, or if the
officers had towed the truck or otherwise prevented Michie from
driving away, Reid was under no legal restraint or compulsion to
remain at the scene. Under these circumstances, a reasonable
person would have believed the officers had no legal right to
detain her and that she was free to terminate the encounter,
even though as a practical matter she might not wish to pursue
that course. Accordingly, the trial court did not err by finding
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that Reid voluntarily consented to the search of her purse and in
denying Reid's motion to suppress.
Reid's contention that the evidence was inadmissible because
the officer did not release Michie "forthwith" as required by Code
§ 19.2-74 after issuing the summons is without merit. We have
stated that "'[h]istorically, searches or seizures made contrary
to provisions contained in Virginia statutes provide no right of
suppression unless the statute supplies that right.'" Troncoso v.
Commonwealth, 12 Va. App. 942, 944, 407 S.E.2d 349, 350 (1991)
(citations omitted); see also Taylor v. Commonwealth, 28 Va. App.
638, 641, 507 S.E.2d 661, 663 (1998) (stating that alleged
violation of Code § 19.2-59.1 does not provide basis for
suppression of illegally obtained evidence); Webber v.
Commonwealth, 26 Va. App. 549, 560-61, 496 S.E.2d 83, 88 (1998)
(applying same principle to alleged violation of Code § 19.2-80);
Janis v. Commonwealth, 22 Va. App. 646, 651, 472 S.E.2d 649,
651-52 (applying same principle to alleged violation of Code
§ 19.2-54), aff'd on reh'g en banc, 23 Va. App. 696, 479 S.E.2d
534 (1996). Therefore, assuming that Deputy Mann violated Code
§ 19.2-74 by requesting permission to search the truck and by
failing to release Michie "forthwith" after issuing the summons,
and, assuming further that Reid could properly challenge such a
violation, the statutory violation would not provide a basis for
which to exclude the evidence.
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Accordingly, we affirm the trial court's denial of Reid's
motion to suppress and her challenge to the admissibility of the
evidence based on a violation of Code § 19.2-74. We, therefore,
affirm.
Affirmed.
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