COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Kulp*
Argued at Richmond, Virginia
JOHN CARLTON CARTER, JR.
MEMORANDUM OPINION ** BY
v. Record No. 2445-98-2 JUDGE ROBERT J. HUMPHREYS
AUGUST 22, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge
John W. Luxton (Morchower, Luxton & Whaley,
on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
John C. Carter, Jr. ("Carter") complains that the trial
court erred in failing to suppress evidence seized following a
search of his person by a Henrico County police officer. For
the reasons that follow, we affirm the decision of the trial
court.
I. BACKGROUND
On December 12, 1997 at approximately 2:20 p.m.,
Investigator Richard Palkovitz was traveling southbound on
*
Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying § 17-116.01.
**
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Laburnum Avenue in Henrico County when a vehicle operated by
Carter pulled out from Delmont Street, across Laburnum, and
stopped, partially blocking the traffic lane occupied by
Palkovitz, who was forced to brake abruptly and narrowly avoided
a collision with Carter's vehicle.
Palkovitz approached Carter's vehicle, requested Carter's
driver's license and registration and returned to his vehicle to
write a summons. Carter remained in his vehicle during this
time.
Palkovitz determined by radio that Carter was not wanted
for any outstanding criminal warrants but did have a prior
criminal drug history. Officer Kita Brown then arrived on the
scene and advised Palkovitz that she had just seen Carter
standing with a group on a "high drug corner" in Essex Village,
an area known for serious problems with guns and drugs. Brown
told Palkovitz that as she drove by the corner, Carter "made
kind of quick, nervous glancing views at her."
After receiving this information, Palkovitz returned to
Carter's vehicle and asked him to get out of the car. He then
returned Carter's license and registration and asked Carter to
sign the summons.
After Carter signed the summons, Palkovitz started talking
to him about the problem of guns and drugs in Essex Village.
Carter denied that he was carrying either drugs or weapons.
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Palkovitz then asked if he could search Carter, and Carter
responded by raising his arms and saying, "[G]o ahead."
Upon searching Carter, Palkovitz found a wad of folded
currency totaling $796 in Carter's front pants pocket. Inside
the folded currency, Palkovitz discovered a plastic baggie
containing what he suspected to be, and which a scientific
analysis proved to be, heroin.
Palkovitz testified that he instructed Carter to step out
of his vehicle because, based upon the information he received
from Officer Brown and Carter's prior drug history, he wanted to
satisfy himself that there were no bulges in Carter's clothing
which might suggest he was armed. Palkovitz further testified
that he intended to ask Carter for consent to search, that he
did not draw his own weapon, and that his vehicle's emergency
lights were not activated at the time he returned Carter's
license and registration to him.
II. ANALYSIS
When we review a trial court's denial of a suppression
motion, "[w]e review 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).
While we are bound to review de novo the ultimate questions of
reasonable suspicion and probable cause, we "review findings of
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historical fact only for clear error 1 and . . . give due weight
to inferences drawn from those facts by resident judges and
local law enforcement officers." Ornelas v. United States, 517
U.S. 690, 699 (1996) (footnote added).
"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, 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) (citation omitted).
Carter concedes that Palkovitz had the authority to ask him
to step out of his car during the traffic stop. See
Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), and Welshman v.
Commonwealth, 28 Va. App. 20, 32, 502 S.E.2d 122, 127-28 (1998).
He argues, however, that the request was improper because
Palkovitz made his request after the summons was written and
signed.
Here, the purpose of the stop was the citation of Carter
for a traffic offense. A consensual encounter can follow a
1
"In Virginia, questions of fact are binding on appeal
unless 'plainly wrong.'" McGee v. Commonwealth, 25 Va. App. 193,
198 n.1, 487 S.E.2d 259, 261 n.1 (1997) (en banc) (citations
omitted).
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legitimate detention. See United States v. Rusher, 966 F.2d
868, 877 (4th Cir. 1992). 2 While a detention
usually must last no longer than is
necessary to effectuate the purpose of the
stop . . . lengthening the detention for
further questioning beyond the initial stop
is permissible in two circumstances. First,
the officer may detain the driver for
questioning unrelated to the initial stop if
he has an objectively articulable suspicion
that illegal activity has occurred or is
occurring. Second, further questioning
unrelated to the initial stop is permissible
if the initial detention has become a
consensual encounter.
United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999)
(citations omitted). Without some indicated restraint, mere
questioning by officers when a routine traffic stop is over and
its purpose served, does not amount to a seizure under the
Fourth Amendment. See United States v. Sullivan, 138 F.3d 126,
131 (4th Cir. 1998).
2
Recently, in Reittinger v. Commonwealth, ___ Va. ___, ___
S.E.2d ___ (2000), the Supreme Court of Virginia held that the
police unlawfully seized the defendant following their
investigation of a traffic infraction. There, the Court's
opinion focused on the following factors in determining that the
defendant was illegally detained: (1) the deputy sheriffs
stopped the defendant in a rural area at nighttime, (2) two
armed deputies, one on each side of the defendant's vehicle,
confronted him, and (3) one deputy asked the defendant for
consent to search three times. See id. at ___, ___ S.E.2d at
___. At a minimum, factors (1) and (3) are not present in
Carter's case. Accordingly, we disagree with the dissent and
find that Reittinger is not controlling in this case. Nor do we
believe that Reittinger was intended to eviscerate the basic
principle that a consensual search can follow a legitimate
detention, in light of the Supreme Court's refusal in Ohio v.
Robinette, 519 U.S. 33 (1996), to adopt a per se rule
prohibiting such encounters.
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Further, "not all personal intercourse between policemen
and citizens involves 'seizures' of persons. Only when the
officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may we conclude
that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19
n.16 (1968). A Terry stop occurs "only if, in view of all of
the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave." United
States v. Mendenhall, 446 U.S. 544, 554 (1980). "As long as the
person to whom questions are put remains free to disregard the
questions and walk away, there has been no intrusion upon that
person's liberty or privacy as would under the Constitution
require some particularized and objective justification." Id.
As the Commonwealth notes, the facts of this case are
virtually identical to those found in Ohio v. Robinette, 519
U.S. 33 (1996), where the United States Supreme Court held that
a consensual encounter may immediately follow the issuance of a
traffic summons without violating the Fourth Amendment. In
Robinette, the Supreme Court rejected a bright line rule that
would have required police officers to advise citizens stopped
for traffic offenses that they were free to go before the
officers attempted to engage in consensual interrogations.
Rather, the Supreme Court held that "[t]he Fourth Amendment test
for a valid consent to search is that the consent be voluntary
and '[v]oluntariness is a question of fact to be determined from
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all the circumstances.'" Id. at 40. Here, the trial court
found that the search was consensual. Taking the evidence in
the light most favorable to the Commonwealth, which prevailed
below, we cannot say that this finding was erroneous.
Affirmed.
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Benton, J., dissenting.
"[S]topping an automobile and detaining its occupants
constitute a 'seizure' within the meaning of [the Fourth
Amendment], even though the purpose of the stop is limited and
the resulting detention quite brief." Delaware v. Prouse, 440
U.S. 648, 653 (1979). "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, ___ Va. ___, ___, ___
S.E.2d ___, ___ (2000) (citations omitted).
When the officer asked John C. Carter, Jr., to leave his
car to sign the summons, the officer did so only for the express
purpose of prolonging the encounter and delaying Carter's
departure. After Carter signed the summons, the officer did not
tell Carter he was free to leave. Instead, the officer
immediately began to interrogate Carter concerning narcotics.
He asked Carter if he "had any guns or drugs." Although the
reason for the initial stop had ended, the officer continued the
detention by making inquiries unrelated to the initial stop.
This inquiry concerning guns and drugs was an
unconstitutional extension of the original traffic stop.
The officer: "may request a driver's
license and vehicle registration, run a
computer check, and issue a citation. When
the driver has produced a valid license and
proof that he is entitled to operate the
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car, he must be allowed to proceed on his
way, without being subject to further delay
by police for additional questioning." Any
further detention for questioning is beyond
the scope of the Terry stop and therefore
illegal unless the officer has a reasonable
suspicion of a serious crime.
United States v. Rusher, 966 F.2d 868, 876-77 (4th Cir. 1992)
(citation omitted).
All further questioning by the officer after Carter signed
the summons was unlawful. Carter was not free to leave. When
the officer began interrogating Carter, he did not tell Carter
he could leave. The officer's immediate transition into the
inquiry was so seamless that a reasonable person would not have
believed the initial seizure had ended. See Florida v. Royer,
460 U.S. 491, 502-03 (1983).
[T]he events that transpired immediately
[after Carter signed the summons] . . .
would suggest to a reasonable person that
. . . [he or she was not free to leave]. We
do not think that a reasonable person, under
the circumstances, would have considered
that he was free to disregard the [officers]
and simply drive away.
Reittinger, ___ Va. at ___, ___ S.E.2d at ___.
An officer cannot satisfy these constitutional concerns by
simply testifying that the detainee was "free to go." If, as in
this case, the officer did not tell the person he was free to
leave and the officer's subsequent words or conduct conveyed a
contrary message, no reasonable person would consider that he or
she, having been detained by the officer, could simply go away.
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See id.; Royer, 460 U.S. at 502-03 (noting that Royer "was never
informed that he was free to board his plane if he so chose").
Therefore, because the officer had completed the traffic
investigation, I would hold that the inquiry concerning the
drugs and weapons unlawfully extended the seizure.
The officer lacked probable cause or a reasonable
articulable suspicion to detain Carter for this interrogation
and further inquiry. By his own testimony, the officer detained
Carter only to obtain "consent" to search. The officer's
actions subjected Carter to a new and unrelated inquiry under
circumstances such that a reasonable person would not have
believed the initial seizure had ended and that he or she was
free to leave. See Toliver v. Commonwealth, 23 Va. App. 34, 37,
473 S.E.2d 722, 724 (1996) (Benton, J., concurring). Moreover,
the principle is well established that an alleged consent
derived from a person illegally detained is invalid. See Royer,
460 U.S. at 507-08.
For these reasons, I would hold that the trial judge erred
in refusing to suppress the evidence. See Deer v. Commonwealth,
17 Va. App. 730, 736-37, 441 S.E.2d 33, 37-38 (1994).
Accordingly, I would reverse the conviction.
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