COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
APRIL DARNELL EDGECOMBE
MEMORANDUM OPINION * BY
v. Record No. 1127-99-2 JUDGE JAMES W. BENTON, JR.
APRIL 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
April Darnell Edgecombe conditionally pled guilty to
possession of cocaine with intent to distribute, reserving the
right to appeal the trial judge's denial of her motion to
suppress. On appeal, she contends the evidence proved her
"consent" to a search was the product of an unlawful seizure. For
the reasons that follow, we reverse the conviction.
I.
On our review of a trial judge's denial of a motion to
suppress, we view the evidence in the light most favorable to the
Commonwealth. See Commonwealth v. Grimstead, 12 Va. App. 1066,
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1067, 407 S.E.2d 47, 48 (1991). So viewed, the evidence, which
consisted solely of Edgecombe's testimony, proved that Edgecombe
arrived in the City of Richmond by bus, walked through the bus
terminal, and entered an automobile. The driver, whom she
expected to be waiting for her, drove Edgecombe toward her home.
One block from Edgecombe's home, the driver parked the automobile.
From a vehicle that had been following them from the bus station,
a man approached the passenger side of the automobile where
Edgecombe was sitting. The man put a badge against the window,
identified himself as a police detective, and said he wanted to
speak to Edgecombe. He told Edgecombe that he was from the
narcotics division, that he was "trying to stop the flow of
narcotics," that he had been "informed . . . that [she had] been
trafficking drugs," and that he "would like to talk to [her]."
Edgecombe opened the door, put her feet on the curb, and was
about to stand, when the detective said, "you don't have to do
that." The detective, who was six feet tall and "350 pounds," was
standing at the edge of the door. Edgecombe said she "did not
have a choice . . . [and] could not have stood up, if [she] wanted
to, with [the detective] standing there." She remained seated.
During this encounter, another officer stood on a nearby
driveway and a third officer remained in their vehicle. The
detective questioned Edgecombe about her travel, asked for
identification, and asked where she lived. The detective inquired
about the luggage and "said could he check [her] bags." She
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testified that "from the way he was talking," she did not feel she
could refuse. She gave him the bags. The detective asked whether
she had narcotics. When she denied having narcotics, he put the
bag on the top of the automobile and searched it. After the
detective searched the bag, "he told [her], . . . okay, now you
can stand up."
Edgecombe testified that she then stood up but did not feel
she could walk away. She said "he wanted to search [her]." She
testified she told him that he could search her because "he [had]
said that they had been informed that [she] had been trafficking
drugs into the state, so [she] figured if [she] told him no he
couldn't search [her], he would get a search warrant anyway." The
detective "proceeded and searched [her]" by patting her jacket and
searching her pockets. The detective then called for the female
officer, who continued the search and found cocaine in Edgecombe's
waistband.
Noting that Edgecombe was "probably the most candid and
basically honest witness [he had] heard from the stand in regard
to searches," the trial judge found that she consented to the
search, and he denied the motion to suppress. After conditionally
pleading guilty, Edgecombe appealed.
II.
Our standard of review is well settled.
"Ultimate questions of reasonable suspicion
and probable cause to make a warrantless
search" involve questions of both law and
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fact and are reviewed de novo on appeal. In
performing such analysis, we 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. We analyze a trial
judge's determination whether the Fourth
Amendment was implicated by applying de novo
our own legal analysis of whether based on
those facts a seizure occurred.
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc) (citation and footnote omitted).
As we held in McGee, "when a police officer confronts a
person and informs the [person] that he or she has been
specifically identified as a suspect in a particular crime which
the officer is investigating, that fact is significant among the
'totality of the circumstances' to determine whether a
reasonable person would feel free to leave." 25 Va. App. at
200, 487 S.E.2d at 262. The evidence in this case proved that
the detective confronted Edgecombe, told her she was the subject
of their investigation, and said he had been informed she was
trafficking drugs into Virginia. The detective positioned
himself at the automobile's door in such a manner that Edgecombe
could not stand. In addition, he verbally stopped her as she
attempted to leave the automobile. Edgecombe specifically
testified that the manner in which he spoke to her conveyed the
unmistakable message that she could not leave. As further
evidence that Edgecombe's freedom to move had been curtailed,
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the record established that after the detective searched her
bag, he announced "okay, now you can stand up." During the
encounter two other officers were present. This evidence
supports the conclusion that the detective seized Edgecombe
during the encounter.
The record contains no evidence which proves that the
detective had a reasonable articulable suspicion to believe
Edgecombe was engaging in or about to engage in criminal
activity. Absent that evidence, the detention was unlawful.
See Gilpin v. Commonwealth, 26 Va. App. 105, 110-11, 493 S.E.2d
393, 396 (1997); McGee, 25 Va. App. at 202-03, 487 S.E.2d at
263-64. Moreover, "[b]ecause the seizure of [Edgecombe] was
unlawful, the cocaine that was obtained from [her] in the
'consent' search should have been suppressed as 'fruit of the
poisonous tree.'" Id. at 203, 487 S.E.2d at 264. Accordingly,
we reverse the conviction.
Reversed.
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