COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Bumgardner
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2111-97-3 JUDGE NELSON T. OVERTON
MARCH 19, 1998
RONALD M. PACHECO
FROM THE CIRCUIT COURT OF GILES COUNTY
Colin R. Gibb, Judge
Jeffrey S. Shapiro, Assistant Attorney
General (Richard Cullen, Attorney General;
Steven A. Witmer, Assistant Attorney General,
on brief), for appellant.
Stephanie G. Cox for appellee.
The Commonwealth of Virginia (appellant) appeals an order of
the Circuit Court of Giles County suppressing narcotics evidence
seized from Ronald Pacheco (appellee). Appellant contends the
trial court erroneously suppressed the evidence because: 1)
appellee was not seized and 2) even if he was seized the police
had probable cause to support the seizure. Because we find that
defendant was not seized but merely detained for purposes of a
brief investigatory search, we reverse and remand.
The parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, no recitation of the facts is necessary.
Appellant contends appellee was not seized for purposes of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the Fourth Amendment to the United States Constitution. There
are three types of "police-citizen" encounters under the Fourth
Amendment. "'First, there are communications between police
officers and citizens that are consensual and, therefore, do not
implicate the Fourth Amendment.' Second, are 'brief
investigatory stops' based upon 'specific and articulable facts,'
and third, are 'highly intrusive, full-scale arrests' based upon
probable cause." Payne v. Commonwealth, 14 Va. App. 86, 88, 414
S.E.2d 869, 869-70 (1992) (quoting Iglesias v. Commonwealth, 7
Va. App. 93, 99, 372 S.E.2d 170, 173 (1988)). This third
encounter occurs only when "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). Whether a person is free to leave,
therefore, is an objective standard. See Michigan v. Chesternut,
486 U.S. 567, 574 (1988).
"We adhere to the view that a person is seized only when, by
means of physical force or a show of authority, his freedom of
movement is restrained. Only when such restraint is imposed is
there any foundation whatever for invoking constitutional
safeguards." United States v. Martinez-Fuerte, 428 U.S. 543, 554
(1976)). In the instant matter, appellee was not seized so as to
require the police to show probable cause.
We believe the holding of the United States Supreme Court in
Maryland v. Wilson, 117 S. Ct. 882 (1997), largely controls
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disposition of this case. In Wilson, a car was stopped for a
traffic infraction and during a brief investigatory detention,
drugs were found and the occupants of the vehicle arrested. The
passenger challenged his removal from the vehicle as an
unreasonable seizure under the Fourth Amendment. The Court
balanced the danger to police officials during traffic stops
against the minimal additional intrusion to the passenger and
held that "an officer making a traffic stop may order passengers
to get out of the car pending completion of the stop." Id. at
886.
The instant matter is very similar. The officer had already
arrested the driver for driving with a suspended license and
obtained his permission to search the vehicle. Search of the
vehicle had not been completed, however, because a police dog had
not yet arrived. In order to minimize the danger to the officers
present, appellee was ordered to exit the vehicle, submit to a
search of his person and remain outside of the vehicle until
completion of the stop. Appellee's attempt to re-enter the
vehicle or leave with it was rightfully prohibited because police
officials had not finished searching it.
Because this brief, non-intrusive detention was not a full
seizure, we look to see whether there was reasonable suspicion to
support the stop in the first place. See Logan v. Commonwealth,
19 Va. App. 437, 441, 452 S.E.2d 364, 367 (1994). Law
enforcement officials must have a reasonable, articulable
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suspicion to stop a vehicle and investigate whether the motorist
is licensed, the vehicle is registered or there is some other
violation of the law occurring. See Gilpin v. Commonwealth, 26
Va. App. 105, 110, 493 S.E.2d 393, 395 (1997). See also Delaware
v. Proust, 440 U.S. 648, 663 (1979); Waugh v. Commonwealth, 12
Va. App. 620, 621, 405 S.E.2d 429, 429 (1991). This Court must
review questions of reasonable suspicion and probable cause de
novo, but questions of fact only for clear error. See McGee v.
Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997)
(en banc) (citing Ornelas v. United States, 116 S. Ct. 1657, 1663
(1996)). "The detaining officer 'must have a particularized and
objective basis for suspecting the particular person stopped of
criminal activity.'" Zimmerman v. Commonwealth, 234 Va. 609,
612, 363 S.E.2d 708, 709 (1988) (citations omitted).
The police initially pulled over appellee and his companion
for erratic driving behavior. The rear seat of the vehicle
contained women's clothes. Both appellee and his co-driver were
male. They claimed that they were from New York and bound for
Florida, yet the road upon which they traveled was not a direct
thoroughfare between those locations. The excuse they offered
for their detour through Narrows, Virginia was, while truthful,
suspicious. Additionally, they could not prove that they were in
rightful possession of the vehicle they drove. In these
circumstances, we find the police had reasonable and articulable
suspicion of criminal activity which justified the investigatory
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detention. The subsequent discovery of methamphetamine in the
car and on appellee's person was proper and its suppression in
the trial court unjustified.
Because we find that the trial court erred when it
suppressed the evidence of appellee's drug possession, we reverse
and remand for trial.
Reversed and remanded.
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