COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia
SEAN RODERIC BELL
MEMORANDUM OPINION * BY
v. Record No. 2792-96-2 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 3, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
John F. McGarvey for appellant.
Pamela A. Rumpz, Assistant Attorney General
(Richard Cullen, Attorney General; Monica S.
McElyea, Assistant Attorney General, on
brief), for appellee.
Sean Roderic Bell (appellant) appeals his conviction for
possession of cocaine with intent to distribute and trespassing
on the basis that the trial court erroneously denied his motion
to suppress evidence seized by the police in a search of
appellant's person.
On March 14, 1996, Richmond police officers, including
Officer John O'Connor, approached the Pinebrook Village apartment
complex, an area marked "no trespassing." Officer O'Connor knew
that appellant's grandmother lived in the complex and had warned
appellant repeatedly that he was trespassing if he was not
visiting his grandmother in or near her apartment. Officer
O'Connor saw appellant "a long distance from" the building where
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appellant's grandmother lived.
Officer O'Connor approached a group of people near open
containers of alcohol, including appellant, and asked appellant
what he was doing at the complex. Appellant answered that he was
visiting a friend. However, upon further inquiry, Officer
O'Connor determined that appellant's friend was not a resident of
the complex; the single resident of the complex in the group
denied that appellant was visiting her.
Officer O'Connor arrested appellant for trespassing and, as
he placed appellant in handcuffs, he felt a chunk in the sleeve
of appellant's sweatshirt. Officer O'Connor discovered several
plastic bags containing what turned out to be cocaine, as well as
a pager and over $400 in cash, in appellant's sleeve, pockets,
and sweatpants.
On cross-examination at the suppression hearing, Officer
O'Connor testified that either he or another officer patted down
appellant and that appellant was not free to leave during the
questioning. A witness for the defense testified that she was
standing near appellant when she saw Officer O'Connor grab
appellant's arm, pat him down, and continue to hold his arm while
speaking to him.
The trial court ruled that the police had probable cause to
arrest and search appellant. Appellant was convicted of
possession of cocaine with intent to distribute and trespassing,
and was sentenced to twelve years imprisonment, nine years three
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months suspended, on the cocaine charge. The court suspended the
imposition of sentence on the trespassing charge.
Appellant contends that he was seized by Officer O'Connor
without the reasonable articulable suspicion required by Terry v.
Ohio, 392 U.S. 1 (1968). We disagree and affirm.
Appellant bears the burden of demonstrating that the trial
court's denial of his motion to suppress, "'when the evidence is
considered most favorably to the Commonwealth, constituted
reversible error.'" McGee v. Commonwealth, 25 Va. App. 193, 197,
487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
We review "'[u]ltimate questions of reasonable suspicion and
probable cause to make a warrantless search' . . . de novo on
appeal," but "we are bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
support them." Id. at 198, 487 S.E.2d at 261 (quoting Ornelas v.
United States, __ U.S. __, __, 116 S. Ct. 1657, 1659 (1996)).
Viewing the evidence in the light most favorable to the
Commonwealth, O'Connor's only interaction with appellant prior to
arresting him was to ask him what he was doing in the complex.
Questioning by a police officer, without more, does not implicate
the Fourth Amendment "'as long as the citizen [being questioned]
voluntarily cooperates with the police.'" Payne v. Commonwealth,
14 Va. App. 86, 88, 414 S.E.2d 869, 870 (1992) (quoting United
States v. Wilson, 953 F.2d 116, 121 (4th Cir. 1991)). O'Connor's
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other questions were directed to individuals other than
appellant. 1
O'Connor's arrest of appellant required probable cause to
satisfy the Fourth Amendment. See, e.g., McGee, 25 Va. App. at
198, 487 S.E.2d at 261 (citing United States v. Sokolow, 490 U.S.
1, 7 (1939)). We find this constitutional standard has been met
in this case. Officer O'Connor knew that appellant had a history
of loitering in the posted "no trespassing" complex and had
warned him several times about trespassing. Officer O'Connor
also knew where appellant's grandmother lived in the complex and
knew that appellant was not near the building in which his
grandmother lived. Officer O'Connor properly questioned
appellant briefly to determine if he was in fact trespassing. In
the course of his questioning, Officer O'Connor learned that the
person whom appellant claimed to be visiting was not a resident
of the posted "no trespassing" apartment complex and that the
1
Assuming that O'Connor's questioning of appellant rose to
the level of a seizure, the seizure was justified by reasonable
articulable suspicion. "'[I]f there are articulable facts
supporting a reasonable suspicion that a person has committed a
criminal offense, that person may be stopped in order to identify
him, to question him briefly, or to detain him briefly, while
attempting to obtain additional information.'" DePriest v.
Commonwealth, 4 Va. App. 577, 585, 359 S.E.2d 540, 544 (1987)
(quoting Hayes v. Florida, 470 U.S. 811, 816 (1985)). Officer
O'Connor had articulable facts supporting a reasonable suspicion
that appellant was trespassing in the apartment complex, as
described below. Furthermore, the challenged evidence was seized
pursuant to a search incident to an arrest supported by probable
cause, rendering moot the question of whether the brief detention
for questioning was supported by reasonable suspicion. White v.
Commonwealth, 24 Va. App. 234, 239, 481 S.E.2d 486, 488 (1997),
reh'g en banc granted, April 1, 1997.
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only resident of the complex denied appellant was visiting her.
Appellant, therefore, had no ostensibly lawful claim to be in the
apartment complex. Because appellant committed the crime of
trespassing in his presence, Officer O'Connor had the authority
to arrest him under Code § 19.2-81.
"[A]n arresting officer may, without a warrant, search a
person validly arrested." Michigan v. DiFillippo, 443 U.S. 31,
35 (1979); see also, e.g., Farmer v. Commonwealth, 21 Va. App.
111, 115, 462 S.E.2d 564, 566 (1995) ("[S]earches conducted
incident to a lawful arrest are exempt from the warrant
requirement."). Officer O'Connor discovered the challenged
evidence during the arrest and incident search of appellant for
trespassing.
Therefore, we find that the search of appellant and the
seizure of appellant's contraband were reasonable under the
meaning of the Fourth Amendment. See Jordan v. Commonwealth, 207
Va. 591, 596, 151 S.E.2d 390, 394 (1966) (holding that a search
incident to an arrest for trespassing was constitutional).
Affirmed.
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