COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia
GEORGE GREGORY BOONE
MEMORANDUM OPINION * BY
v. Record No. 2575-95-2 JUDGE SAM W. COLEMAN III
FEBRUARY 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
George Gregory Boone was arrested for trespassing at
Whitcomb Court, which is a multi-unit housing development owned
by the City of Richmond Redevelopment and Housing Authority. The
arresting officers searched Boone incident to the arrest and
discovered in his right pants pocket two plastic baggies
containing cocaine. On appeal from the trespass and possession
of cocaine convictions, the issues are (1) whether Boone's
statements to the officers when they first approached him, which
statements led to the trespass charge, should have been
suppressed because they were given involuntarily in violation of
Miranda v. Arizona, (2) whether the officers illegally seized the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
cocaine from Boone in violation of the Fourth and Fourteenth
Amendments, and (3) whether the evidence is sufficient to support
the trespass conviction. We find no error and affirm the
trespass and possession of cocaine convictions.
On June 9, 1995, around 6:45 p.m., two City of Richmond
uniformed police officers were on routine patrol near Whitcomb
Court. After parking their patrol car, they walked into an area
in Whitcomb Court known as a "cut," which are areas shielded
between two apartment buildings known by police to be areas in
Whitcomb Court where drugs are bought and sold. Due to the
considerable drug activity, a "No Trespassing" sign had been
placed on each apartment building in the Whitcomb Court complex.
As the officers walked into the "cut" a number of people who
were congregated there scattered and someone yelled "Five-O," a
common street warning that police are in the area.
The defendant, who was in the vicinity where the people were
congregated, was walking toward the officers. As he approached,
one of the officers "just walked up to [the defendant] and
started talking to him." The officer greeted the defendant and
asked him whether he lived in Whitcomb Court. The defendant
responded, "No." The officer then asked if he was "visiting
anybody." The defendant again said, "No." After the officer
determined that the defendant neither lived nor was visiting
there, the officer asked the defendant if he had drugs. When the
defendant responded that he did not, the officer asked if he
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could check the defendant's pockets for drugs. The defendant
said "No," and turned and ran from the officer.
The officer pursued the defendant and overtook him after
about forty or fifty feet. The officer tackled the defendant,
handcuffed him, and placed him under arrest for trespassing. 1
After the arrest, the officer searched the defendant and found
1
Code § 18.2-119 provides as follows:
Trespass after having been forbidden to do
so; penalties.
If any person without authority of law
goes upon or remains upon the lands,
buildings or premises of another, or any
portion or area thereof, after having been
forbidden to do so, either orally or in
writing, by the owner, lessee, custodian or
other person lawfully in charge thereof, or
after having been forbidden to do so by a
sign or signs posted by such persons or by
the holder of any easement or other
right-of-way authorized by the instrument
creating such interest to post such signs on
such lands, structures, premises or portion
or area thereof at a place or places where it
or they may be reasonably seen, or if any
person, whether he is the owner, tenant or
otherwise entitled to the use of such land,
building or premises, goes upon, or remains
upon such land, building or premises after
having been prohibited from doing so by a
court of competent jurisdiction by an order
issued pursuant to Code §§ 16.1-253,
16.1-253.1, 16.1-278.2 through 16.1-278.6,
16.1-278.8, 16.1-278.14, 16.1-278.15, or Code
§ 16.1-279.1, or an ex parte order issued
pursuant to Code § 20-103, and after having
been served with such order, he shall be
guilty of a Class 1 misdemeanor. This
section shall not be construed to affect in
any way the provisions of Code §§ 18.2-132
through 18.2-136.
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two plastic bags containing cocaine in the defendant's right
pants pocket. The defendant was then charged with possessing
cocaine in violation of Code § 18.2-250.
SUPPRESSION OF DEFENDANT'S STATEMENTS
The defendant contends that his responses to the police
officer's questions which led to the trespassing charge and the
fruits that flowed from his arrest for trespassing should have
been suppressed because he gave them involuntarily in violation
of his Fifth Amendment rights as defined in Miranda v. Arizona.
Miranda warnings are required whenever a
suspect is subjected to "custodial
interrogation." Every detention does not
necessarily constitute custodial
interrogation for purposes of Miranda.
A person is in custody for Miranda purposes
only when the person's "freedom of action is
curtailed to a 'degree associated with formal
arrest.'" If an officer has a reasonable,
articulable basis to suspect that an
individual has committed or is about to
commit a crime, the officer is justified in
briefly detaining the suspect and asking him
a limited number of questions without giving
Miranda warnings in order to quell or confirm
the officer's suspicion of criminal activity.
Cherry v. Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242, 244
(1992) (citations omitted).
The holding in Miranda was designed to provide a warning and
safeguard from those types of prolonged or intense interrogations
that are commonly associated with station house questioning. See
Miranda v. Arizona, 384 U.S. 436, 438-39 (1966). Miranda
warnings are not required when there has been a consensual
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encounter or brief detention to investigate suspicious activity
or circumstances. Id.
The brief detention and nature of the
questioning in [Terry-type detentions] is
dramatically different from the coercive
influences in "police dominated, station
house interrogations" which are frequently
prolonged and against which Miranda was
designed to protect. Miranda's prophylactic
rule recognizes that a person questioned in a
custodial situation is subjected to
compelling influences which might induce him
"to speak where he would not otherwise do so
freely." Whether a suspect is "in custody"
turns upon "how a reasonable man in the
suspect's position would have understood his
situation." Thus, a suspect is "in custody"
when the objective circumstances would lead a
reasonable person to believe he was under
arrest, thereby subjecting him or her to
pressure impairing the free exercise of the
privilege against self-incrimination.
Cherry, 14 Va. App. at 140, 415 S.E.2d at 244.
In the instant case, the confrontation between the defendant
and the officer, who inquired about the defendant's presence in
Whitcomb Court, was either a consensual encounter, see Baldwin v.
Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647-48 (1992),
or, at most, a brief investigatory detention to determine whether
criminal activity may have been afoot, see Terry v. Ohio, 392
U.S. 1, 21 (1968). The defendant, who ran, did not consider
himself to have been arrested; he did not submit to a show of
authority, nor did he feel that he did not have the right to
leave. The initial encounter consisted of the officer asking the
defendant whether he lived in or was visiting someone in Whitcomb
Court or whether he possessed drugs or would consent to having
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his pockets searched. Regardless of the defendant's subjective
belief about whether he felt free to leave, no reasonable person
would have felt that he had been arrested or taken into custody
under these circumstances. See Stansbury v. California, 511 U.S.
318, 323 (1994), and Berkemer v. McCarty, 468 U.S. 420, 442
(1984). Accordingly, because the questioning of Boone concerning
his purpose for being in Whitcomb Court did not occur during a
custodial interrogation, but rather during a consensual encounter
or brief investigatory detention, the officers were not required
to give him the warnings as dictated by Miranda. Thus, the trial
court did not err in refusing to suppress Boone's statements.
SUPPRESSION OF THE COCAINE
We next consider the defendant's contention that the trial court
erred by refusing to suppress the cocaine which the officers
seized from the defendant because when they searched him they
violated his Fourth Amendment privacy protection as guaranteed by
the Fourteenth Amendment.
Critical to the inquiry is determining when Boone was seized for
purposes of the Fourth Amendment. Boone contends that he was
seized when the officer first approached him and began asking him
questions relative to both trespass and drug charges. He asserts
that, because the officer was in uniform, wearing a badge, and
carrying a weapon, no reasonable person would have felt free to
leave after the questioning began and, thus, he was seized.
Therefore, the defendant claims, because the officers had no
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reason to suspect him of trespassing or engaging in drug activity
the detention was illegal.
The purpose of the Fourth Amendment is not to
eliminate all contact between the police and
the citizenry, but "to prevent arbitrary and
oppressive interference by enforcement
officials with the privacy and personal
security of individuals." 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.
United States v. Mendenhall, 446 U.S. 544, 553-54 (1980)
(citation omitted). For a police officer to merely approach a
citizen on the street and ask the individual questions is a
consensual encounter and does not implicate the Fourth Amendment.
Buck v. Commonwealth, 20 Va. App. 298, 301-02, 456 S.E.2d 534,
535-36 (1995); see Baldwin v. Commonwealth, 243 Va. 191, 196, 413
S.E.2d 645, 647-48 (1992). Unless a police-citizen encounter is
accompanied by some show of force or authority or some coercion
by the police officer that would cause the citizen reasonably to
believe that he was not free to leave and was required to comply,
then there has been no detention that implicates the Fourth
Amendment. Greene v. Commonwealth, 17 Va. App. 606, 608, 440
S.E.2d 138, 139-40 (1994).
Viewing the evidence in the light most favorable to the
Commonwealth, as we must do when reviewing a trial court's denial
of a motion to suppress evidence, Fore v. Commonwealth, 220 Va.
1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017
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(1980), the police officer made no show of authority or force and
used no coercion that would cause a person reasonably to have
believed that he was not free to leave. Although Boone's
subjective state of mind does not control the determination as to
whether he was seized, see Michigan v. Chesternut, 486 U.S. 567,
574 (1988), in making the objective determination whether a
person would feel free to leave, it is significant to note that
Boone did, in fact, leave. At that point in time, the police
officer had not seized Boone.
No seizure or detention of Boone occurred until after he
fled and when the officer physically tackled and subdued him.
See California v. Hodari D., 499 U.S. 621, 626-27 (1991); Woodson
v. Commonwealth, 245 Va. 401, 405-06, 429 S.E.2d 27, 29 (1993).
At that time the officer had probable cause to believe that Boone
was trespassing in Whitcomb Court. "No Trespassing" signs were
posted on the apartment buildings and Boone told the officer that
he did not live there and was not visiting anyone there. Even if
the officers had initiated the trespass investigation as a
pretext to allow them to further investigate whether Boone was
involved in drug activity, once the officers had probable cause
to believe that Boone was trespassing the legality of seizing and
charging him with that offense satisfies the Fourth Amendment
requirement that the seizure be reasonable. See Whren v. United
States, 116 S. Ct. 1769 (1996). Thereafter, the officer had the
right to search Boone incident to the arrest and the cocaine
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found as a result of that search was legally seized. See Warden
v. Hayden, 387 U.S. 294, 310 (1967). Accordingly, the trial
court did not err by overruling the motion to suppress the
cocaine.
SUFFICIENCY OF EVIDENCE -- TRESPASS
A person is guilty of trespassing "if [that]
person without authority of law goes upon or
remains upon the lands, buildings or premises
of another, or any portion or area thereof,
after having been forbidden to do so, either
orally or in writing, by the owner . . . or
other person lawfully in charge thereof, or
after having been forbidden to do so by a
sign or signs posted by such persons." Code
§ 18.2-119. Although the criminal trespass
statute does not contain an express
requirement of intent, the statute has been
construed to require proof of a willful
trespass.
Jones v. Commonwealth, 18 Va. App. 229, 232, 443 S.E.2d 189, 190
(1994) (citations omitted).
When reviewing whether the evidence is sufficient to support
a trespass conviction, we view the evidence in the light most
favorable to the prevailing party, which is the Commonwealth.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). Nevertheless, Boone contends that the testimony of
his friend, Henry Burns, who explained that he had dropped Boone
off and had given him directions to a bus stop which required
that Boone walk through Whitcomb Court, absolved Boone of having
a willful or criminal intent to trespass. Boone argues that on
these facts he was in Whitcomb Court under a claim of right.
Even accepting as true Burns' explanation of why Boone was at
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Whitcomb Court, that does not absolve him of trespass.
Admittedly, if one enters or stays upon land under a bona
fide claim of right, the criminal intent necessary to convict of
criminal trespass is negated. Reed v. Commonwealth, 6 Va. App.
65, 71, 366 S.E.2d 274, 278 (1988). "[A] bona fide claim of
right is a sincere, although perhaps mistaken, good faith belief
that one has some legal right to be on the property. The claim
need not be one of title or ownership, but it must rise to the
level of authorization." Id. The authorization or consent to be
on the property must be given by a person with authority to give
such consent in order for the claim of right to be in good faith.
See, e.g., State v. Hoyt, 304 N.W.2d 884, 889 (Minn. 1981).
Here, accepting Burns' explanation as true, which the fact
finder was not required to do, Boone knew that Burns did not own
property or live in Whitcomb Court, he was merely visiting his
girlfriend. Burns was not an owner, tenant, or licensee of the
property. He had no authority to consent to Boone's presence on
the property or to authorize him to disregard the "No
Trespassing" signs and to cross the property. Boone could not
have had a good faith, reasonable belief that Burns' permission
to enter the property, which was clearly marked "No Trespassing,"
entitled him to enter the property.
Accordingly, the trial court did not err in finding that
Boone was not in Whitcomb Court under a legitimate claim of
right; he did not live there, was not visiting a resident there,
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and had been forbidden by the "No Trespassing" signs from being
there. Thus, the evidence is sufficient to support the trespass
conviction.
Affirmed.
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