COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia
RAHEEM SHABAZZ ALLAH
MEMORANDUM OPINION * BY
v. Record No. 2180-95-2 JUDGE JAMES W. BENTON, JR.
JANUARY 28, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
briefs), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Raheem Shabazz Allah was indicted on the charges of
possession of cocaine with intent to distribute, see Code
§ 18.2-248, and transportation of cocaine into the Commonwealth
with intent to distribute. See Code § 18.2-248.01. The trial
judge denied Allah's motion to suppress the cocaine and convicted
Allah of both charges after Allah entered a conditional guilty
plea preserving his right to appeal. In this appeal, Allah
argues that he was unlawfully searched. Because the evidence did
not prove the lawfulness of the search, we reverse the trial
judge's decision.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
FACTS
The evidence proved that on March 22, 1995, Officer
Armistead and Detective Ruffin were assigned to a narcotics
interdiction team that was working at the Greyhound bus terminal
in Richmond. They observed Allah arrive at the terminal in an
automobile driven by another man. Allah and the man went to the
ticket counter and obtained a ticket. Allah, who was not
carrying luggage, then boarded a bus travelling to New York City.
A full twenty-four hours later, at 3:15 a.m. on the following
day, Allah returned to Richmond wearing the same clothes and
still carrying no luggage. Allah went from the bus into the
terminal and made a telephone call. After placing a telephone
call, Allah played video games.
Detective Ruffin approached Allah, displayed her badge, and
asked if she could speak with him. Officer Armistead testified
that he stood outside the game room. Detective Ruffin asked
Allah if Officer Armistead could search him. Allah refused to be
searched and asked why Detective Ruffin needed to speak with him.
Detective Ruffin stated that she was in the terminal to stop the
flow of illegal narcotics, told Allah about their observations of
him, and told Allah that his actions had made the police
suspicious. Detective Ruffin then again asked Allah if he would
allow Officer Armistead to search him. Allah asked why she
wanted to search him and stated that he did not want to be
searched. Detective Ruffin testified that the encounter was not
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consensual.
Detective Ruffin advised Allah that they would detain him
until they obtained a search warrant. Detective Ruffin took
Allah to a customer service office where Officer Armistead
detained him.
Detective Ruffin left the terminal to seek a warrant. While
she was typing the application, she spoke to a Commonwealth's
Attorney. Based on their conversation, Detective Ruffin
concluded that she did not have sufficient grounds to obtain a
warrant. Detective Ruffin talked to Officer Armistead on the
telephone and learned that Officer Armistead had unsuccessfully
attempted to get a drug dog and a criminal record check of Allah.
Officer Armistead said that he told Allah about their
efforts to obtain a warrant, drug dog, and a criminal record
check. He also testified that while he was detaining Allah in
the office, he saw the man, who had brought Allah to the terminal
the day before, enter the terminal.
After Detective Ruffin notified Officer Armistead that she
was unable to get a search warrant, Officer Armistead told Allah
to accompany him. He walked Allah outside the terminal near
Gates 6 and 7. Officer Armistead testified that he then told
Allah he was no longer being detained. Officer Armistead then
asked, however, "do you mind if I continue talking." He said
Allah "agreed by shaking his head up and down." Officer
Armistead testified that he advised Allah of the reasons for his
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suspicion and explained why they detained him. He said Allah
stated, "it sounds like probable cause to me."
Officer Armistead then asked Allah whether he was carrying
any illegal drugs. Officer Armistead testified that he then
"told [Allah], I just want to ask you again, can I search your
person for drugs, and by that I mean, just want to squeeze your
pockets from the outside." Allah began taking items out of his
pockets. However, Armistead stated "don't pull anything out of
your pockets" and said that he only wanted to feel the outside of
Allah's pockets. He testified that Allah said, "go ahead."
Officer Armistead felt a long oval object in Allah's upper
breast area, and when he squeezed the object, he discovered that
it was irregularly shaped and "crunchy." Officer Armistead then
told Allah that he was under detention again. He said that he
told Allah that the object "feels consistent to . . . crack
cocaine." Officer Armistead then took Allah back to the service
office. Officer Armistead testified that after they entered the
office, Allah attempted to run when Armistead turned to look for
Detective Ruffin. The officers stopped Allah and searched him.
They removed the object from Allah's pocket, opened it, and saw
what was later tested to be cocaine. The officers arrested Allah
at 5:03 a.m.
The trial judge concluded that Allah's "acceptance of the
search was voluntary" and overruled Allah's suppression motion.
For the reasons that follow, we hold that Allah was unlawfully
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detained and that the search was tainted by the illegal
detention.
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THE DETENTION
Officer Armistead testified that "the reason [Allah] was
detained was that he was observed coming into the [bus] terminal
with a heavyset, light complected male, having no luggage,
getting on the bus, going to New York and then coming back on a
quick turnaround." Because these "circumstances describe a very
large category of presumably innocent travelers, who would be
subject to virtually random seizures were the Court to conclude
that as little foundation as there was in this case could justify
a seizure," Reid v. Georgia, 448 U.S. 438, 441 (1980), we hold
that the officers lacked a reasonable suspicion "that criminal
activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30 (1968).
Therefore, the detention of Allah while the police attempted to
find a search warrant was unlawful. See Reid, 448 U.S. at 441.
THE SEARCH
When the police search a person without a search warrant,
"the burden is on the Commonwealth to establish an exception to
the warrant requirement." Walls v. Commonwealth, 2 Va. App. 639,
645, 347 S.E.2d 175, 178 (1986). "When trying to establish that
there was a voluntary consent after an illegal stop, the
[Commonwealth] has a much heavier burden to carry than when the
consent is given after a permissible stop." United States v.
Ballard, 573 F.2d 913, 916 (5th Cir. 1978). Even if the
Commonwealth discharges its heavy burden to prove a voluntary
consent, the Commonwealth then must establish that the consent
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was "sufficiently an act of free will to purge the primary taint"
of the illegal seizure. Wong Sun v. United States, 371 U.S. 471,
486 (1963). "The fact that the consent was voluntary . . . does
not mean that it was sufficiently an act of free will to purge
the primary [illegal] taint." Walls v. Commonwealth, 2 Va. App.
639, 654, 347 S.E.2d 175, 183 (1986).
Because we hold that the evidence proved that the illegal
detention tainted the alleged consent to search, we assume,
without deciding, that the consent was voluntary. The principle
is well established by this Court that evidence must be
suppressed if it was "obtained pursuant to . . . [a] voluntary
consent to search [that] was '"come at by exploitation of [the
initial] illegality" rather than "by means sufficiently
distinguishable to be purged of the primary taint."'"
Commonwealth v. Ealy, 12 Va. App. 744, 757, 407 S.E.2d 681, 689
(1991) (citations omitted). In determining whether a consent was
"sufficiently attenuated from the [illegal detention] to purge
its taint," this Court has "considered, in addition to the
voluntariness of the consent, the temporal proximity and the
presence of intervening circumstances between the [illegality]
and the consent, [the defendant's] awareness of a right to
withhold consent, and the purpose and flagrancy of the police
misconduct." Id. at 755, 407 S.E.2d at 688.
The evidence shows that the consent was given shortly after
the illegal detention ended. Allah was detained for a period of
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forty-five minutes to an hour while the officers sought a search
warrant. After Officer Armistead notified Allah that he was "no
longer under detention," Officer Armistead continued his
investigation by continuing to speak with Allah. He obtained
Allah's consent to the search in that conversation. Thus, no
intervening circumstances occurred that would break the chain of
events. See Walls, 2 Va. App. at 654, 347 S.E.2d at 184.
The police misconduct in unlawfully detaining Allah was
directly related to the ensuing conduct. See id. at 655, 347
S.E.2d at 184. Officer Armistead testified that after he was
denied a warrant, he wanted to extract Allah's consent. Officer
Armistead's objective to search Allah was clearly manifested by
his testimony that "I wanted to receive his consent and I believe
Detective Ruffin wanted to receive his consent also."
Although Officer Armistead had earlier told Allah that they
were seeking a search warrant and a drug dog, the record does not
indicate that he told Allah that they had been unable to procure
either. Officer Armistead sought to keep Allah at the terminal
by talking to him and by conveying the facts that formed the
basis for the officers' suspicions. However, Armistead testified
that the reason why he informed Allah of the grounds for his
suspicions was "[j]ust to advise him of that."
After Allah had been detained for up to one hour, Officer
Armistead was still confronting him and describing the
circumstances that arose Armistead's suspicions. Allah now was
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aware, however, that his earlier refusal to allow a search
resulted in a lengthy detention. The Commonwealth's evidence
therefore does not negate the reasonable conclusion that Allah
consented to the search just to free himself from police
interference. Certainly, the evidence proved that the police
exploited the initial illegal detention to provoke a consent.
Because the evidence proved that the consent was tainted by
the illegal detention, the trial judge erred in denying Allah's
motion to suppress. Therefore, we reverse the trial judge's
refusal to suppress the evidence and set aside the convictions.
Reversed and remanded.
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