COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
ARTHUR LEE MONTAGUE
MEMORANDUM OPINION * BY
v. Record No. 2387-95-2 CHIEF JUDGE NORMAN K. MOON
DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Robert P. Geary for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Arthur Lee Montague was convicted of possession of heroin
and appeals the trial judge's denial of his motion to suppress.
Because the evidence supports the trial judge's finding that the
evidence was lawfully obtained, we affirm the conviction.
I.
The evidence proved that on September 16, 1994, Officer
Cindy Patterson was engaged in a drug interdiction operation in a
location where drug transactions were known to occur. From a
distance of fifty yards, Officer Patterson observed Montague
approach Troy Hargrove and speak to him. Montague and Hargrove
reached into their own pockets and exchanged something. Officer
Patterson concluded that a drug transaction had occurred and
radioed for another officer to confront them.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Two uniformed officers on bicycles responded to Officer
Patterson's call. Montague testified that the officers
confronted him and Hargrove and told them to take everything out
of their pockets. They put their possessions on a car. Montague
also testified that the officers never asked permission to search
them. The officers also frisked them. The officers then told
them they could put everything back in their pockets. As
Hargrove picked up his matchbook, heroin fell out. The officers
then arrested Hargrove.
Officer Joseph Coker, who also responded to Officer
Patterson's call, testified that as he approached he heard one of
the other officers state that he had found something. Officer
Coker testified that he then went to Montague and informed him
that they were looking for drugs or guns. Officer Coker further
testified that when he asked Montague whether he had drugs or
guns, Montague responded that he did not and added that he had
already been searched by the officers on bicycles.
When one of the officers verified that he had already
checked Montague, Officer Coker asked the officer if he could
check Montague again. Officer Coker testified that he asked
Montague if he would mind being searched again. Coker testified
that Montague said "no" and thrust his arms up into the air.
Montague, however, testified that Officer Coker did not ask for
permission to search him.
Officer Coker frisked Montague and saw a matchbox with
- 2 -
pieces of plastic and aluminum foil in the watch pocket of
Montague's pants. Officer Coker testified that he knew, based on
his training and experience, that heroin was packaged in squares
of foil and often carried in a person's watch pocket. He seized
the matchbox and arrested Montague. The laboratory reported that
the box contained heroin.
II.
Montague contends that the Commonwealth failed to prove that
he validly consented to the search performed by Officer Coker and
that the seizure and search were illegal. We disagree.
"On review, we consider the [evidence] in the light most
favorable to the [Commonwealth], granting to it all reasonable
inferences fairly deducible therefrom." Commonwealth v. Ealy, 12
Va. App. 744, 747, 407 S.E.2d 681, 683 (1991). So viewed,
Officer Coker testified that he approached Montague and said,
"Okay, do you mind if I search again?" In response, Montague
said, "No," and threw his arms up. This testimony was sufficient
to prove that Montague consented to the search by Officer Coker.
Even though Montague did voluntarily consent to the search
by Officer Coker, the evidence would still be inadmissible if it
was "acquired as an indirect result of [an earlier] unlawful
search." Id. at 754, 407 S.E.2d at 687 (quoting Murray v. United
States, 487 U.S. 533, 536-37 (1988)). Montague argues that the
initial search performed by the officers on bicycles was
unlawful. Assuming arguendo that the first search was unlawful,
- 3 -
an issue we need not decide today, we hold that the evidence
obtained from the subsequent search by Officer Coker was
nevertheless admissible because it was "not obtained by
exploitation of the [allegedly] unlawful search." Ealy, 12 Va.
App. at 755, 407 S.E.2d at 688.
"[A] . . . consent to search obtained subsequent to an
unlawful search may be an independent source if such . . .
consent is not obtained by exploitation of the unlawful search."
Id. "[E]vidence is not 'fruit of the poisonous tree' simply
because 'but for' an unlawful search it would not have come to
light." Id. (citing Segura v. United States, 468 U.S. 796, 815
(1984)). The allegedly unlawful search of Montague provided
Officer Coker with no additional information to use in seeking or
conducting the second search. Indeed, nothing incriminating was
found on Montague during the first search. Thus, this case is
distinguishable from Hall v. Commonwealth, 22 Va. App. 226, 468
S.E.2d 693 (1996), where the police did find incriminating
evidence on the defendant before obtaining his consent to a
further search.
Montague himself testified that, before Officer Coker
approached him, Montague had already been told that he could
retrieve his belongings from the hood of the car. This testimony
established that Montague had been released from the first search
and his continued presence at the scene was his own independent
act. The evidence supported a finding that the subsequent search
- 4 -
was "the product of a free will that purge[d] the taint of an[y]
illegality." Ealy, 12 Va. App. at 756, 407 S.E.2d at 688. We
therefore hold that Montague validly consented to the second
search and the heroin found was not tainted by any alleged prior
illegality. Accordingly, the trial judge did not err in
admitting the evidence.
Affirmed.
- 5 -
Benton, J., dissenting.
The evidence proved that the initial search of Montague was
unlawful. Because Montague's consent to the second search was
obtained "by exploitation of [the prior] unlawful search,"
Commonwealth v. Ealy, 12 Va. App. 744, 755, 407 S.E.2d 681, 688
(1991), I would hold that the evidence was inadmissible.
The evidence proved that from a distance of fifty yards,
Officer Patterson saw Arthur Lee Montague and Troy Hargrove meet
on the street with their bicycles. The sunlight was still
present. The men spoke briefly, reached into their pockets, and
exchanged something. Although Officer Patterson could not see
what was exchanged, she called other officers to stop and search
the men because she "believed . . . [it was] a drug transaction."
The evidence proved that two officers confronted Montague
and Hargrove and searched them. Neither of the officers who
searched the men testified. However, Montague testified that the
two officers approached him and Hargrove, told them to remove
everything from their pockets, and then frisked them. He further
testified that the officers did not ask permission for the
search.
Based upon this Court's prior holdings in Riley v.
Commonwealth, 13 Va. App. 494, 497, 412 S.E.2d 724, 726 (1992);
Smith v. Commonwealth, 12 Va. App. 1100, 1104, 407 S.E.2d 49, 52
(1991); Goodwin v. Commonwealth, 11 Va. App. 363, 367, 398 S.E.2d
690, 692 (1990); Moss v. Commonwealth, 7 Va. App. 305, 308, 373
- 6 -
S.E.2d 170, 172 (1988), I would hold that this initial detention
and search were illegal. "The officer's own testimony revealed
that [s]he could not tell what was in the defendant's hand and
that the stop was based more on the officer's '"inchoate and
unparticularized suspicion or 'hunch'" . . . than on a reasonable
suspicion based on objective facts.'" Goodwin, 11 Va. App. at
366-67, 398 S.E.2d at 692.
This initial illegal search tainted the second search. The
evidence proved that after the initial search was unfruitful, the
two officers told Montague and Hargrove that they could retrieve
their belongings. When Hargrove began to do so, a package of
heroin fell out of a matchbook that he was putting in his pocket.
The officers then arrested Hargrove. As Hargrove was being
arrested, Officer Coker arrived and confronted Montague.
The majority asserts that Montague's continued presence at
the scene was his own independent act. However, the evidence
proved that Officer Coker observed Montague looking around as if
he was seeking an avenue to "escape." Officer Coker approached
Montague, just moments after Montague retrieved his belongings,
to prevent Montague from leaving. Therefore, the Commonwealth's
own evidence reveals that Montague's continued presence at the
scene was caused by Coker's decision to intervene.
"It is well settled that 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).
- 7 -
"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). "Th[e] burden [to prove consent] cannot be
discharged by showing no more than acquiescence to a claim of
lawful authority." Bumper v. North Carolina, 391 U.S. 543,
548-49 (1968) (footnote omitted). In discharging its burden, the
Commonwealth must establish that the claimed voluntary act, the
alleged consent, 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 record in this case fails to establish and, indeed,
could not establish that the consent was free from the taint of
the illegal seizure. In determining whether a consent was
"sufficiently attenuated from the [illegal search] 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." Ealy, 12 Va. App. at 755, 407 S.E.2d at 688.
Although the Commonwealth argues that Montague freely
consented, the officer's request for consent occurred just
moments after the prior unlawful search. No intervening
- 8 -
circumstances existed that would break the chain of events. See
Walls, 2 Va. App. at 654, 347 S.E.2d at 184. Minutes after
retrieving his belongings, and before Montague had a chance to
walk away, Officer Coker confronted him and asked permission to
search. The evidence reveals that the searches occurred during
one continuing interaction between Montague and the police. The
temporal proximity of the illegal search and the "consent," and
the lack of intervening circumstances, together lead to the
conclusion that the causal connection between the illegal seizure
and the alleged "consent" remained unbroken.
Finally, the police misconduct in performing the illegal
search was directly related to Montague's consent to the second
search. See Walls, 2 Va. App. at 655, 347 S.E.2d at 184. The
Commonwealth's evidence does not negate the reasonable conclusion
that Montague probably consented to Officer Coker's search
because he had not been given a choice when the initial search
was performed.
For these reasons, I would hold that the evidence failed to
prove that Montague's presence and consent to the second search
was his own voluntary, independent act.
- 9 -