COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
THOMAS COLE PEGRAM and
VICTOR BLAINE LYNCH
MEMORANDUM OPINION * BY
v. Record Nos. 1041-95-2 JUDGE JERE M. H. WILLIS, JR.
1042-95-2 SEPTEMBER 24, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUISA COUNTY
Jay T. Swett, Judge
C. David Whaley (Anthony G. Spencer;
Morchower, Luxton & Whaley, on briefs), for
appellants.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Thomas Cole Pegram and Victor Blaine Lynch appeal from
convictions for possession of cocaine in violation of Code
§ 18.2-250. They contend that the trial judge erred in refusing
to suppress evidence seized in violation of their Fourth
Amendment rights. Lynch additionally claims that the trial judge
should have suppressed a statement he made after an officer
violated his Fifth Amendment right to an attorney. We find no
error and affirm their convictions.
The evidence proved that Trooper S. T. Elliott of the
Virginia State Police observed an El Camino vehicle travelling
westbound on Interstate 64 in Louisa County and followed it.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Initially, he did not notice anything unusual about the vehicle
and its two occupants. After following the vehicle for a mile to
a mile and a half, he began to pass the vehicle and spied a
"large cloth object" dangling from the rearview mirror. Trooper
Elliott asked Trooper Michael John Alessi to assist him. When
Trooper Elliott stopped the vehicle, he and Trooper Alessi
approached the vehicle.
Trooper Elliott told Lynch, the driver, that he stopped his
vehicle because of the object hanging from the mirror and issued
Lynch a summons. Lynch then agreed, at Trooper Elliott's
request, to answer a few questions and denied that his vehicle
contained anything illegal. Trooper Elliott then "asked [Lynch]
if he minded if I took a look" in the vehicle and Lynch "stated
no, go right ahead." Lynch and Pegram, the passenger, complied
with the request to exit the car. Both also agreed to be
frisked. During his frisk of Pegram, Trooper Alessi obtained and
inspected two hard plastic containers. One of these containers
held a white substance later determined to be cocaine. Trooper
Elliott arrested Pegram.
Trooper Alessi then searched the vehicle and found a pack of
Kool cigarettes. Lynch denied that the cigarettes were his.
When Trooper Alessi found cocaine in the cigarette pack, Trooper
Elliott then arrested Lynch and read his Miranda warnings. After
Lynch asserted his right to an attorney, Trooper Alessi told
Lynch to contact him if he wanted to help himself by revealing
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information about the sale of drugs or by working for the police.
Lynch then admitted that the cigarette pack was his and that he
purchased the cocaine in it.
The trial judge refused to suppress the cocaine and Lynch's
statements. At the conclusion of the trial, the trial judge
convicted Lynch and Pegram of possession of cocaine.
Pegram and Lynch challenge the constitutionality of the stop
of their vehicle, the search, and the trial judge's refusal to
suppress the cocaine. An officer must have probable cause or
reasonable suspicion to detain a vehicle. Murphy v.
Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989).
Code § 46.2-1054 prohibits driving a vehicle "with any object
. . . suspended from any part of the motor vehicle in such a
manner as to obstruct the driver's clear view of the highway
through the windshield." A police officer has the authority to
detain a vehicle upon his belief that the vehicle is being
operated in violation of the law. See Hoye v. Commonwealth, 18
Va. App. 132, 134, 442 S.E.2d 404, 406 (1994). Trooper Elliott
stopped the vehicle based upon his belief that it was being
operated in violation of Code § 46.2-1054.
The officer's inability to describe the cloth does not
invalidate the stop. The appellants do not contest that an
object was hanging from the mirror. Because Trooper Elliott had
probable cause to believe that the cloth object violated Code
§ 46.2-1054, the trial judge did not err in finding that the
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trooper had authority to stop the vehicle and to issue a summons.
Though Trooper Elliott admitted at trial that he "probably
[had] some thought of . . . searching the vehicle" prior to
pulling it over, we view the actions of a police officer in the
field objectively. The cloth object provided a sufficient basis
to detain the vehicle regardless of the officer's true
motivations. Limonja v. Commonwealth, 8 Va. App. 532, 537-38,
383 S.E.2d 476, 480 (1989)(en banc), cert. denied, 495 U.S. 905
(1990). Therefore, we find that Trooper Elliott did not violate
appellants' Fourth Amendment rights by detaining them and the
vehicle.
The Commonwealth has the burden of proving a consensual
search. However, Lynch consented to the search. After Trooper
Elliott issued the summons, Lynch and Pegram were free to
continue on their way. Lynch agreed to answer a few questions
before leaving. He also allowed the officers to "take a look" in
his vehicle.
"The scope of a person's consent is determined by whether it
is objectively reasonable for the police to believe that the
consent permitted them to search where they did." Grinton v.
Commonwealth, 14 Va. App. 846, 851, 419 S.E.2d 860, 863 (1992).
Trooper Elliott understood Lynch to have consented to a search of
the car and at no time did Lynch limit the scope of the search or
indicate to the officers that he wished them to discontinue their
search. Trooper Elliott asked Lynch, prior to searching, "if he
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had anything illegal in the car such as guns or drugs." Thus,
after Lynch granted consent, it was certainly reasonable for the
officers to search any areas of the car or containers that might
have hidden guns or drugs. The "[f]ailure to object to the
continuation of the search under these circumstances may be
considered an indication that the search was within the scope of
the consent." United State v. Espinosa, 782 F.2d 888, 892 (10th
Cir. 1986). Thus, the Commonwealth proved Lynch's voluntary
consent to search.
Lynch also contends that the admission of his statement
concerning the cocaine violated his Fifth Amendment right. He
made statements after Trooper Elliott arrested him and gave him
Miranda warnings. Both officers testified that Lynch invoked his
right to speak with an attorney. However, Trooper Alessi
testified that he:
advised [Lynch] that I realized that he
invoked his rights that he wanted an attorney
and that if he wants to help himself out, we
make no promises but if he--if he's aware of
drug dealing in Goochland, Richmond area and
he was willing to work or wanted to do
something, to contact me, I think I--I
normally will tell him to go see his attorney
and discuss it with him and--and come back
and contact me if he's willing to work. It's
just something that I normally do on a pretty
routine basis.
In deciding whether an interrogation had occurred, the trial
judge was required to make "a determination whether an objective
observer would view an officer's words or actions as designed to
elicit an incriminating response." Blain v. Commonwealth, 7 Va.
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App. 10, 15, 371 S.E.2d 838, 841 (1988). See Rhode Island v.
Innis, 446 U.S. 291, 301 (1980).
Viewed in the light most favorable to the Commonwealth,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991), the evidence established that Trooper Alessi suggested
to Lynch that he should speak with an attorney regarding the
possibility of providing the police with information in return
for a lighter penalty. Considering Trooper Alessi's advice and
Lynch's situation, we do not find that the statements were
designed to provoke Lynch into making an incriminating response.
Lynch volunteered his confession without pressure from the
police. See Blain, 7 Va. App. at 15, 371 S.E.2d at 841.
Accordingly, we find that the trial judge properly admitted
Lynch's statement as evidence of his guilt.
For these reasons, we affirm the convictions.
Affirmed.
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Benton, J., dissenting.
Based on the evidence in this record, I would hold that the
Commonwealth did not meet its burden of proving that the troopers
had probable cause to believe a violation was occurring when they
stopped the vehicle. Therefore, I would hold that the trial
judge erred in failing to suppress the evidence. In addition, I
would hold that the officers obtained statements from Victor
Lynch in violation of his Fifth Amendment right to counsel.
I.
The evidence at the suppression hearing proved that Trooper
S. T. Elliott stopped Lynch, the driver of a blue El Camino, and
Thomas Pegram, Lynch's passenger, on Interstate 64 in Louisa
County. Trooper Elliott testified that he followed the El Camino
for approximately one to one and one-half miles before deciding
to make the stop. He initially noticed nothing unusual about the
vehicle or its occupants and admitted that Lynch was driving
within the posted speed limit. Trooper Elliott testified that
when he began to pass the vehicle, he noticed "an object that was
dangling from the rear-view mirror." He called for assistance
from Trooper Alessi and signaled Lynch to stop his vehicle.
Trooper Elliott advised Lynch that he stopped the vehicle because
the hanging object violated Virginia law. See Code § 46.2-1054.
During the hearing, defense counsel questioned Trooper
Elliott regarding the object that was the basis for the stop.
The trooper could not articulate any details about the object
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that prompted the detention. He testified as follows:
Q. Now, your purpose for pulling them over was what?
A. An object that was dangling from the
rear-view mirror.
Q. Okay. And do you remember what that
object was?
A. No, sir, only that it was a cloth object, large
cloth object.
* * * * * * *
Q. Now, the purpose for the stop was that there was a
dangling object from the mirror.
A. Yes, sir.
* * * * * * *
Q. And you have no recollection other than it was a
cloth that was dangling--something that was cloth
that was dangling from the mirror, is that
correct?
A. Yes, sir.
Q. You don't remember anything else about it?
A. No, sir.
Q. You don't remember the size, color, nothing, do
you?
A. No, sir.
Q. And you never entered the vehicle to determine
whether that piece of cloth obstructed the vision
of the driver, did you?
A. No, sir.
On cross-examination, Trooper Elliott responded
affirmatively when asked if he testified that the object "was
hanging about six or eight inches down." His testimony also
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proved that he was traveling approximately 65 miles per hour in a
lane adjacent to Lynch when he decided that the object was
unlawful. The general district court judge who tried the traffic
case found no violation of Code § 46.2-1054 and dismissed the
charge.
II.
"If the stop of [a] vehicle is without a warrant, the
Commonwealth has the burden to prove the stop was legal." Murphy
v. Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989).
An arrest or issuance of a summons for violating a law is lawful
only when based upon probable cause to believe that the driver
was violating the law. See Yeatts v. Minton, 211 Va. 402, 405,
177 S.E.2d 646, 648 (1970). At trial the Commonwealth conceded
that the officer needed probable cause to stop the vehicle and
issue the summons.
Trooper Elliott testified that he stopped Lynch's vehicle
and issued a summons for a violation of Code § 46.2-1054. In
pertinent part, that statute reads as follows:
It shall be unlawful for any person to drive
a motor vehicle on a highway in the
Commonwealth with any object or objects,
other than a rear view mirror, sun visor, or
other equipment of the motor vehicle approved
by the Superintendent, suspended from any
part of the motor vehicle in such a manner as
to obstruct the driver's clear view of the
highway through the windshield, the front
side windows, or the rear window, or to alter
a passenger-carrying vehicle in such a manner
as to obstruct the driver's view through the
windshield.
Code § 46.2-1054 (emphasis added).
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The mere existence of an item dangling from the rearview
mirror does not constitute a violation of Code § 46.2-1054.
Thus, the presence of the item did not provide, ipse dixit,
"prima facie evidence that [Lynch] was violating the law." Upton
v. Commonwealth, 211 Va. 445, 447, 177 S.E.2d 528, 530 (1970).
The trooper did not testify as to any facts that would support
the conclusion that he had probable cause to stop the vehicle.
The evidence proved that the trooper had no reason to stop
the vehicle before he saw the item. He had observed Lynch
operating the vehicle and saw no indication that Lynch's vision
might have been impaired. Lynch was not speeding and was not
driving in an erratic manner.
Furthermore, Trooper Elliott could not describe the object
that he said he observed hanging from the mirror. He could not
provide details about its size, color, shape, or dimensions.
Because the trooper failed to give content to his subjective
conclusion that the item was "large," the trial judge had no
basis upon which to uphold the stop. Moreover, the trooper was
unable to state that after he stopped the vehicle he verified
that the item was positioned so as to obstruct the driver's clear
view of the highway. Trooper Elliott's observation, made as he
passed the vehicle while traveling in excess of 65 miles an hour
gave rise, at most, to a hunch that the object he saw would
obstruct the driver's view.
As this Court recently stated, "[t]he only difference
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between facts needed to establish probable cause and those needed
to prove guilt beyond a reasonable doubt is in the degree or
quantum of proof, not in the facts or elements of the offense."
Ford v. City of Newport News, ___ Va. App. ___, ___, ___ S.E.2d
___, ___ (1996) (citations omitted). "In assessing an officer's
probable cause for making a warrantless arrest, no less strict
standards may be applied than are applicable to a magistrate's
determination that an arrest warrant should issue." De Priest v.
Commonwealth, 4 Va. App. 577, 584, 359 S.E.2d 540, 543 (1987)
(quoting Washington v. Commonwealth, 219 Va. 857, 862, 252 S.E.2d
326, 329 (1979)), cert. denied, 488 U.S. 985 (1988). Based upon
the evidence in the record, the trial judge could not have
reasonably concluded that Trooper Elliott's observations provided
him with probable cause to believe Lynch was driving the vehicle
in violation of Code § 46.2-1054. Thus, I would hold that
because Trooper Elliott violated Lynch's Fourth Amendment rights
when he stopped the vehicle, the trial judge erred in refusing to
suppress the evidence.
III.
The evidence also establishes that the stop was a pretext
for conducting a search for contraband. See United States v.
Smith, 799 F.2d 704, 710 (11th Cir. 1986). The evidence proved
that Trooper Elliott had a custom of randomly seeking the
opportunity to search vehicles that he stopped for drugs,
weapons, or other items. On the day Trooper Elliott stopped
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Lynch, Trooper Elliott and Trooper Alessi were working as a team.
Acting together, Trooper Elliott and Trooper Alessi had just
stopped another vehicle for a traffic violation before they
stopped Lynch. Trooper Alessi said "it's possible" that they
searched that vehicle prior to stopping Lynch. Trooper Alessi
had a drug detection dog in his vehicle.
Trooper Elliott admitted that he requested assistance from
Trooper Alessi because he had "some thought of maybe searching
the vehicle." Other than the desire to search Lynch's vehicle,
the evidence fails to explain why Trooper Elliott sought Trooper
Alessi's assistance in giving a summons for a minor infraction at
4:30 p.m. on a June afternoon. The attempt to justify the stop
by pointing to the alleged traffic violation is belied by the
presence of the other trooper and "was merely a pretext to
legitimate the impermissible stop." United States v. Miller, 821
F.2d 546, 549 (11th Cir. 1987). In the absence of any probable
cause to conduct the stop, the only motivation to make the stop
was the quest to search.
IV.
I also disagree with the Commonwealth's argument that, in
any event, the evidence proved a valid consent to search. "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). The
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Commonwealth's evidence proved that after issuing the summons,
Trooper Elliott informed Lynch both that he was free to leave and
that he wanted to question him. While Trooper Elliott stood by
the driver's door interrogating Lynch, Trooper Alessi stood
opposite him at the passenger door.
Trooper Elliott did not ask Lynch for "permission" to search
the car and did not ask for Lynch's "consent." Although the
officers had consent forms approved by their department, they did
not use them. Rather, Trooper Elliott testified that he "asked
[Lynch] if he minded if [Trooper Elliott] took a look." The
officers also did not inform Lynch that he was not required to
allow a search. See Walls v. Commonwealth, 2 Va. App. 639, 654,
347 S.E.2d 175, 183-84 (1986).
The evidence further proved that Trooper Alessi asked Pegram
to exit the vehicle and "asked him if he would mind if [Trooper
Alessi] did a pat down of him." He testified that Pegram
"acknowledged that I could." "After feeling . . . objects [in
Pegram's pocket, Trooper Alessi] asked what it was." He
testified that Pegram "never really responded" even after he
asked Pegram the question several times. After Pegram failed to
respond, Trooper Alessi "asked him if he'd mind showing me the
objects in his pocket." When Pegram removed the objects, Trooper
Alessi opened two small closed containers and discovered cocaine.
In each instance the troopers relied upon their statements
"would mind" to indicate that they requested consent. However,
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the word "mind" has many shades of meaning, including to "give
heed to attentively in order to obey." Webster's Third New
International Dictionary, p. 1436-37 (1981). That word does not
unambiguously convey the same meaning as the word "consent."
When consent is based on an implication, as it was here, the
Commonwealth has a heavy burden of proof. United States v.
Impink, 728 F.2d 1228, 1232 (9th Cir. 1984); Elliotte v.
Commonwealth, 7 Va. App. 234, 238, 372 S.E.2d 416, 419 (1988).
The words used, the failure to inform the men that they could
refuse the search, and the failure to use the approved "consent
form," negate the suggestion of voluntary consent.
V.
In discharging its burden, the Commonwealth also 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 search that resulted in the discovery of the
evidence occurred promptly after Trooper Elliott had unlawfully
detained Lynch and issued him a traffic summons. When "'[t]he
evidence obtained pursuant to [a] . . . voluntary consent to
search [is obtained] . . . by exploitation of [the initial]
illegality rather than by means sufficiently distinguishable to
be purged of the primary taint,'" the evidence must be
suppressed. Hall v. Commonwealth, 22 Va. App. 226, 229, 468
S.E.2d 693, 695 (1996)(citation omitted). The search of the
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vehicle was contemplated before the stop, when Trooper Elliott
called Trooper Alessi, and occurred only after the troopers had
unlawfully detained Lynch and issued the summons. Furthermore,
Trooper Elliott testified that he only questioned Lynch because
he "intended [to ask] . . . for a consent to search the vehicle."
Thus, the cocaine discovered during this search was obtained as
a result of illegal means and was not sufficiently attenuated
from the illegal seizure to "purge the taint" of the seizure.
Walls, 2 Va. App. at 654-55, 347 S.E.2d at 184.
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. The temporal proximity of the illegal seizure
and the presumed "consent," the lack of intervening
circumstances, and the purpose and flagrancy of the troopers all
lead to the conclusion that the causal connection between the
illegal seizure and the "consent" remained unbroken. See
Commonwealth v. Ealy, 12 Va. App. 744, 755, 407 S.E.2d 681, 688
(1991). No evidence indicates that these persons, who were
stopped and given a traffic summons, and who were flanked by the
officers, were told or knew that they had a right to refuse the
search of the vehicle.
VI.
The evidence also proved that after Lynch was arrested,
Trooper Elliott read Lynch Miranda warnings. "[W]hen [Trooper
Elliott] asked if [Lynch] understood them, he stated, yes, sir,
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and when [Trooper Elliott] asked if he would like to waive them
and talk to us, he stated, I don't guess so." Trooper Elliott
also testified that Trooper Alessi then "advised . . . Lynch that
he knew that he had invoked his rights to an attorney . . . but
that [Trooper Alessi] wanted to advise him [that] . . . if he
wanted to try and help hi[m]self by maybe telling us about anyone
who sold drugs in Goochland or even Richmond . . . , we would be
willing to try and work with him." During his own testimony,
Trooper Alessi acknowledged that after Lynch requested an
attorney, he advised Lynch to contact him if he wanted to "help
himself out" by providing information of drug dealing. After
Alessi's "advice," Lynch admitted possessing the cocaine and
informed the officers where he had purchased it.
"[W]hen an accused who is in custody makes a request for
assistance of counsel, 'the interrogation must cease until an
attorney is present.'" Hines v. Commonwealth, 19 Va. App. 218,
220, 450 S.E.2d 403, 404 (1994)(emphasis omitted)(quoting Miranda
v. Arizona, 384 U.S. 436, 474 (1966)). Any further interrogation
initiated by the police is prohibited. Edwards v. Arizona, 451
U.S. 477, 484-85 (1981). Interrogation includes express
questioning and its "functional equivalent." Rhode Island v.
Innis, 446 U.S. 291, 300-01 (1980). Clearly, interrogation is
not limited to questions and may include other communications.
The functional equivalent of questioning includes "any words or
actions on the part of the police . . . that the police should
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know are reasonably likely to elicit an incriminating response
from the suspect." Id. at 301. A prohibited interrogation has
occurred if "an objective observer would view an officer's words
or actions as designed to elicit an incriminating response."
Blain v. Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d 838, 841
(1988).
Considering that the officers had just arrested Lynch for
cocaine possession and unsuccessfully had sought to question him,
an objective observer would view Trooper Alessi's "advice" to
cooperate with the police as a means of eliciting an
incriminating response from Lynch. See United States v. Montana,
958 F.2d 516, 518-19 (2d Cir. 1992); United States v. Johnson,
812 F.2d 1329, 1331 (11th Cir. 1986). Once Lynch had denied
owning the drugs and invoked his right to an attorney, the effect
of advising him of an opportunity to cooperate was to convey
disbelief in his response and to invite waiver of his request for
an attorney. Obviously, either Trooper Alessi or a prosecutor
could have spoken with Lynch's attorney to seek Lynch's
cooperation. By offering to be lenient if Lynch provided
information regarding drug dealing in Goochland and Richmond,
Trooper Alessi obviously sought a response. The trooper's offer
to be helpful to Lynch if Lynch was cooperative was an
undisguised attempt to initiate discussion and further
conversation. By seeking to provoke Lynch into further
communication and discussion immediately after Lynch invoked his
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right to an attorney, Trooper Alessi engaged in the "functional
equivalent" of interrogation. Therefore, Lynch's statements
concerning his possession and purchase of the cocaine should have
been suppressed. See Hines, 19 Va. App. at 221-22, 450 S.E.2d at
404-405.
For these reasons, I would hold that the trial judge erred
in refusing to suppress the cocaine and Lynch's statements.
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