Sheler v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Alexandria, Virginia

ALLEN DERRICK SHELER
OPINION BY
v. Record No. 2424-00-4 JUDGE ROSEMARIE ANNUNZIATA
JULY 9, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge

Joan C. Ruff (J. Amy Dillard, Deputy Public
Defender, on brief), for appellant.

Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Allen Derrick Sheler appeals his conviction by a jury for

robbery, abduction with the intent to extort pecuniary benefit,

and use of a firearm while committing robbery and abduction.

Sheler contends that the trial court erroneously denied his

motion to suppress evidence of glass fragments found on one of

Sheler's shoes. For the reasons that follow, we reverse and

remand.

I.

BACKGROUND

Under accepted principles, we review the evidence in the

light most favorable to the Commonwealth, the party prevailing

below. Great Eastern Resort Corp. v. Gordon, 31 Va. App. 608,
610, 525 S.E.2d 55, 56 (2000). At about 8:00 a.m. on December

27, 1998, two men wearing masks and gloves robbed a Wendy's

restaurant located on South Van Dorn Street in Alexandria,

Virginia. The men gained entry by breaking the glass in two

separate doors of the establishment. The restaurant was not yet

open for business, and three employees were inside, Elsy

Benitez, Sunvil Dwived, and Mohamed Yousef.

One of the intruders carried a handgun wrapped in cloth.

The taller of the two men held the gun and used it in a

threatening manner, demanding that Yousef open the safe. Once

the safe was open, the shorter robber placed the money from the

safe in a french fries box. The employees were ordered into a

freezer, where they were instructed to remain while the robbers

fled. When the employees came out of the freezer about ten to

fifteen minutes later, Yousef called the police from a public

telephone outside the building because the line in his office

had been disconnected.

Joseph Fisher, a firefighter and former private

investigator who was at a nearby ATM at the time of the

incident, saw Sheler's vehicle at the Wendy's restaurant about

the time of the robbery/abduction. He wrote down the vehicle's

license plate number after observing suspicious conduct around

the vehicle. The vehicle, a 1997 Plymouth Neon, was registered

to Sheler. When the police traced the vehicle back to Sheler,

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they discovered that he had reported the vehicle stolen that

day.

The morning of the robbery/abduction, Detective Durkin

spoke with Sheler's parents and told them he was investigating a

robbery and needed to speak with Sheler concerning the fact that

his car may have been involved in the crime. Durkin asked

Sheler's parents to telephone him if they learned his

whereabouts.

The police were advised that Sheler was at the home of a

friend in Prince Georges County, Maryland. About five hours

after the crimes had been committed, Durkin, accompanied by two

other officers, went to the residence. Two officers in uniform

from Prince Georges County, Maryland were already at the

residence, at Durkin's request, for jurisdictional purposes.

The Maryland officers did not draw their guns.

Officer Durkin knocked on the door. The Maryland officers

waited outside the residence. The Alexandria officers entered

the home and found Sheler sitting in the living room wearing

blue jeans and dark colored sneakers. Sheler's general

appearance was consistent with that of one of the robbers.

Durkin identified himself, displayed his badge, and told Sheler

that they wanted to ask some questions about his car. He said

he "would like [Sheler] to come back to Virginia where [they]

could take a statement" from him. Neither Officer Durkin nor

the other Alexandria officers drew their weapons or mentioned
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the robbery. Sheler said, "okay," and accompanied the officers

to the Alexandria police station. The officers did not touch

Sheler or use a harsh tone or profanity.

The officers neither told him he did not have to come nor

that he had to accompany them. On the way to the station,

Sheler sat in the back seat of the police car along with one of

the three Alexandria officers. He was not handcuffed.

During the interview at the station, Durkin asked to see

Sheler's shoes because he believed that the robbers had likely

walked through broken glass from the glass doors broken at the

crime scene and that they had picked up glass fragments on the

soles of their shoes. Sheler testified that Detective Durkin

told him that he had glass on the bottom of his shoes and then

told him to take off his shoes. Durkin testified that he did

not see the glass fragments until Sheler took off his shoes.

Specifically, Durkin "asked [Sheler] if [Durkin] could look at

[Sheler's] shoes." In response, Sheler "kicked them off his

feet and [Durkin] picked them up and looked at them." Durkin

saw that there were glass fragments on the sole of one of

Sheler's shoes and therefore seized them. He then seized

Sheler's blue jeans so that they too could be inspected for

glass fragments. The police took Sheler home after the

interview.

The police later obtained a search warrant and searched

Sheler's car. They found and seized additional glass samples
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and a paper bag from Wendy's containing a corner of a $20 bill,

a CD, and a variety of latent prints, one of which was that of

Sheler.

The glass particles acquired as a result of the seizure of

Sheler's shoes and pants were admitted into evidence over his

objection. A forensic science supervisor with the Division of

Forensic Science Crime Laboratory compared the optical and

physical properties of the glass found on Sheler's shoes and

pants with the glass recovered from the doors of the Wendy's

restaurant. He testified that three particles of glass

recovered from Sheler's shoes and two particles of glass from

Sheler's pants were consistent with the properties of glass

found in the door of the restaurant.

The trial court held that no illegal search or seizure

occurred and, therefore, denied Sheler's motion to suppress the

evidence of the glass fragments. It is from this ruling that

Sheler now appeals.

II.

ANALYSIS

On appeal, Sheler contends the trial court erred in denying

his motion to suppress the glass fragments because: 1) the

fragments found on the sole of Sheler's shoe and his clothes

were the fruit of an unlawful seizure of his person; and 2) the

fragments were the fruit of an unlawful search and seizure of

Sheler's shoes. Although we find that the seizure of Sheler's
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person was lawful, we reverse on the ground that the police

unlawfully searched Sheler's shoes.

In reviewing the trial court's denial of a motion to

suppress on appeal, we will review the evidence and all

reasonable inferences arising from it in the light most

favorable to the Commonwealth, the party prevailing below.

Dickerson v. Commonwealth, 35 Va. App. 172, 543 S.E.2d 623

(2001). The burden to show that the denial of the motion to

suppress constituted reversible error rests with the defendant.

Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232,

233 (1993).

A. Legality of the Seizure

The trial court found that Sheler had voluntarily

accompanied the police to the station and, thus, no unlawful

arrest or seizure had occurred. We agree.

A person is seized within the meaning of the Fourth

Amendment whenever there is a show of official authority such

that a reasonable person would have believed that he was not

free to terminate the encounter. Florida v. Royer, 460 U.S. 491

(1983) (plurality opinion) (citing United States v. Mendenhall,

446 U.S. 544, 554 (1980)); Moss v. Commonwealth, 7 Va. App. 305,

307, 373 S.E.2d 170, 171-72 (1988). An objective test

determines whether a reasonable person would have believed

himself or herself free to terminate the encounter "in view of

all of the circumstances surrounding the incident." Mendenhall,
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446 U.S. at 554; see also McGee v. Commonwealth, 25 Va. App.

193, 199-200, 487 S.E.2d 259, 262 (1997) (en banc).

Examples of circumstances that might
indicate a seizure, even where the person
did not attempt to leave, would be the
threatening presence of several officers,
the display of a weapon by an officer, some
physical touching of the person of the
citizen, or the use of language, or tone of
voice indicating that compliance with the
officer's request might be compelled.

Mendenhall, 446 U.S. at 554; see Weathers v. Commonwealth, 32 Va.

App. 652, 659, 529 S.E.2d 847, 850-51 (2000).

Sheler, relying on our decision in McGee, argues that the

officers' "actions and words" conveyed the message that Sheler

might be or might become a suspect and, therefore, constituted a

show of official authority such that he did not feel free to

leave. In McGee, we held that, "[w]hen the police expressly

inform an individual that they have received information that the

individual is engaging in criminal activity, the police 'convey a

message that compliance with their requests is required.'" 25

Va. App. at 200, 487 S.E.2d at 262 (quoting Florida v. Bostick,

501 U.S. 429, 435 (1991)); see also Royer, 460 U.S. at 501

(finding a seizure where officers identified themselves as

narcotics agents, told defendant that he was suspected of

transporting narcotics, and asked him to accompany them to the

police room while retaining his plane ticket and driver's

license).

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 Sheler's reliance on McGee is misplaced. In McGee, the

defendant was told that the officers had "received a call that

[he] was on this corner selling drugs and [that he] matched the

description." 25 Va. App. at 196, 487 S.E.2d at 260. We found

that this statement conveyed an unmistakable message to McGee

that the officers suspected he was selling drugs and that they

were detaining him to investigate his activity. Id. In this

case, the officer did not tell Sheler that he had been

specifically identified as a suspect in a particular crime that

the officer was investigating. Id. at 200, 487 S.E.2d at 262.

Indeed, the record shows that Officer Durkin asked Sheler to

come to the station to answer questions about his car and

obtained his consent before mentioning the robbery.

The law is well settled that mere questioning by the police

does not constitute a seizure. See Bostick, 501 U.S. at 434;

Mendenhall, 446 U.S. at 553-54; Richards v. Commonwealth, 8 Va.

App. 612, 615, 383 S.E.2d 268, 270 (1989). Consequently, where

the police inform an individual that they are conducting a

general investigation in response to a report, the encounter,

without more, is not a seizure. McGee, 25 Va. App. at 199, 487

S.E.2d at 262; Royer, 460 U.S. at 497; Williams v. Commonwealth,

21 Va. App. 263, 266, 463 S.E.2d 679, 681 (1995).

Sheler also contends that the officers made a show of force

because five officers were present who displayed their badges of

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authority and entered his friend's home without permission. We

disagree.

Considering the totality of the circumstances, we find that

the encounter was unaccompanied by coercion or a show of force

by the officers. Although several officers went to the house,

only Durkin spoke with the defendant inside the residence.

Durkin knocked on the door to the house, introduced himself to

the person who opened the door and asked if the defendant was

there. The person at the door "let [Durkin] in." None of the

officers touched Sheler, blocked his path, used threatening or

intimidating language or tone of voice, accused Sheler of a

crime, or displayed their weapons. He was not handcuffed or

otherwise placed in custody. While the record establishes that

there were five officers present, this fact standing alone does

not transform an encounter into a seizure. Cf. Watson v.

Commonwealth, 19 Va. App. 659, 663, 454 S.E.2d 358, 361 (1995)

(finding that mere presence of police, insufficient in itself to

create a seizure, is sufficient to continue a seizure where

police had previously handcuffed and restrained defendant).

Sheler testified that he believed he would be arrested if

he did not accompany the officers to the Alexandria police

station. Sheler explained that he did not feel free to leave

because "if [he] didn't cooperate, [the officer] would start

finding out that [he] did whatever."

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 It is worth noting that the test of whether a reasonable

person would feel free to leave an encounter "presupposes an

innocent person." Bostick, 501 U.S. at 429. Here, Sheler

testified that he believed he would be arrested if he did not

accompany the officers to the Alexandria police station. Sheler

explained that he did not feel free to leave because "if [he]

didn't cooperate, [the officer] would start finding out that

[he] did whatever." Consequently, his subjective fear of arrest

stemmed from his guilt, and not from police activity. Sheler

admitted that the police told him only that they wanted to ask

him questions about his car and that he agreed to go with them

to the station. A reasonable, innocent person would not be so

intimidated by an officer requesting to ask questions about his

car that he would not feel free to leave. Because the police

did not make a show of official authority such that a reasonable

person would have believed he or she was not free to terminate

the encounter, we find that Sheler was not seized within the

meaning of the Fourth Amendment.

B. Illegality of the Search

The trial court ruled that the search was lawful and

admitted the evidence, finding that an individual has no

reasonable expectation of privacy in the soles of his or her

shoes. 1 Sheler maintains, however, that he had a reasonable

1
Because the trial court limited its analysis of the
lawfulness of the search to this legal conclusion, expressly
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expectation of privacy in the sole of his shoe and that the

glass fragments found on his shoe, and subsequently his pants,

should therefore be suppressed as the fruit of an unlawful

search. We agree.

The Fourth Amendment provides, in pertinent part, that

"[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated." U.S. Const. amend. IV.

Subject to several well established exceptions, warrantless

searches of any place or thing in which a person has a

reasonable expectation of privacy are unreasonable. See Mincey

v. Arizona, 437 U.S. 385, 390 (1978); Reittinger v.

Commonwealth, 260 Va. 232, 235, 532 S.E.2d 25, 27 (2000).

Because an unlawful "search compromises the individual interest

in privacy," Horton v. California, 496 U.S. 128, 133 (1990),

"the Commonwealth has the burden of proving the legitimacy of a

warrantless search and seizure." Simmons v. Commonwealth, 238

ruling that it made no findings "whether . . . taking the
clothes [and the shoes] was voluntary or not," and, therefore,
did not address or resolve factual matters that underlay the
issue of consent, we do not reach the Commonwealth's contention
that Sheler voluntarily consented to the search. Stateren v.
Montgomery Ward and Co., 234 Va. 303, 305-06, 362 S.E.2d 324,
326 (1987) (finding "right result wrong reason" rule
inappropriate because the trial judge confined his decision to a
different ground); Driscoll v. Commonwealth, 14 Va. App. 449,
452, 417 S.E.2d 312, 313-14 (1992) (noting that the right result
wrong reason rule does not apply where "further factual
resolution is needed before the right reason may be assigned to
support the trial court's decision").

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Va. 200, 204, 380 S.E.2d 656, 659 (1989). On appeal, the trial

court's legal conclusion concerning when, or whether, an illegal

search occurred is reviewed de novo. Archer v. Commonwealth, 26

Va. App. 1, 8, 492 S.E.2d 826, 830 (1997); McGee, 25 Va. App. at

198, 487 S.E.2d at 261; see Mendenhall, 446 U.S. at 552, 555.

However, the appellate court is "bound by the trial court's

findings of historical fact unless 'plainly wrong' or without

evidence to support them and [it] give[s] due weight to the

inferences drawn from those facts by resident judges and local

law enforcement officers." McGee, 25 Va. App. at 198, 487

S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690,

699 (1996)).

To determine whether an individual has a reasonable

expectation of privacy in an item, we must give effect to "our

societal understanding that certain areas deserve the most

scrupulous protection from government invasion." Oliver v.

United States, 466 U.S. 170, 178 (1984). The trial judge's

ruling that a shoe constituted "areas of the outer apparel that

is visible to the world" and that Sheler had no reasonable

expectation of privacy in his shoes failed to give effect to

this principle.

The mere fact that a person's clothing and shoes are

visible to the public in some general way does not extinguish a

person's constitutionally protected expectation of privacy in

them. See Katz v. United States, 389 U.S. 347, 351 (1967)
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(finding that what one "seeks to preserve as private, even in an

area accessible to the public, may be constitutionally

protected"). Indeed, several of our sister jurisdictions have

found that an individual has a reasonable expectation of privacy

in the clothing he or she wears. See, e.g., Evans v. State, 987

S.W.2d 741, 743 (Ark. App. 1999) (holding that "[a]n

individual's expectation of privacy in a purse is probably

greater than in any other property except the clothing worn by a

person"); Samuel v. State, 895 S.W.2d 487, 489 (Tex. Ct. App.

1995) (holding that "a person has a reasonable expectation of

privacy in the clothes he wears"); State v. Joyce, 639 A.2d

1007, 1013 (Conn. 1994) (holding that "generally there is a

reasonable expectation of privacy in the clothes that one

wears"); People v. Chernowas, 314 N.W.2d 505, 507 (Mich. App.

1982) (holding that "a defendant has a legitimate expectation of

privacy in his person and clothing").

We find that an individual's expectation of privacy in his

or her shoes is an interest that society is willing to accept as

reasonable. Generally, people do not expect other persons will

seize the shoes or other garments they wear and manipulate them

to explore and expose unseen features. By seizing the shoe, the

detective was able to manipulate the shoe and expose areas of

the shoe not readily seen. This conduct far exceeded the

contact Sheler and other citizens might reasonably expect from

the police or other members of the public. The search in this
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case was as intrusive as removing and searching a person's hat,

blouse, skirt, or jacket because of a suspicion that a portion

of the garment which is not exposed to the public's normal view

contains a minute fragment of an incriminating substance.

Furthermore, Sheler exhibited a subjective expectation that

the soles of his shoes remain free from close inspection. Bond

v. United States, 529 U.S. 334, 338 (2000); Shaver v.

Commonwealth, 30 Va. App. 789, 795, 520 S.E.2d 393, 396 (1999).

He did not display the crevices of the soles of his shoes in any

way or otherwise expose them to public scrutiny. Nothing in the

record suggests that the small piece of glass in the sole of

Sheler's shoe could have been seen by the public. The sole of

Sheler's shoe did not proclaim its contents by "transparen[cy,]

. . . distinctive configuration," or otherwise, so as to negate

his reasonable expectation of privacy. United States v.

Williams, 41 F.3d 192, 197 (4th Cir. 1994). Rather, the

evidence proved that the detective only became aware of the

glass because he asked Sheler "[t]o take [his shoe] off . . . so

that [the detective] could look at the bottoms." The detective

was able to discern "a little piece of glass in the sole of the

shoe" only after seizing the shoe, turning the shoe over, and

making close inspection of it. After he found the glass on

Sheler's shoes, he seized his pants.

Because Sheler had a reasonable expectation of privacy in

the object searched, the trial court erred in admitting the
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glass fragments found as a result of that search and the

subsequent search of his pants on that ground. Wong Sun v.

United States, 371 U.S. 471, 484 (1963) (holding that evidence

found as a direct or indirect result of an unconstitutional

invasion must be excluded).

C. Reversible Error

We find that the trial court's error is reversible.

"[B]efore a federal constitutional error can be held harmless,

the court must be able to declare a belief that it was harmless

beyond a reasonable doubt." Chapman v. California, 386 U.S. 18,

24 (1967). Chapman "requir[es] the beneficiary of the

constitutional error to prove beyond a reasonable doubt that the

error complained of did not contribute to the verdict obtained."

Id. (citation omitted); see Bass v. Commonwealth, 31 Va. App.

373, 387, 523 S.E.2d 534, 541 (2000) (requiring appellate court

to assess "whether there is a reasonable possibility that the

evidence complained of might have contributed to the

conviction," to determine that a constitutional error was

harmless beyond a reasonable doubt (citations omitted)).

In this case, the evidence that Sheler's pants and shoes

contained glass fragments from the door the robbers broke to

enter the store conclusively placed him at the scene of the

crime and was thus probative of his identity as one of the

robbers. The evidence buttressed the manager's testimony that,

although he only "saw [the robber] briefly," he knew Sheler was
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the robber. See Williams v. Commonwealth, 32 Va. App. 395, 406,

528 S.E.2d 166, 171-72 (2000) (holding that testimony of one

witness which a trier of fact may have found inconclusive can

become very convincing when other evidence corroborates it).

Moreover, the other evidence of identity was not overwhelming.

Although Sheler's car was observed at the scene of the robbery,

his car had been reported stolen earlier that day. The manager,

the only eyewitness able to describe more than the clothes,

race, and height of the robber, provided testimony that "raised

issues of credibility and, for that reason, cannot be considered

'overwhelming.'" Cairns v. Commonwealth, 35 Va. App. 1, 16, 542

S.E.2d 771, 778 (2001). A reasonable possibility exists,

therefore, that the unlawfully seized evidence contributed to

Sheler's conviction. Therefore, the trial court's admission of

the illegally seized evidence was reversible error.

Accordingly, we reverse the judgment of the trial court and

remand for further proceedings, if the Commonwealth be so

advised.

Reversed and remanded.

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Benton, J., concurring.

I concur in Parts I and II(B) and in the judgment reversing

the convictions and remanding for a new trial.

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