Davis v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia

LOLITA RENEE DAVIS
OPINION BY
v. Record No. 0020-01-1 JUDGE G. STEVEN AGEE
FEBRUARY 5, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Joseph A. Leafe, Judge

William P. Robinson, Jr. (Robinson, Neeley &
Anderson, on brief), for appellant.

Marla Graff Decker, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.

Lolita Renee Davis (Davis) entered a conditional plea of

guilty in the Circuit Court of Norfolk to possession of heroin

with intent to distribute, in violation of Code § 18.2-248,

reserving the right to appeal the trial judge's denial of her

motion to suppress under Code § 19.2-254. On appeal, she

contends (1) the search was the result of an unlawful detention

and (2) the arresting officers lacked jurisdiction to seize her

and perform the search. She avers any evidence gathered in the

illegal search must be suppressed, as well as her ensuing

confession. For the reasons that follow, we reverse the trial

court's denial of the motion to suppress.
 I. BACKGROUND

On November 19, 1997, Detective Chappell of the City of

Portsmouth Police Department received information from an

informant that "a black female would be arriving in the parking

lot of the Wendy's [in the 400 block of North Military Highway

in the City of Norfolk] at 8:00 p.m." to make a "drop off of

heroin." According to the informant, the woman, with a light

brown complexion and braids, would be driving a four-door red

and gray vehicle, with the license plates containing "1134."

Detective Chappell and Portsmouth Detective Grover went to the

location and at approximately 8:10 p.m., Davis, who matched the

given description of the suspect, drove a red and gray,

four-door vehicle into the Wendy's parking lot. The last four

numbers of the vehicle's license plate were 1134.

When Davis parked her car, the detectives pulled their

unmarked police car behind the vehicle, parked and approached

the vehicle, but did not activate the police car's emergency

lights. They wore plain clothes with their badges shown. Each

officer's weapon was visible in a holster but was not drawn.

Detective Grover approached the driver's side of Davis'

vehicle, and Detective Chappell approached the passenger side.

Detective Grover knocked on Davis' window, and Davis either

rolled the window down or opened the car door to reply.

Detective Grover explained to Davis that the officers had

received "information that she was transporting narcotics in the

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vehicle." The detective testified that he asked, in a

conversational tone, if he could search Davis and her vehicle

but did not inform her that she could refuse the request. Both

officers testified Davis consented and stepped out of her

vehicle. 1 According to Detective Chappell, Davis was "completely

cooperative" and gave him permission to search her pocketbook.

Once Davis vacated the vehicle and the detectives began a

cursory search of it, Davis was handcuffed until a female

officer was able to perform a protective pat-down. Detective

Chappell read Davis "her rights" even though he did not consider

her in custody, because he believed they would find drugs in her

vehicle. Davis said that she understood her rights. The

detectives also asked Davis if it would be alright to move her

vehicle to a nearby location, approximately 100 yards away.

Davis consented to this request. The detectives took control of

and moved the vehicle.

Once the vehicle was moved, and before a thorough search

was performed, Detective Chappell removed the handcuffs from

Davis. She waited in a nearby police vehicle while the

detectives completed their search, which led to the discovery of

heroin. The detectives then placed Davis under arrest and

transported her to the City of Norfolk Police Department.

1
Davis testified she did not consent to the search.

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 At the police station, Davis was presented with a consent

form advising her of her right to remain silent. Davis reviewed

and signed the form. She then waived her right to remain silent

and gave a written statement that she was to deliver drugs to an

unknown subject. For her service in that regard, she was to be

paid $200.

II. THE DETENTION

Davis first argues that she was detained by the police

officers in violation of the Fourth Amendment and, therefore,

the trial court erred in finding that her encounter with the

officers was consensual 2 and that any consent to the search was

voluntarily given.

A. STANDARD OF REVIEW

The Fourth Amendment provides that "the 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. This protection does not

prohibit encounters between the police and citizens, but

prescribes limitations on those encounters. Police officers are

free to approach individuals and ask questions. "The purpose of

2
The Commonwealth conceded before the trial court and on
brief that its case is based only on a consensual encounter and
search of Davis. The Commonwealth specifically conceded that
the police officers lacked a reasonable articulable suspicion
and probable cause to believe Davis was involved in criminal
activity. Our consideration is thus limited to whether Davis
consensually interacted with the police officers and voluntarily
gave her consent for them to search her vehicle.

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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.'" United States

v. Martinez-Fuerte, 428 U.S. 543, 554 (1976).

"A consensual encounter occurs when police officers

approach persons in public places 'to ask them questions,'

provided 'a reasonable person would understand that he or she

could refuse to cooperate.'" Payne v. Commonwealth, 14 Va. App.

86, 88, 414 S.E.2d 869, 870 (1992) (quoting United States v.

Wilson, 953 F.2d 116, 121 (4th Cir. 1991)). "Such encounters

'need not be predicated on any suspicion of the person's

involvement in wrongdoing,' and remain consensual 'as long as

the citizen voluntarily cooperates with the police.'" Id.

(citations omitted). "Law enforcement officers do not violate

the Fourth Amendment merely by approaching an individual on the

street, identifying themselves and asking the individual

questions." Buck v. Commonwealth, 20 Va. App. 298, 301-02, 456

S.E.2d 534, 535-36 (1995).

"A person has been 'seized' within the meaning of the

Fourth Amendment only if, in view of all the circumstances

surrounding the incident, a reasonable person would have

believed that he was not free to leave." United States v.

Mendenhall, 446 U.S. 544, 554 (1980). The determination of

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seizure is objective and is judged by whether a reasonable

person would have felt restrained.

"At a hearing on a defendant's motion to suppress, the

Commonwealth has the burden of proving that a warrantless search

or seizure did not violate the defendant's Fourth Amendment

rights." Reel v. Commonwealth, 31 Va. App. 262, 265, 522 S.E.2d

881, 882 (2000). "It[, however,] is well established that, on

appeal, appellant carries the burden to show, considering the

evidence in the light most favorable to the Commonwealth, that

the denial of a motion to suppress constitutes reversible

error." Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437

S.E.2d 232, 233 (1993).

"This Court is 'bound by the trial court's findings of

historical fact unless "plainly wrong" or without evidence to

support them and we give due weight to the inferences drawn from

those facts by resident judges and local law enforcement

officers.'" Neal v. Commonwealth, 27 Va. App. 233, 237, 498

S.E.2d 422, 424 (1998) (citation omitted). However, whether a

defendant is seized in violation of the Fourth Amendment is a

question that is reviewed de novo on appeal. See Mendenhall,

446 U.S. at 551 n.5.

B. ANALYSIS

The trial court determined that a reasonable person in

Davis' situation would have felt free to refuse to cooperate and

leave. Yet, the evidence, viewed in the light most favorable to

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the Commonwealth, reveals the police officers, who stood at both

front doors of the vehicle at night, directly and specifically

informed Davis they believed she was there to deliver heroin.

The police officers, whose badges and guns were clearly visible,

at no time informed Davis that she could leave or that she could

refuse to cooperate. The record reflects that Davis would have

been unable to restart her car and back out of the parking space

because the police officers were parked behind her. 3

The Commonwealth cites McCain v. Commonwealth, 261 Va. 483,

545 S.E.2d 541 (2001), and Garrison v. Commonwealth, 36 Va. App.

298, 549 S.E.2d 634 (2001), as authority to demonstrate the

encounter between Davis and the police was consensual. Both

cases are readily distinguishable from the case at bar.

In McCain, the Supreme Court of Virginia held an encounter

to be consensual where the officer "had not restrained McCain's

movement in any manner that would have constituted a seizure of

his person." 261 Va. at 491, 545 S.E.2d at 546. The officer

simply approached McCain and requested non-specific

identification "without any show of force or display of

authority that would have led a reasonable person to believe

that he was not free to leave the scene of the encounter." Id.

McCain's freedom of movement was evidenced by the fact that he

walked thirty-five feet away from the officer, after stating

3
The record does not reflect, however, whether she could
have driven forward.

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that he did not want to submit to a pat-down search. Id.

Moreover, McCain is further distinguishable from this case

because the police did not tell McCain he was identified as a

suspect in any crime.

In Garrison, we held an encounter to be consensual where

the defendant, aware that he was being sought for questioning

regarding a theft, voluntarily approached the investigating

officers and interacted with them, even though the officers

repeatedly informed him that he was free to leave. Those facts

are conspicuously absent from the case at bar.

The case before us is controlled by our decision in McGee

v. Commonwealth, 25 Va. App. 193, 487 S.E.2d 259 (1997). In

McGee, we held the defendant had been seized for Fourth

Amendment purposes when three uniformed police officers, acting

on an anonymous tip, "approached the defendant and 'stated to

him that [they] had received a call that he was on this corner

selling drugs and that he matched the description' of the

individual." Id. at 196, 487 S.E.2d at 260. The defendant was

also never informed he could leave the officers' presence. We

held:

[W]hen a police officer confronts a person
and informs the individual that he or she
has been specifically identified as a
suspect in a particular crime which the
officer is investigating, that fact is
significant among the "totality of
circumstances to determine whether a
reasonable person would feel free to leave."
When confronted with an accusation from

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 police, such as, "we know you are selling
drugs from this location, let us search
you," no reasonable person would feel free
to leave.

Id. at 200, 487 S.E.2d at 262 (emphasis added). 4

McGee firmly establishes the proposition, in a Fourth

Amendment context, that where the police direct a specific

allegation of criminal wrongdoing to the suspect, that factor is

highly significant among the totality of factors in determining

whether an encounter between a citizen and police is consensual.

While an allegation of criminal wrongdoing does not

automatically negate a finding of a consensual encounter, a

court must review with particular scrutiny the voluntary status

of an encounter which is preceded by a specific allegation of

the suspect's criminal wrongdoing.

4
Our holding in McGee that a seizure occurred was not
solely based on the statement to the defendant that he was
suspected of presently dealing drugs, but on the totality of the
circumstances, which included the fact that the three uniformed
police officers, who suddenly approached the defendant,

did not by their words or actions suggest
that the defendant was free to leave. The
unmistakable message conveyed to the
defendant was that the officers had reason
to suspect that he was [presently] selling
drugs and that they were detaining him to
investigate his [current] activity. A
reasonable person would have believed . . .
that he or she was being detained and was
required to [submit to the officers].

Id. at 201, 487 S.E.2d at 263.

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 Guided by our holding in McGee, the totality of the

circumstances in this case reflects the encounter between the

police officers and Davis was not consensual. As in McGee, it

is highly significant among the totality of the circumstances

that the police immediately and directly told Davis she was the

suspect in the particular crime of heroin possession at that

very place and moment. Additionally, the officers surrounded

Davis' vehicle at night and did not inform Davis of her right to

leave or to refuse a search. Under these circumstances, no

reasonable person would have believed he or she was free to

leave and ignore the police officers' requests. Upon de novo

review, we find the police seized Davis by their show of

authority, and under the totality of the circumstances the

encounter was not consensual. This seizure violated the Fourth

Amendment because the Commonwealth conceded the police officers

lacked a reasonable, articulable suspicion or probable cause to

believe Davis was involved in criminal activity. Id.

III. THE SEARCH

Our analysis, though, does not end with our conclusion that

Davis was unlawfully detained because the taint associated with

an unlawful detention may be removed by a sufficiently

attenuated consent to search. At trial, the Commonwealth

maintained the search that uncovered the heroin was performed

with Davis' consent and bore the burden of proving by a

preponderance of the evidence that the consent was voluntary.

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See Camden v. Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38,

39 (1994); see also Bumper v. North Carolina, 391 U.S. 543, 548

(1968). We review the trial court's findings of historical fact

only for "clear error," but we review de novo the trial court's

application of defined legal standards to the particular facts

of a case. See Jefferson v. Commonwealth, 27 Va. App. 1, 10-11,

497 S.E.2d 474, 478-79 (1998).

"[S]earches made by the police pursuant to a valid consent

do not implicate the Fourth Amendment." McNair v. Commonwealth,

31 Va. App. 76, 82, 521 S.E.2d 303, 306 (1999) (en banc) (citing

Mincey v. Arizona, 437 U.S. 385, 390 (1978)). Consent to a

search must be freely and voluntarily given. Schneckloth v.

Bustamonte, 412 U.S. 218, 227 (1973). "[T]he determination of

consent to search is subjective." United States v. Wilson, 895

F.2d 168, 171 (4th Cir. 1990).

Voluntariness is a question of fact to be
determined from all the circumstances, and
while the subject's knowledge of a right to
refuse is a factor to be taken into account,
the prosecution is not required to
demonstrate such knowledge as a prerequisite
to establishing a voluntary consent.

Schneckloth, 412 U.S. at 248-49; accord Limonja v. Commonwealth,

8 Va. App. 532, 540, 383 S.E.2d 476, 481 (1989) (en banc).

"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

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(5th Cir. 1978). Even if the Commonwealth discharges its heavy

burden to prove a voluntary consent, the Commonwealth then must

establish that the consent was "sufficiently an act of free will

to purge the primary taint" of the illegal detention. Wong Sun

v. United States, 371 U.S. 471, 486 (1963). Although the trial

court found that Davis' consent to search was given "freely and

voluntarily," the principle is well established that "[t]he 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, 178 (1986) (citations omitted). If Davis' consent was

obtained as a product of the illegal detention, it is invalid as

a "fruit of the poisonous tree." See Wood v. Commonwealth, 27

Va. App. 21, 30, 497 S.E.2d 484, 488 (1998); Commonwealth v.

Ealy, 12 Va. App. 744, 757, 407 S.E.2d 681, 689 (1991) (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"'" (citations

omitted)).

In determining whether consent was "sufficiently attenuated

from the [illegal detention] to purge its taint," we have

"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

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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. Therefore, if Davis' consent, even if

voluntarily given, was not sufficiently attenuated from the

unlawful detention as to "purge the taint" of that event, the

evidence must be suppressed. See Walls, 2 Va. App. at 655, 347

S.E.2d at 185.

While the trial court determined Davis' consent was

voluntarily given, it did not consider whether the consent was

tainted because it failed to recognize the unlawful detention.

We, however, find the evidence shows that the consent was

given contemporaneous with or immediately after the illegal

detention began. The police officers obtained Davis' consent to

the search in the initial conversation. No intervening

circumstances occurred to break the chain of events between the

illegal detention and the consent to search. See id. at 654,

347 S.E.2d at 184. No credible evidence supports an argument

that the consent, given contemporaneous with or immediately

after the detention began, was purged of the taint of the

unlawful detention, particularly where Davis was not informed of

her right to refuse consent. The police misconduct in

unlawfully detaining Davis was directly related to the ensuing

event of her giving consent; therefore, the consent in this case

is invalid. See id. at 655, 347 S.E.2d at 184.

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 Because the evidence proved that the consent was tainted by

the illegal detention, the trial court erred in denying Davis'

motion to suppress the heroin. "Consent to search obtained as

the result of an illegal detention is 'not an independent source

of the evidence, but rather [is] an exploitation of the unlawful

[stop].'" McGee, 25 Va. App. at 204, 487 S.E.2d at 264 (citing

Ealy, 12 Va. App. at 757, 407 S.E.2d at 689).

IV. THE SUBSEQUENT CONFESSION

On appeal, Davis also challenges the trial court's failure

to suppress her confession, made at the Norfolk Police

Department after her arrest. She contends the confession is

inadmissible due to the preceding illegal search and seizure.

We agree.

The discovery of the heroin was a direct result of the

illegal search and seizure of Davis and was, therefore,

inadmissible. The subsequent arrest of Davis, which was based

directly on the illegally obtained evidence, was likewise

illegal. Furthermore, Davis' statements to the police,

confessing to the transportation of narcotics, following the

arrest "flowed one from the other with no discernable break in

the chain of causation"; thus, those statements were the

proverbial fruit of the poisonous tree and were also

inadmissible. Deer v. Commonwealth, 17 Va. App. 730, 737, 441

S.E.2d 33, 38 (1994); see also Whitaker v. Commonwealth, 37 Va.

App. 21, 35, 553 S.E.2d 539, 546 (2001); Davis v. Commonwealth,

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35 Va. App. 533, 543, 546 S.E.2d 252, 257 (2001). The trial

court thus erred in failing to suppress Davis' confession.

Therefore, we reverse the conviction as the trial court

erred in failing to grant the motion to suppress, and remand to

the trial court for further proceedings if the Commonwealth be

so advised. 5

Reversed and remanded.

5
Because we reverse for the foregoing reasons, we do not
address Davis' assignment of error concerning the authority of
the Portsmouth police officers to arrest in the City of Norfolk
under the circumstances of this case.

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