COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
VINCENT DICKERSON
OPINION BY
v. Record No. 1120-00-3 JUDGE ROSEMARIE ANNUNZIATA
MARCH 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
B.A. Davis, III, Judge Designate
Philip G. Gardner (Gardner, Gardner, Barrow &
Sharpe, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant, Vincent Dickerson, appeals his conviction for
possession of cocaine with the intent to distribute. He contends
the trial court erroneously denied his motion to suppress
evidence that was obtained in violation of his Fourth Amendment
rights. For the following reasons, we affirm.
BACKGROUND
On August 20, 1999, a Danville Life Saving Crew truck was
headed west on Highway 58 between Danville and Martinsville when
it encountered a person in a black Ford Escort who would not
yield the right-of-way to the ambulance. Deputy Parker, a law
enforcement official with the Pittsylvania Sheriff's Department,
was on routine uniformed patrol when he received information from
his dispatcher reporting the incident. Deputy Parker also
received a description of the offending vehicle and its license
plate number. When Parker saw the ambulance coming in his
direction, he pulled his police car onto the highway from a
turnaround where he was positioned. He passed the ambulance and
got behind the vehicle that matched the description given to him
by the dispatcher. The vehicle was in the left lane traveling at
a high rate of speed in front of the ambulance. By using his
speedometer, Parker determined the vehicle was traveling at about
sixty-five miles per hour in a posted fifty-five
mile-per-hour zone.
Parker activated his emergency lights and siren to signal
the driver to stop. When the driver complied, Parker approached
the car and found Dickerson in the driver's seat. No other
occupants were in the car. Parker detected the odor of alcohol
on Dickerson's person and asked him if he had been drinking.
Dickerson responded that he had consumed one beer. He admitted
to Parker that he was "going sixty-five miles an hour."
Dickerson exited the vehicle at Parker's request and agreed
to perform field sobriety tests, all of which he satisfactorily
completed. As a result, Parker decided not to arrest Dickerson
for driving under the influence of alcohol and informed Dickerson
of that decision. He added, however, that Dickerson might get a
summons from the ambulance driver for failing to
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yield to an emergency vehicle. Parker then told Dickerson he was
"free to go."
As Dickerson was getting back into his vehicle, Parker asked
him if the car contained anything that Parker "should know
about," such as "dope, marijuana, roaches in the ashtray,
something, anything like that." When Dickerson responded in the
negative, Parker asked him if he smoked marijuana. Dickerson
admitted he did, qualifying his answer by stating, "not while he
was driving." Dickerson then added that "there [were] some
roaches in the ashtray."
After Dickerson's admission, Parker asked if he could look
inside Dickerson's car. Although Dickerson said, "no," to the
request, Dickerson reached into the vehicle, pulled out the
ashtray, and handed it to the deputy. Parker saw "numerous hand
rolled cigarette roaches" in the ashtray, and Dickerson admitted
they were marijuana cigarettes.
Parker again asked Dickerson for permission to look inside
the vehicle and Dickerson again responded, "no." However, Parker
began to search the vehicle and found inside the passenger
compartment three plastic bags of an "off-white rock substance"
and one plastic box containing a scale. Parker asked another
deputy, Deputy Morrison, who had earlier arrived on the scene as
back-up, to unlock the truck and search it. Morrison found in
the trunk seven small plastic bags of an off-white
rock-like substance, one plastic bag containing a white powder
substance, and another set of scales. Parker placed Dickerson
under arrest.
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Dickerson filed a motion to suppress the evidence, which
the trial court denied. He subsequently pled guilty to the
offense, reserving the right to appeal the trial court's ruling
on the suppression motion.
ANALYSIS
Dickerson contends the encounter with the officer following
the traffic stop was not consensual and that because the seizure
was not based on a reasonable, articulable suspicion of criminal
activity on his part, he was seized in violation of his Fourth
Amendment rights. The Commonwealth contends the encounter was
consensual and that during this consensual encounter, the officer
developed probable cause to arrest Dickerson and probable cause
to search his vehicle. We agree with the Commonwealth and affirm
the trial court's ruling on the suppression motion.
When reviewing on appeal a trial court's ruling denying a
motion to suppress evidence, we consider the evidence and all
reasonable inferences which may be drawn from the evidence in the
light most favorable to the Commonwealth. Greene v.
Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994).
The burden on appeal to show "that the denial of [the] motion to
suppress constitute[d] reversible error" rests with the
defendant. Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437
S.E.2d 232, 233 (1993).
We review determinations of reasonable suspicion and
probable cause de novo on appeal. Ornelas v. United States, 517
U.S. 690, 699 (1996); McGee v. Commonwealth, 25 Va. App. 193,
197, 487 S.E.2d 259, 261 (1997). "Similarly, the question
whether a person has been seized in violation of the Fourth
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Amendment is reviewed de novo on appeal." Reittinger v.
Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000).
Although we apply de novo our own legal analysis of whether a
seizure occurred, we are "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." McGee, 25 Va. App. at 198, 487 S.E.2d at 261.
The record shows that Deputy Parker lawfully stopped
Dickerson for a traffic violation. Dickerson concedes the
initial stop was lawful. Whren v. United States, 517 U.S. 806,
810 (1996) (police may stop a vehicle where they have probable
cause to believe a traffic violation has occurred). However,
when an officer makes a lawful traffic stop, the scope of the
temporary detention may not exceed the purpose of the stop.
Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion)
("The scope of the detention must be carefully tailored to its
underlying justification."). Therefore, absent reasonable,
articulable suspicion, Deputy Parker could not lawfully extend
the initial stop and continue to detain Dickerson in order to ask
him questions concerning his possession and use of drugs. The
Commonwealth does not contend that Deputy Parker had reasonable
suspicion to detain Dickerson when he began to question him
concerning his use and possession of drugs; rather, it contends
Deputy Parker and Dickerson were engaged in a consensual
encounter at the time the questioning occurred.
Dickerson argues that once the traffic stop was completed,
Parker's questions regarding the presence of drugs in the car
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constituted an illegal seizure. We disagree and find that the
encounter was consensual at the time of the questioning and that
probable cause to arrest Dickerson and search his vehicle
developed as a result of the consensual encounter that followed
the initial traffic stop.
A voluntary police-citizen encounter becomes a seizure for
Fourth Amendment purposes "[o]nly when the officer, by means of
physical force or show of authority, has in some way restrained
the liberty of a citizen." Florida v. Bostick, 501 U.S. 429, 434
(1991). "So long as a reasonable person would feel free 'to
disregard the police and go about his business,' the encounter is
consensual, and no reasonable suspicion is required." Id.
(citation omitted). "[E]ven when officers have no basis for
suspecting a particular individual, they may generally ask
questions of that individual . . . and request consent to
search . . . as long as the police do not convey a message that
compliance with their requests is required." Id. at 434-35, 437.
In determining whether the encounter was consensual, we must
"consider all the circumstances surrounding the encounter to
determine whether the police conduct would have communicated to a
reasonable person that the person was not free to decline the
officers' requests or otherwise terminate the encounter." Id. at
439.
In determining whether a reasonable person would feel he or
she was not free to terminate an encounter with the police,
several jurisdictions, including Virginia, have utilized a set of
factors first articulated by Justice Stewart in his opinion in
United States v. Mendenhall, 446 U.S. 544 (1980) (opinion of
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Stewart, J.). See United States v. Galvan-Muro, 141 F.3d 904,
906 (8th Cir. 1998); United States v. Turner, 928 F.2d 956, 959
(10th Cir. 1991); Parker v. Commonwealth, 255 Va. 96, 101-02, 496
S.E.2d 47, 50 (1998); Baldwin v. Commonwealth, 243 Va. 191, 196,
413 S.E.2d 647, 648 (1992). Those factors include:
"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 (opinion of Stewart, J.).
The record shows that after the lawful traffic stop was
completed, Dickerson was told he was free to leave before any of
the challenged questioning ensued. Mere questioning alone, after
Dickerson was told he was free to go, is not sufficient to
constitute restraint for Fourth Amendment purposes. See United
States v. Sullivan, 138 F.3d 126 (4th Cir. 1997); United States
v. Lattimore, 87 F.3d 647 (4th Cir. 1996); United States v.
Thompson, 106 F.3d 794 (7th Cir. 1997); Galvan-Muro, 141 F.3d
904; United States v. White, 81 F.3d 775 (8th Cir. 1996); United
States v. Anderson, 114 F.3d 1059 (10th Cir. 1997); United States
v. Elliott, 107 F.3d 810 (10th Cir. 1997); United States v.
Hernandez, 93 F.3d 1493 (10th Cir. 1996); United States v.
Sandoval, 29 F.3d 537 (10th Cir. 1994); United States v.
McKneely, 6 F.3d 1447 (10th Cir. 1993); Turner, 928 F.2d 956;
United States v. Werking, 915 F.2d 1404 (10th Cir. 1990).
In this case, after Deputy Parker told Dickerson he was free
to leave, Dickerson returned to his car and began to get back
into the vehicle, indicating that Dickerson believed he was free
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to leave at that point. See Hernandez, 93 F.3d at 1499. Nothing
occurred after that point that would make a reasonable person
feel he or she was not still free to leave. Deputies Parker and
Morrison did not by means of force or show of authority restrain
Dickerson or indicate that he was required to comply with their
requests. While two officers were on the scene, only one was
interacting with Dickerson. See White, 81 F.3d at 779 (other
officers "were little more than passive observers prior to
commencement of the search"). Neither officer acted in a
threatening manner either by their language or the tone of voice
used. See Galvan-Muro, 141 F.3d at 906 (exchange between officer
and defendant was "cooperative and conversational"); White, 81
F.3d at 779 ("tone of the entire exchange was cooperative").
Neither officer physically touched Dickerson, and neither
displayed a weapon. Galvan-Muro, 141 F.3d at 906; White, 81 F.3d
at 779. 1 Finally, the evidence establishes that neither officer
1
Contrary to Dickerson's assertions on appeal, the mere
presence of a holstered weapon is not sufficient to convert a
consensual encounter into an illegal seizure. See Bostick, 501
U.S. at 432, 434, 437 (in holding that "a seizure does not occur
simply because a police officer approaches an individual and
asks a few questions," the Court noted that although the officer
in that case was carrying a holstered weapon, the officer did
not point the gun at the defendant or use the gun in a
threatening manner).
In addition, Dickerson's reliance on Parker, 255 Va. 96,
496 S.E.2d 47, for the proposition that the fact that an officer
is wearing a uniform and a badge, alone, constitutes a show of
authority, is misplaced. In Parker, the Virginia Supreme Court,
in finding the defendant had been seized, specifically relied on
the fact that after the defendant attempted to evade the police,
the officer "drove his police cruiser forty feet off of the
street and onto private property and stopped his police cruiser
at the location where the defendant was standing," and not on
the fact that the officer, like most patrol officers, was
wearing a badge and a uniform. Id. at 103, 496 S.E.2d at 51.
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blocked nor restricted Dickerson's movement in any way.
Dickerson was told he was
free to leave and was allowed to return to his vehicle, which had
the keys in the ignition. Therefore, because the police neither
utilized force nor made a show of authority which would have led
a reasonable person to believe he or she was not free
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to go, the encounter between Dickerson and the police was
consensual.
This case may be distinguished from Reittinger, 260 Va. 232,
532 S.E.2d 25, where the Virginia Supreme Court found that the
defendant had been unlawfully seized following a traffic stop.
In Reittinger, the police pulled the defendant over for operating
a vehicle with only one headlight. One officer approached the
vehicle and stood next to the driver's window, and a second
officer stood next to the front passenger side window. The first
officer asked the defendant for his license and registration.
After the officer gave the defendant a verbal warning for the
headlight offense, the officer told the defendant he was "free to
go." Immediately thereafter, without moving from the driver's
side window, the officer asked the defendant if he had any
illegal drugs or weapons in the car. The defendant said, "no,"
and the officer asked permission to search the vehicle. The
defendant did not respond but, rather, consulted with the
passengers in the vehicle. The officer asked to search the
vehicle three times without response from the defendant before
the defendant exited the vehicle. When he exited the vehicle,
the officer saw what looked like a weapon in the defendant's
pocket and ordered him to remove it.
The Supreme Court held that the defendant had been
unlawfully seized. Id. at 237, 532 S.E.2d at 28. The Court
found that, "[a]lthough Deputy Bolen had told Reittinger that he
was free to go, we think that the events that transpired
immediately thereafter would suggest to a reasonable person that
just the opposite was the case." Id. In deciding Reittinger
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remained under the restraint of the traffic stop, the Court
focused on the fact that the officers still flanked the vehicle
even after the defendant was told he was free to go and on the
repeated requests by the officer to search the vehicle. Id. at
236-37, 532 S.E.2d at 27; see also Hernandez, 93 F.3d at 1499
("'[A]ccusatory, persistent, and intrusive' questioning may turn
an otherwise voluntary encounter into a coercive one if it
conveys the message that compliance is required."). In the case
before us, there was a clear and definite break in the chain of
events, separating the stop from the subsequent consensual
encounter. Dickerson was told he was free to go and was allowed
to return to his vehicle. Deputy Parker's inquiry began as
Dickerson was entering his car, and the inquiry, unlike that in
Reittinger, did not, by its nature, implicate restraint or the
need to restrain. Parker's questions were limited to gathering
information that Dickerson was free to decline giving.
Furthermore, Parker was not persistent in seeking information
from Dickerson in the face of either resistance on his part or
under circumstances where his willingness to cooperate was not
made manifest. Rather, Dickerson responded to Parker's
questions regarding his use and possession of marijuana without
further prodding by the officers.
In the course of the consensual encounter, Parker obtained
information that gave rise to probable cause to arrest Dickerson
for a criminal offense and to search his car incident to that
arrest. In response to questions asked by Parker, Dickerson
admitted he smoked marijuana and had some "roaches" in the
ashtray of the car. This evidence constitutes probable cause for
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arrest. Taylor v. Commonwealth, 222 Va. 816, 821, 284 S.E.2d
833, 836 (1981) ("[P]robable cause exists when the facts and
circumstances within the officer's knowledge, and of which he has
reasonably trustworthy information, alone are sufficient to
warrant a person of reasonable caution to believe that an offense
has been or is being committed."); see also Parker, 255 Va. at
105, 496 S.E.2d at 53; Buck v. Commonwealth, 20 Va. App. 298,
304, 456 S.E.2d 534, 536-37 (1995) ("If an officer has reason to
believe that a person is committing a felony in his presence by
possessing contraband or a controlled substance, the officer has
probable cause to arrest the individual without a warrant.").
The search of the vehicle conducted incident to that arrest was
proper. New York v. Belton, 453 U.S. 454, 460 (1981) (police may
search passenger compartment of vehicle when they have made
lawful arrest of occupant); Rawlings v. Kentucky, 448 U.S. 98,
111 (1980) (search may proceed formal arrest so long as police
have probable cause to arrest at time of search). Furthermore,
although Deputy Parker did not immediately arrest Dickerson and
continued to ask for Dickerson's consent to search the vehicle,
the officer's subjective beliefs are irrelevant for purposes of
determining whether the officer actually had probable cause to
arrest. Poindexter v. Commonwealth, 16 Va. App. 730, 734, 432
S.E.2d 527, 529 (1993) (where officer has probable cause to
arrest suspect prior to conducting search, "officer's subjective
motivations are not dispositive"); Limonja v. Commonwealth, 8 Va.
App. 532, 537-38, 383 S.E.2d 476, 480 (1989) ("Police actions are
to be tested 'under a standard of objective reasonableness
without regard to the underlying intent or motivation of the
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officers involved.'" (quoting Scott v. United States, 436 U.S.
128, 138 (1978))).
Finally, the search of the vehicle, including the trunk, was
proper under the automobile exception to the warrant requirement.
Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (search of
vehicle proper when there is probable cause to believe it
contains contraband). Once the officers found drugs in the
passenger compartment, they had probable cause to extend their
search to the trunk of Dickerson's vehicle.
Because we find the encounter in this case was consensual
and that the officers had probable cause to arrest Dickerson and
to search his vehicle, we affirm the trial court's ruling denying
Dickerson's motion to suppress.
Affirmed.
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