Piggott v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Annunziata
Argued at Richmond, Virginia

VERNON GREGORY PIGGOTT, S/K/A
VERNON PIGGOT
OPINION BY
v. Record No. 2250-99-2 JUDGE JERE M. H. WILLIS, JR.
DECEMBER 5, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
Robert G. O'Hara, Jr., Judge

Anthony N. Sylvester (Anthony N. Sylvester,
P.C., on brief), for appellant.

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

Vernon Gregory Piggott (appellant) was convicted in a bench

trial of possession of cocaine in violation of Code § 18.2-250.

On appeal, he argues the trial court erred in denying his motion

to suppress the evidence obtained in violation of his Fourth

Amendment rights. We reverse Piggott's conviction and remand

the case to the trial court for further proceedings, if the

Commonwealth be so advised.

I. BACKGROUND

On appeal from a trial court's ruling on a suppression

motion, we view the evidence in the light most favorable to the

party prevailing below, in this case the Commonwealth. See

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). However, "'[u]ltimate questions of reasonable

suspicion and probable cause . . . are reviewed de novo on

appeal.'" McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487

S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United

States, 517 U.S. 690, 691 (1996)). Similarly, we review de novo

whether a seizure occurred. See id. at 198, 487 S.E.2d at 261.

On November 19, 1998, Piggott was a passenger in a car

driven by Roy Dean Wright. Detective Michael S. Langford

stopped the car because it was proceeding the wrong way on a

one-way street. Detective Langford requested Wright's driver's

license, ran it through his computer, and released Wright with a

verbal warning.

Detective Langford obtained from Wright permission to

search his car and person. Detective Langford found no weapon

or contraband on Wright's person. He then identified himself to

Piggott and asked Piggott to exit the car. Detective Langford's

search of the car produced no weapon or contraband. Upon

completion of the search of the car, Detective Langford asked

Piggott for identification, which Piggott produced. 1

Detective Langford ran a warrant check on Piggott, which he

testified took a "few" minutes. After discovering that Piggott

1
The record does not disclose the precise nature of
Piggott's identification. However, in a question, counsel
referred to it as "his license." Detective Langford used the
identification to access a central records bank. From this, we
conclude that the identification was in some official form.

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had two outstanding warrants, Detective Langford arrested him.

On the way to jail, Piggott admitted he had cocaine concealed in

his shoe. At the jail, Detective Langford searched Piggott and

found three chunks of cocaine in a plastic bag inside his shoe.

He charged Piggott with possession of cocaine.

Prior to trial, Piggott moved to suppress the cocaine found

on his person. He argued that discovery of the cocaine derived

from an unlawful seizure of his person. The trial court denied

the motion, ruling that the encounter between Piggott and

Detective Langford was consensual. In a bench trial, the trial

court convicted Piggott of possessing cocaine.

II. THE SEIZURE

"Fourth Amendment jurisprudence recognizes three categories

of police-citizen confrontations: (1) consensual encounters,

(2) brief, minimally intrusive investigatory detentions, based

upon specific, articulable facts, commonly referred to as Terry

stops, and (3) highly intrusive arrests and searches founded on

probable cause." Wechsler v. Commonwealth, 20 Va. App. 162,

169, 455 S.E.2d 744, 747 (1995) (citation omitted).

"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) (citations omitted). "As

long as the person to whom questions are put remains free to

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disregard the questions and walk away, there has been no

intrusion upon that person's liberty or privacy as would under

the Constitution require some particularized and objective

justification." United States v. Mendenhall, 446 U.S. 544, 554

(1979).

An encounter is not consensual "if, in view of all of the

circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave." Id. The

"principle embodied by the phrase 'free to leave' means the

ability to ignore the police and to walk away from them," to

"'feel free to decline the officers' requests or otherwise

terminate the encounter.'" United States v. Wilson, 953 F.2d

116, 122 (4th Cir. 1991) (quoting Florida v. Bostick, 501 U.S.

429, 436 (1991)). "Fourth Amendment scrutiny is triggered,

however, the moment an encounter 'loses its consensual nature.'"

Id. (quoting Bostick, 501 U.S. at 434).

Detective Langford's request for Piggott's identification

initiated a consensual encounter and implicated no Fourth

Amendment interest. However, the consensual aspect of the

encounter ceased when Detective Langford retained Piggott's

identification while he ran a warrant check. A reasonable

person in Piggott's circumstances would not have believed that

he could terminate the encounter and walk away. By retaining

Piggott's identification, Detective Langford implicitly

commanded Piggott to stay. See Hodnett v. Commonwealth, 32 Va.

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App. 684, 691-92, 530 S.E.2d 433, 436 (2000). Thus, for Fourth

Amendment purposes, Piggott was then "seized" by Detective

Langford. See Terry v. Ohio, 392 U.S. 1, 16 (1968). "In order

to justify such a seizure, an officer must have a 'reasonable

and articulable suspicion of criminal activity on the part of

the defendant.'" Hatcher v. Commonwealth, 14 Va. App. 487, 490,

419 S.E.2d 256, 258 (1992) (quoting Commonwealth v. Holloway, 9

Va. App. 11, 15, 384 S.E.2d 99, 101 (1989)).

The circumstances in this case gave Detective Langford no

objectively reasonable basis for suspecting that Piggott was

engaged in criminal activity. Detective Langford had no

information to such effect, nor had he observed any criminal

behavior. Piggott cooperated and willingly gave his correct

identification.

Because Detective Langford's encounter with Piggott ceased

to be consensual, and because the circumstances provided no

lawful basis for further detention, Piggott was seized in

violation of his Fourth Amendment rights. The cocaine was found

on his person due to that unlawful seizure and should have been

suppressed. Accordingly, we reverse the judgment of the trial

court, reverse Piggott's conviction, and remand the case to the

trial court for further proceedings if the Commonwealth be so

advised.

Reversed and remanded.

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