Leon Junius McDaniels, Jr, etc. v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Elder and Senior Judge Cole
Argued at Richmond, Virginia
LEON JUNIUS McDANIELS, JR.,
S/K/A LEON J. McDANIEL
v. Record No. 0413-94-2 MEMORANDUM OPINION *
BY MARVIN F. COLE
COMMONWEALTH OF VIRGINIA AUGUST 29, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Maureen L. White, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Leon Junius McDaniels, Jr. appeals his conviction for
possessing cocaine with the intent to distribute. He contends
that the trial court erred in denying his motion to suppress the
cocaine. Finding no error, we affirm.
In considering a trial court's ruling on a suppression
motion, we view the evidence in the "light most favorable to
. . . the prevailing party below," the Commonwealth in this
instance, and the decision of the trial judge will be disturbed
only if plainly wrong. Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991). To prevail on appeal,
McDaniels must "show . . . that the denial of [his] motion to
suppress constitute[d] reversible error." Motley v.
Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1993).
The Commonwealth's evidence showed that Officer Samuels and
Trooper Clark were patrolling in the City of Richmond in an
unmarked vehicle on November 5, 1993. At about 11:30 p.m.,
Samuels and Clark approached a group of people at a street
corner. Other police cars followed. McDaniels was among the
group. Samuels recognized McDaniels. McDaniels looked in the
direction of the police car, then turned and walked toward a
nearby residence. Samuels and Clark left the police car and
followed McDaniels to the front of the residence. McDaniels
stopped on the porch outside of the residence, and Samuels asked
McDaniels his name and where he lived. As the two conversed,
McDaniels "kept placing his hand in his left front pocket . . .
like he was grabbing something from his pocket." Samuels asked
McDaniels three times if Samuels could search McDaniels,
including "his pocket." McDaniels agreed all three times. When
Samuels reached for the pocket, McDaniels grabbed Samuels' hand
and said that he would remove anything out of the pocket.
McDaniels removed money and a clear plastic baggie from the
pocket. Samuels grabbed the baggie, and McDaniels hit Samuels in
the eye. McDaniels unsuccessfully tried to flee.
The baggie that Samuels grabbed contained cocaine. After
McDaniels' arrest, Samuels recovered two other bags of cocaine
from another of McDaniels' pockets, two packets of marijuana, a
"large plastic bag with six more baggies of off-white substance,"
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two pagers, and $115.
McDaniels testified that he tried to enter the residence,
but Clark blocked his way. He also testified that Samuels
"grabbed hold of my pocket," and that he consented to the search
because "I was kind of scared because of the way they came up to
me."
In denying the motion to suppress, the trial judge made the
following factual findings:
I find for a fact it was at the most three
police cars, at the most eight policemen came
to third and somewhere, I forget the same
[sic] of the street, I'm very familiar with
it. They got out. The defendant started
walking towards the house and stopped.
Apparently, curiosity, I don't know, he
stopped. And the officer went up to him and
was talking to him and he had put his hand in
his pocket. He told him to take it out. He
wanted some identification at that time and
asked could he search him. He said yes. He
asked him three times because he wanted to
make sure he knew it wasn't a pat down, it
was a search. And, the defendant readily
consented. I find no threats or forms of
violence or any statements that would
intimidate whatsoever. And, then he said the
officer grabbed him by the hand and he said I
will get out of my pocket what you want.
Then the cocaine comes out after the money.
It was in clear open daylight or nighttime
light. And it was stuck, as he said, to the
money, down in the money. When he saw it I
think it's his duty to arrest him. Those are
the findings of fact . . . .
The trial judge believed the Commonwealth's evidence, and
rejected McDaniels' version of the encounter. "The weight which
should be given to evidence and whether the testimony of a
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witness is credible are questions which the fact finder must
decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986). We cannot say that the testimony of
Samuels and Clark was inherently incredible. Given that
testimony, and viewing the evidence in the light most favorable
to the Commonwealth, we cannot say that the trial judge erred in
denying the motion to suppress. That testimony established that
the encounter between McDaniels and the officers was consensual,
and did not implicate the Fourth Amendment. See Iglesias v.
Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988) (en
banc). Furthermore, that testimony showed that McDaniels
consented to the search of his person, then voluntarily removed
cocaine from his pocket. At that point, the officers had
probable cause to arrest McDaniels.
Affirmed.
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Elder, J., dissenting.
I respectfully dissent and would hold that the trial court
erred in not suppressing the cocaine obtained from McDaniels. I
believe McDaniels was unlawfully seized, and any consent given to
the officers was unlawfully obtained.
First, contrary to the majority opinion, I believe that
McDaniels was "seized" for purposes of the Fourth Amendment. A
person is seized when "his freedom of movement is restrained by
means of physical force or show of authority . . . ," Grinton v.
Commonwealth, 14 Va. App. 846, 849, 419 S.E.2d 860, 862 (1992)
(citing I.N.S. v. Delgado, 446 U.S. 210, 216 (1984)), or when the
circumstances "amount to a show of authority such that 'a
reasonable person would have believed that he was not free to
leave.'" Moss v. Commonwealth, 7 Va. App. 305, 307, 373 S.E.2d
170, 171-72 (1988) (quoting Florida v. Royer, 460 U.S. 491, 502
(1983)). Three police vehicles and eight officers approached the
group with which McDaniels was standing. Officers Samuels and
Clark followed McDaniels to a residence and surrounded him on his
stoop, which was not meant to accommodate three persons. Officer
Clark's leg was extended with his foot pressed against the front
door of the residence, preventing McDaniels' entrance into the
house. These circumstances amounted to a show of force such that
"a reasonable person would have believed he was not free to
leave." United States v. Mendenhall, 446 U.S. 544, 544 (1980);
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see Satchell v. Commonwealth, 20 Va. App. ___, ___ S.E.2d ___
(1995) (en banc) (finding a seizure where one officer confronted
defendant on his front stoop with three other officers in the
near vicinity).
Furthermore, there is nothing in the record to show (nor did
the Commonwealth contend) that the officers had any reasonable,
articulable suspicion, based on objective facts, to believe that
McDaniels was engaging in criminal activity. See Moss, 7 Va.
App. at 308, 373 S.E.2d at 172. The illegality of the seizure
therefore tainted McDaniel's consent and was ineffective to
justify the search. Royer, 460 U.S. at 507-08; Deer v.
Commonwealth, 17 Va. App. 730, 736, 441 S.E.2d 33, 37 (1994).
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