Commonwealth of Virginia v. Robert Lee Taylor ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Baker
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1298-98-1 JUDGE NELSON T. OVERTON
OCTOBER 6, 1998
ROBERT LEE TAYLOR
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Karen M. Vannan (Buxton, Lasris & Vannan, on
brief), for appellee.
The Commonwealth of Virginia appeals the suppression of a
cocaine smoking device found in the pocket of Robert Lee Taylor
(defendant). The Commonwealth contends the trial court
erroneously classified the police-citizen encounter which led to
the defendant's search and arrest as a Terry stop. Because we
agree and hold that the encounter was consensual, we reverse.
The parties are fully conversant with the facts of the case
and because this memorandum opinion has no precedental value, no
recitation of the facts is necessary.
On an 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 defendant. See
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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, whether a seizure
occurred at all is a question for this Court to review de novo.
See id. at 198, 487 S.E.2d at 261.
In Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455
S.E.2d 744, 747 (1995), this Court summarized the three types of
police-citizen encounters:
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.
A Terry stop occurs "only if, in view of all of 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). "As long as the person to whom questions
are put remains free to disregard the questions and walk away,
there has been no intrusion upon that person's liberty or privacy
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as would under the Constitution require some particularized and
objective justification." Id.The trial court ruled that when Police Officer Mattis
approached the defendant and asked him questions, defendant was
seized. However, Officer Mattis's actions did not create a
seizure but were only an invitation to talk. "[L]aw enforcement
officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public
place, by asking him if he is willing to answer some questions,
[or] by putting questions to him if the person is willing to
listen . . . ." Florida v. Royer, 460 U.S. 491, 497 (1983).
Officer Mattis asked the defendant whether he had drugs,
weapons or illegal contraband. Mattis did not touch him or draw
his weapon. Mattis did not tell the defendant to remain where he
was. Defendant can point to no act which, either implicitly or
expressly, restrained his liberty. In these circumstances, the
defendant was not seized for purposes of the Fourth Amendment.
Because the defendant was not seized, and the defendant
consented to the subsequent search of his person, the defendant's
crack pipe should not have been excluded. The trial court's
ruling on the motion to suppress is reversed.
Reversed.
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