Kelly Francis Ibanez v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia
KELLY FRANCIS IBANEZ
MEMORANDUM OPINION * BY
v. Record No. 1200-02-1 JUDGE WALTER S. FELTON, JR.
APRIL 22, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
William P. Robinson, Jr. (Robinson,
Neeley & Anderson, on brief), for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Kelly Ibanez was convicted in a bench trial of (1) possession
of more than five pounds of marijuana with the intent to
distribute, in violation of Code § 18.2-248.1, and (2)
transportation of more than five pounds of marijuana into the
Commonwealth, in violation of Code § 18.2-248.01. On appeal,
Ibanez contends that the trial court erred in denying her motion
to suppress evidence because law enforcement officers lacked
probable cause to detain and arrest her. For the following
reasons, we affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
On June 24, 1997, Kelly Ibanez and Kim Overton flew from
Norfolk International Airport to Los Angeles where they met some
of Ibanez's relatives. On June 25, Virginia State Police
Trooper Bennell Powers, a member of the Virginia State Police
Drug Interdiction Team, was called to Norfolk International
Airport. The drug interdiction team received information from
Los Angeles that two black females, traveling under the names
B. Johnson and K. Overton, checked several bags, including two
large black bags that were suspected of containing controlled
substances. Their destination was Norfolk. After a delay for
bad weather, the women arrived in Norfolk at approximately
2:00 a.m. on June 26.
Trooper Powers observed two black women deplane together
and followed them to the baggage claim area. As they walked to
the baggage claim area, Virginia State Police Trooper David
Washington observed them talking, but was unable to hear their
conversation. Overton picked up the luggage first. At the
luggage carousel she looked over her shoulder to Ibanez, and
Ibanez nodded to her. Overton then picked two large black
suitcase bags off the carousel. Ibanez then picked up two
smaller bags, and the women proceeded to walk together toward
the exit.
At that point, the state troopers approached the women.
Trooper Powers approached Ibanez and asked her if he could speak
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to her. He showed her his badge and identified himself.
Trooper Powers asked her if she just flew in on a flight and
where the flight came from. She stated that her flight arrived
from California. He then asked to see her airline ticket. The
airline ticket had the name of B. Johnson on it. It also
indicated a departure date of June 24 and a return date of June
25. Trooper Powers returned the ticket to Ibanez and asked her
how long she was in California. She responded that she was in
California for a couple of days visiting relatives.
At that time Trooper Powers told Ibanez that he was a
narcotics agent and asked for her consent to search her luggage.
She gave her consent to search all her luggage. Another
officer, Trooper Hoggard, then proceeded to check Ibanez's
luggage. No contraband or controlled substances were found in
her luggage. Ibanez attempted to leave even though she was not
informed that she could leave. Trooper Powers again stopped
her.
At the same time Trooper Powers initially spoke to Ibanez,
other state troopers were talking to Overton approximately ten
to fifteen feet away. A drug-sniffing dog was brought over to
the luggage and alerted on the two large suitcase bags that were
in Overton's possession. The luggage was searched. The first
bag contained fifty-four pounds of marijuana, and the second bag
contained fifty-two pounds, three ounces of marijuana. Trooper
Powers informed Ibanez of the discovery and arrested her.
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Prior to trial, Ibanez filed a motion to suppress evidence
based on her claims of illegal arrest. The trial court denied
her motion. Ibanez was convicted of possession of more than
five pounds of marijuana with the intent to distribute and
transporting more than five pounds of marijuana into the
Commonwealth.
II. ANALYSIS
Ibanez contends that the trial court erred in denying her
motion to suppress evidence because law enforcement officers
lacked sufficient probable cause to detain and arrest her.
A. STANDARD OF REVIEW
"In reviewing a trial court's denial of a motion to
suppress, '[t]he burden is upon [the defendant] to show that
th[e] ruling, when the evidence is considered most favorably to
the Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d
729, 731 (1980)).
In considering a challenge under the Fourth
Amendment, questions of reasonable suspicion
and probable cause involve questions of both
law and fact and are reviewed de novo on
appeal. Ornelas v. United States, 517 U.S.
690, 699 (1996); Bass v. Commonwealth, 259
Va. 470, 475, 525 S.E.2d 921, 924 (2000).
Similarly, the question whether a person has
been seized in violation of the Fourth
Amendment is reviewed de novo on appeal.
See Schneckloth [v. Bustamonte], 412 U.S.
[218,] 226 [(1973)]; see also United States
v. Mendenhall, 446 U.S. 544, 551 n.5 (1980).
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An appellate court, however, "should take
care both to review findings of historical
fact only for clear error and to give due
weight to inferences drawn from those facts
by resident judges and local law enforcement
officers." Ornelas, 517 U.S. at 699.
Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27
(2000).
B. CONSENSUAL STOP
The initial stop of Ibanez by law enforcement officers was
a consensual encounter that did not require probable cause. A
law enforcement officer does not violate the Fourth Amendment
"merely by approaching an individual on the street, identifying
[himself], and asking the individual questions." Buck v.
Commonwealth, 20 Va. App. 298, 301-02, 456 S.E.2d 534, 535
(1995). A consensual encounter need not be predicated on
suspicion of criminal activity and remains consensual so long as
the encountered citizen voluntarily cooperates with police.
Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870
(1992) (citing United States v. Wilson, 953 F.2d 116, 121 (4th
Cir. 1991)).
Trooper Powers approached Ibanez, identified himself as a law
enforcement officer, and asked her if he could speak to her. She
agreed to speak to him, and Trooper Powers began asking her about
her trip. In addition, he asked her if he could search her
luggage and she consented. At the same time Trooper Powers was
speaking with Ibanez, other officers were speaking with Overton
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approximately ten to fifteen feet away. By agreeing to speak with
the officers when they were approached, the women consented to the
stop.
C. PROBABLE CAUSE
Prior to initiating the consensual stop, law enforcement
officers did not possess sufficient evidence to establish
probable cause to arrest Ibanez. Law enforcement officers had
obtained information from officials in Los Angeles regarding two
black women, traveling under the names B. Johnson and
K. Overton, suspecting them of transporting controlled
substances in two large black bags. Upon the arrival of the
flight, officers observed two black women deplane together and
followed them to the luggage claim. As they walked to the
luggage claim area, the women conversed. When they arrived at
the baggage claim area, Ibanez signaled with a nod for Overton
to pick up two large pieces of luggage that matched the
description provided by officials in Los Angeles.
Though initially not sufficient to establish probable
cause, officers established probable cause to arrest Ibanez with
the additional information obtained during the consensual
encounter. During the consensual encounter, Trooper Powers
learned when he inspected her airline ticket that Ibanez was
traveling under the name B. Johnson, corroborating information
obtained from officials in Los Angeles. When asked how long she
was in California, Ibanez responded, "a couple of days," even
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though her ticket showed one day. Finally, a drug dog alerted
on the two bags that Overton had removed from the baggage
carousel after receiving a nod from Ibanez.
Based on the totality of the information obtained from
officials in Los Angeles and the consensual encounter, there was
sufficient evidence to establish probable cause to detain and
arrest Ibanez. The trial court did not err in denying Ibanez's
motion to suppress the evidence.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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