Harold Kenneth Dickerson, III v. Commonwealth ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
HAROLD KENNETH DICKERSON, III
MEMORANDUM OPINION * BY
v. Record No. 1332-99-1 JUDGE ROBERT J. HUMPHREYS
JUNE 13, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
S. Bernard Goodwyn, Judge
James B. Melton for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Harold Kenneth Dickerson, III was convicted in a bench
trial of possession of cocaine and possession of marijuana. In
this appeal, we consider whether the trial court erred in
denying a motion to suppress evidence seized following an
investigatory detention and subsequent arrest of Dickerson.
Finding no error in the denial of the motion to suppress, we
affirm.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to the
disposition of the appeal.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
On August 14, 1998, Officers John Hildebrand and Michelle
Hunter of the Chesapeake Police Department were patrolling the
area of Maplewood Apartments. The officers observed Dickerson,
accompanied by a juvenile, walking on Maple Field Drive in the
apartment complex.
Maplewood Apartments, by letter, had granted to the
Chesapeake Police Department the authority to enter its property
to investigate criminal activity in the apartment complex,
specifically including drug activity and trespassing. The
apartment complex also posted "No Trespassing" signs throughout
the complex, including several on Maple Field Drive.
Both officers testified that they were community police
officers assigned to the area of Maplewood Apartments and were
familiar with the residents. They knew the juvenile was a
resident of a neighboring community, and they also knew that
Dickerson was not a resident of Maplewood Apartments because
they had previously given him a ride to his home in the City of
Portsmouth.
The officers approached Dickerson and his companion and
asked them if they were visiting anyone in the Maplewood
Apartments complex. Neither of them was able to provide the
officers with the name or address of a resident. Rather,
Dickerson responded by simply gesturing toward the rear of the
apartments, approximately one-eighth mile away.
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The officers then asked Dickerson and his juvenile
companion to get into their police car so that Dickerson and his
companion could direct the officers to the apartment they had
been visiting. The officers testified that they detained
Dickerson and his juvenile companion as trespassing suspects in
order to investigate further. The officers further testified
that if it turned out that Dickerson and his companion were able
to confirm that they had been visiting a resident, they would
have been free to go.
The officers never communicated their state of mind to
Dickerson or his companion as to their custody status.
Dickerson was not restrained or handcuffed. He testified that
he believed he was free to leave if he chose to do so.
Dickerson's juvenile companion entered the back seat of the
officers' police car. Dickerson then moved toward the car as if
he were going to enter it but then became "visibly shaken and
nervous" and waived his arms in the air and began to turn from
the car. Believing that Dickerson was about to run, Hunter
grabbed his arm and a violent struggle ensued. Dickerson was
eventually subdued by the officers and placed under arrest. In
a search of Dickerson incident to that arrest, the officers
recovered a plastic baggie containing marijuana and four plastic
baggies containing cocaine.
Dickerson testified that he told the officers that he was
visiting a friend named Jay and that while he did not give them
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a specific address, he told them how to find Jay's apartment.
Dickerson further testified that the officers asked him to
accompany them on foot to the apartment and as he and his
juvenile companion turned to walk towards the apartments, Hunter
grabbed him. Dickerson denied that he was trying to get away
and contended that he was just trying to get the officers off of
him.
II. ANALYSIS
When we review a trial court's denial of a suppression
motion, "[w]e review the evidence in a light most favorable to
. . . the prevailing party below, and we grant all reasonable
inferences fairly deducible from that evidence." Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
While we are bound to review de novo the ultimate questions of
reasonable suspicion and probable cause, we "review findings of
historical fact only for clear error 1 and . . . give due weight
to inferences drawn from those facts by resident judges and
local law enforcement officers." Ornelas v. United States, 517
U.S. 690, 699 (1996) (footnote added).
"Fourth Amendment jurisprudence recognizes three categories
of police-citizen confrontations: (1) consensual encounters,
(2) brief, minimally intrusive investigatory detentions, based
1
"In Virginia, questions of fact are binding on appeal
unless 'plainly wrong.'" McGee v. Commonwealth, 25 Va. App. 193,
198 n.1, 487 S.E.2d 259, 261 n.1 (1997) (en banc) (citations
omitted).
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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).
"[N]ot all personal intercourse between policemen and
citizens involves 'seizures' of persons. Only when the officer,
by means of physical force or show of authority, has in some way
restrained the liberty of a citizen may we conclude that a
'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968). 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 as would under the Constitution
require some particularized and objective justification." Id.We recognize that the trial court and the parties analyzed
the initial stop as a Terry stop. However, we find that the
officers' initial approach of and questions posed to Dickerson
and his companion regarding the identity of the resident that
Dickerson and his companion were visiting constituted a
consensual encounter that did not implicate the Fourth
Amendment. See Payne v. Commonwealth, 14 Va. App. 86, 88, 414
S.E.2d 869, 870 (1992) (questioning by police officers does not
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implicate Fourth Amendment as long as citizen voluntarily
cooperates). Only when the officers learned that Dickerson and
his companion could not specifically identify the resident they
were visiting, causing the officers to investigate further by
requesting that Dickerson and his companion enter the police
car, did the consensual encounter become an investigatory
detention which must have been supported by a reasonable
articulable suspicion of criminal activity.
"If a police officer has a reasonable, articulable
suspicion that a person is engaging in, or is about to engage
in, criminal activity, the officer may detain the suspect to
conduct a brief investigation without violating the person's
Fourth Amendment protection against unreasonable searches and
seizures." McGee v. Commonwealth, 25 Va. App. 193, 202, 487
S.E.2d 259, 263 (1997) (en banc). Reasonable suspicion is a
"'particularized and objective basis' for suspecting the person
stopped of criminal activity." Ornelas, 517 U.S. at 696(citation omitted).
We find that the officers' knowledge that Dickerson and his
juvenile companion, whom they knew, did not live on the
property, coupled with the inability of Dickerson and his
companion to specifically identify the person they were
allegedly visiting, provided the officers with a reasonable
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articulable suspicion that Dickerson and his companion were
possible trespassers, thereby warranting further investigation. 2
Therefore, we conclude, as did the trial court, that the
initial stop and investigative detention were constitutionally
permissible. We now must turn our attention to the issue of
whether the officers' request for Dickerson to accompany them in
their police car was unreasonable and exceeded the bounds of a
permissible Terry stop and whether the officers were justified
in physically preventing Dickerson's departure from the scene,
and in subsequently arresting and searching him.
"When 'evaluating whether an investigative detention is
unreasonable, common sense and ordinary human experience must
govern over rigid criteria.' The test is whether the police
methods were calculated to confirm or dispel the suspicion
quickly and with minimal intrusion upon the person detained."
Washington v. Commonwealth, 29 Va. App. 5, 15, 509 S.E.2d 512,
517 (1999) (en banc) (citation omitted).
Here, the evidence, taken in the light most favorable to
the Commonwealth, established that the officers possessed
reasonable suspicion to detain Dickerson long enough to verify
his guest status in the apartment complex and to release him
2
Code § 18.2-119 provides in pertinent part that "[i]f any
person without authority of law goes upon or remains upon the
lands, buildings or premises of another, or any portion or area
thereof, after having been forbidden to do so . . . [or] after
having been forbidden to do so by a sign or signs posted . . .
shall be guilty of a Class 1 misdemeanor." (Emphasis added.)
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once that had been done. When Dickerson was unable to identify
the name or address of the person he was allegedly visiting, the
method employed by the officers to locate that person was
calculated to confirm or dispel their suspicions quickly and
with minimal intrusion upon Dickerson. Thus, the request by the
officers for Dickerson to take them to the apartment less than
one-eighth of a mile away was "neither unreasonable nor
conducted under circumstances that constituted the functional
equivalent of an arrest." Thomas v. Commonwealth, 16 Va. App.
851, 858, 434 S.E.2d 319, 323 (1993), aff'd on reh'g en banc, 18
Va. App. 454, 444 S.E.2d 275 (1994).
Furthermore, Dickerson's conduct of becoming visibly
nervous as he was about to enter the police car, attempting to
run from the officers instead of entering the police car and
violently struggling with them, coupled with the fact that he
had already been unable to specifically identify the person he
was allegedly visiting, provided the officers with probable
cause to seize and arrest him for trespassing. See James v.
Commonwealth, 8 Va. App. 98, 101-02, 379 S.E.2d 378, 380 (1989)
(probable cause for arrest shown when apartment complex posted
with "No Trespassing" signs, defendant was acting in suspicious
manner, and when officer approached to inquire further, he
fled).
"An arresting officer may, without a warrant, search a
person validly arrested." Michigan v. DeFillippo, 443 U.S. 31,
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35 (1979). The officers discovered the challenged evidence
during the search of appellant's person incident to arrest.
Therefore, we find that the search of appellant and the seizure
of appellant's contraband were reasonable under the meaning of
the Fourth Amendment. See Jordan v. Commonwealth, 207 Va. 591,
596-97, 151 S.E.2d 390, 394-95 (1966) (holding that a search
incident to an arrest for trespassing was constitutional).
Accordingly, we agree with the trial court that the
officers acted reasonably under the totality of the
circumstances, and we find no error in the denial of the motion
to suppress the evidence.
Affirmed.
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