JOSHUA DARNELL PERRY V COMMONWEALTH ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia
JOSHUA DARNELL PERRY
MEMORANDUM OPINION * BY
v. Record No. 2466-00-2 JUDGE JAMES W. BENTON, JR.
JULY 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Emmet D. Alexander for appellant.
Leah A. Darron, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Joshua Darnell Perry appeals his conviction of possession of
cocaine in violation of Code § 18.2-250. The sole issue is
whether the trial judge erred by failing to grant Perry's motion
to suppress evidence obtained in the search of his clothing.
For the reasons that follow, we reverse the conviction.
I.
On appeal from a trial judge's denial of a motion to
suppress, "we are bound by the [judge's] findings of historical
fact unless 'plainly wrong' or without evidence to support
them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d
259, 261 (1997) (en banc). We "consider de novo[, however,]
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
whether those facts implicate the Fourth Amendment and, if so,
whether the officers unlawfully infringed upon an area protected
by the Fourth Amendment." Hughes v. Commonwealth, 31 Va. App.
447, 454, 524 S.E.2d 155, 159 (2000).
The evidence proved that on the afternoon of June 30, 1999
Chesterfield County Police Officer Grohowski was observing an
apartment complex for evidence of narcotics transactions when he
saw a vehicle enter the complex and later leave. Officer
Grohowski and Officer Collins followed the vehicle in an unmarked
police vehicle. After the vehicle entered Chesterfield County, a
uniformed officer in a marked police car stopped the vehicle for a
speeding investigation. The uniformed officer asked Perry, the
driver, for his driver's license and registration. When the
uniformed officer returned to his car to verify Perry's documents
and to check for outstanding warrants, Officer Grohowski asked
Perry to exit the vehicle. Officer Grohowski then told Perry he
had seen Perry in the apartment complex and asked if he had any
weapons or drugs. Perry gave Officer Grohowski a knife he had.
Officer Grohowski testified that the uniformed officer
determined at some point that Perry's documents were valid and
that he would not cite Perry for a traffic violation. After the
uniformed officer had been gone "three or four minutes," he gave
Officer Grohowski Perry's license and registration. Although
Officer Grohowski initially testified that "[b]y the time [he]
had gotten the driver's license and registration . . . , [he]
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had already asked . . . Perry for consent to search his person,"
when defense counsel reminded Officer Grohowski of his testimony
at the preliminary hearing, Officer Grohowski responded, "it's
possible" he was holding Perry's license and registration when
he requested Perry's consent to search. He testified, "I was
either holding it or [had given] it back to [Perry]," and he
further testified on cross-examination, "I don't recall."
Officer Grohowski testified that after he learned Perry's
license and registration were valid and no warrants were
outstanding, he retained the driver's license and registration
because he had seen Perry at the apartments where drugs were
prevalent, and he continued to question Perry about whether he
had more weapons or any drugs on his person. When asked "how
long was it after you were back in possession of those documents
before you asked Mr. Perry for permission to search him,"
Officer Grohowski testified that it was "within a minute, 30
seconds to a minute." Officer Grohowski testified that Perry
consented to a search and that he discovered two pieces of
cocaine.
At the conclusion of the testimony on the motion to
suppress, the trial judge denied the motion. At the conclusion
of the evidence at trial, the judge denied Perry's motion to
strike the evidence. He found that Officer Grohowski's
involvement with Perry was contemporaneous with the uniformed
officer's detention on the traffic matter and that Officer
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Grohowski requested consent to search "contemporaneous" with the
uniformed officer returning the license and registration "to the
defendant through Officer Grohowski." The judge convicted Perry
of possession of cocaine.
II.
Under firmly established Fourth Amendment principles, 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." United
States v. Mendenhall, 446 U.S. 544, 554 (1980). When reviewing
an officer's request to search, the issue presented is whether
"a reasonable person would feel free 'to disregard the police
and go about his business.'" Florida v. Bostick, 501 U.S. 429,
434 (1991) (citation omitted). The Supreme Court of Virginia
recently reiterated that when a person "suffer[s] an illegal
seizure, his consent to the search of his [effects] [is] tainted
and ineffective to justify the search." Bolden v. Commonwealth,
263 Va. 465, 473, 561 S.E.2d 701, 705 (2002). Thus, on review,
we must determine from the totality of the circumstances whether
a reasonable person would have felt "free to leave" and "free to
decline the officers' requests or otherwise terminate the
encounter." Bostick, 501 U.S. at 436.
Perry initially was detained by the uniformed officer to
investigate a possible traffic infraction. While the uniformed
officer checked Perry's license and registration, Officer
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Grohowski questioned Perry about his suspicions concerning
narcotics. No evidence proved that when the uniformed officer
gave Perry's license and registration to Officer Grohowski any
of the three officers communicated to Perry that no traffic
citation would be issued. Although Officer Grohowski could not
recall whether he was holding Perry's license and registration
or had given the documents to Perry before he requested consent
to search, he later specifically testified that he was holding
the documents for "30 seconds to a minute" before he requested
consent to search. When Officer Grohowski continued questioning
Perry after learning that the uniformed officer did not intend
to issue a citation, Officer Grohowski effected a separate
detention for which he lacked reasonable articulable suspicion.
A reasonable person under these circumstances would have
believed that the officers' investigation had not ceased and
that he was not free to leave while the officers retained his
driver's license and registration.
We recognized in Richmond v. Commonwealth, 22 Va. App. 257,
261, 468 S.E.2d 708, 708 (1996), that, "as a practical matter,
if appellant left the scene in his vehicle while [the officer]
had his driver's license, appellant would have violated Code
§ 46.2-104." Unlike in Commonwealth v. Rice, 28 Va. App. 374,
378, 504 S.E.2d 877, 879 (1998), where "the lawful detention
. . . continued . . . [as] the officer requested permission to
search," the valid justification for detaining Perry had ended.
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When the uniformed officer gave Perry's driver's license and
registration to Officer Grohowski, the circumstances were not
such as would indicate to a reasonable person "that he was free
to disregard the [officers] and simply drive away." Reittinger
v. Commonwealth, 260 Va. 232, 237, 532 S.E.2d 25, 28 (2000). As
in Deer v. Commonwealth, 17 Va. App. 730, 735, 441 S.E.2d 33, 36
(1994), once the valid detention ended, the officers unlawfully
detained Perry and obtained consent that was not freely and
voluntarily given. See Bumper v. North Carolina, 391 U.S. 543,
548 (1968) (holding that consent must be "freely and voluntarily
given"); Davis v. Commonwealth, 37 Va. App. 421, 435, 559 S.E.2d
374, 380 (2002) (holding that police misconduct in unlawfully
detaining a driver was directly related to and invalidated the
consent).
For these reasons, we hold that Perry's consent was not
voluntarily given and that the trial judge, therefore, erred in
denying the motion to suppress. Accordingly, we reverse the
conviction and dismiss the indictment.
Reversed and dismissed.
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