Commonwealth v. Thomas Allen Stormer ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0427-02-1 JUDGE ROSEMARIE ANNUNZIATA
JULY 12, 2002
THOMAS ALLEN STORMER
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellant.
Suzanne G. Moushegian for appellee.
A grand jury indicted Thomas Allen Stormer for possession
of cocaine. Stormer filed a motion to suppress evidence of
crack cocaine found during a search of his person. The trial
court granted the motion, and the Commonwealth appealed to this
Court. For the reasons that follow, we reverse the decision of
the trial court and remand for further proceedings.
Background
On appeal of a motion to suppress, we view the evidence in
the light most favorable to the party prevailing below, in this
case, Stormer. Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991). On November 24, 2000, Detective
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Fox and his partner conducted surveillance of a trailer at
Trailer City in the City of Virginia Beach, in response to
numerous reports that narcotics were being sold out of that
trailer. They noticed a parked car near the trailer with the
engine running. A passenger was seated in the car but there was
no driver. Detective Fox then saw Stormer walk around the
trailer, step into the car, and drive away. Detective Fox
followed the car.
When the car voluntarily stopped, Fox parked his vehicle 50
feet behind it. Fox approached Stormer as he walked away from
the car and asked to speak with him. Stormer did not respond.
Fox asked him again if he could speak with him. As Stormer
turned toward him, Fox displayed his badge, told Stormer he was
a police officer and repeated his request to speak with him.
The defendant muttered something unintelligible and averted his
gaze from Fox. Fox inquired if he could ask a few questions,
but Stormer gave more unintelligible responses. Fox thought he
might be intoxicated because his speech was slurred.
Fox said, "You don’t have a valid license, do you?"
Stormer replied that he did not and explained that his license
was suspended for driving under the influence. Fox decided to
verify whether Stormer’s license was actually suspended, so he
asked Stormer to step to the front of the vehicle.
Fox then asked Stormer "may I see what’s in your pockets?"
Stormer put his hands in his pockets and pulled out a variety of
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items, including a plastic bag containing crack cocaine. When
Stormer would not give Fox the bag, Fox seized it from him and
placed him under arrest for possession of cocaine.
Analysis
The trial court ruled as follows:
[T]he approach and asking Mr. Stormer to
answer a few questions as he got out of the
car . . . - - I think that was fine. Then
when we get to the driver’s license
situation and he was told to step over to
the front of the police car, then I think
. . . he was detained.
. . . if, in fact, his driver’s license
had been suspended and if Detective Fox had
determined that and placed him under arrest
for that charge, he could have searched
incident to arrest all he wanted to. The
problem is that wasn’t done, so basically
you’ve got a detention for one reason and
then a situation involving what amounts to a
search which is not really incident to
anything at that particular point in time
other than the fact that there was this
situation that Detective Fox was trying to
follow up on.
Considering the totality of the
circumstances, . . . it is . . . not a
proper search and seizure. I’m going to
grant the motion to suppress.
The trial court did not address the Commonwealth’s
contention that Stormer voluntarily consented to the search of
his pockets.
The Commonwealth appeals the trial court’s decision to
suppress the bag of crack cocaine found in Stormer’s pockets.
The Commonwealth contends that the trial court erred as a matter
of law in concluding that the search was improper because it was
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not incident to arrest, without considering whether Stormer
consented to the search. We agree.
The Fourth Amendment provides, in pertinent part, that
"[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated." U.S. Const. amend. IV.
Subject to several well-established exceptions, warrantless
searches of any place or thing in which a person has a
reasonable expectation of privacy are unreasonable. See Mincey
v. Arizona, 437 U.S. 385, 390 (1978); Reittinger v.
Commonwealth, 260 Va. 232, 235, 532 S.E.2d 25, 27 (2000). On
appeal, the trial court's legal conclusion concerning when, or
whether, an illegal search occurred is reviewed de novo. Archer
v. Commonwealth, 26 Va. App. 1, 8, 492 S.E.2d 826, 830 (1997);
McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261
(1997)(en banc); see United States v. Mendenhall, 446 U.S. 544,
552, 555 (1980). However, "we are bound by the trial court's
findings of historical fact unless 'plainly wrong' or without
evidence to support them[,] and we give due weight to the
inferences drawn from those facts by resident judges and local
law enforcement officers." McGee, 25 Va. App. at 198, 487
S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690,
699 (1996)).
Searches made by the police pursuant to a valid consent do
not implicate the Fourth Amendment. See Schneckloth v.
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Bustamonte, 412 U.S. 218, 222 (1973); Iglesias v. Commonwealth,
7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988) (en banc). "The
Fourth Amendment test for a valid consent to search is that the
consent be voluntary, and '[v]oluntariness is a question of fact
to be determined from all the circumstances.'" Ohio v.
Robinette, 419 U.S. 33, 40 (1996) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 248-49 (1973)). "Both the presence of
consent to search and any related limitations are factual issues
for the trial court to resolve after consideration of the
attendant circumstances." Bynum v. Commonwealth, 23 Va. App.
412, 418, 477 S.E.2d 750, 753 (1996).
In this case, the trial court held that the stop was
proper; it found that the encounter began consensually and
became a valid detention when the officer asked Stormer to step
to the front of the vehicle to verify his driver's license. 1 It
held, however, that the search was improper because it was not
incident to arrest, or pursuant to a Terry stop. The trial
court did not, however, make a finding regarding whether Stormer
voluntarily consented to Officer Fox's request to search his
pockets. See United States v. Hurst, 228 F.3d 751, 757-58 (6th
Cir. 2000) (upholding denial of motion to suppress because
defendant consented to search during a proper Terry stop);
1
The Commonwealth did not appeal these rulings.
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United States v. Dupree, 202 F.3d 1046, 1049 (8th Cir. 2000)
(same); United States v. Leshuk, 65 F.3d 1105, 1110 (4th Cir.
1995) (affirming trial court’s refusal to suppress defendant’s
voluntary statements made during a proper Terry stop). Indeed,
the Fourth Circuit has noted "[o]fficers may temporarily detain
an individual under Terry for purposes of questioning the
individual or attempting to obtain his consent to a search when
reasonable suspicion exists." Leshuk, 65 F.3d at 1110. `
Because the trial court did not make a finding regarding
consent, we reverse the trial court’s decision and remand for
consideration of whether Stormer voluntarily consented to the
search of his pockets.
Reversed and remanded.
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