Commonwealth v. Delphine Belfield ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Kelsey
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. Record No. 0243-07-1 CHIEF JUDGE WALTER S. FELTON, JR.
JUNE 26, 2007
DELPHINE BELFIELD
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Susan M. Harris, Assistant Attorney General (Robert F. McDonnell,
Attorney General, on brief), for appellant.
Sean H. Jung, Assistant Public Defender (Office of the Public
Defender, on brief), for appellee.
Pursuant to Code § 19.2-398, the Commonwealth appeals the pre-trial order of the Circuit
Court of the City of Hampton (trial court) granting Delphine Belfield’s (Belfield) motion to
suppress evidence seized in a search incident to her arrest on an outstanding warrant. The
Commonwealth contends that the trial court erred in ruling that Belfield was illegally seized when
Hampton Police Officer C. Kirk Shelton (Officer Shelton) requested her identification and
discovered the outstanding warrant for her arrest. For the reasons that follow, we reverse the trial
court’s ruling suppressing the evidence and remand for further proceedings consistent with this
opinion.
I. BACKGROUND
“Upon review of an evidentiary suppression ruling, we view the evidence in the light
most favorable to [Belfield] the party prevailing below, granting to it all reasonable inferences
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
fairly deducible therefrom.” Satchell v. Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253,
256 (1995) (en banc) (citing 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 to
make a warrantless search’ involve questions of both law and fact and 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, “[w]e analyze
a trial judge’s determination whether the Fourth Amendment was implicated by applying
de novo our own legal analysis of whether based on those facts a seizure occurred.” Id. at 198,
487 S.E.2d at 261.
Applying these principles, the evidence establishes that at approximately 1:40 a.m. on
April 29, 2006, Officer Shelton responded to a radio dispatch regarding an anonymous tip
reporting possible drug activity involving a four-door white Lincoln, bearing a specific Virginia
license tag. The tip indicated that the car was parked on the northeast side of the parking lot of a
Walgreen’s store open twenty-four hours a day. Shortly thereafter, Officer Shelton observed a
car matching the description and license tag number described in the dispatch parked in the
Walgreen’s parking lot in a space farthest away from the front door of the store. There were no
other cars parked near that car. All other cars in the parking lot were parked in the front of the
store near the business entrance. Officer Shelton pulled his patrol car in behind the described car
so that it was headed diagonally toward it, and parked twenty to thirty feet behind it. He
observed three people sitting in the car: Belfield sitting in the front passenger seat, and two men
sitting in the rear passenger seat. No one was in the driver’s seat.
He approached the car and asked Belfield “why they were [sitting] at that location.”
Belfield told him that “she was waiting for her brother and his girlfriend to come out of the
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store.”1 Officer Shelton related to Belfield that “[he] received a complaint of possible drug
activity” involving a car that matched the description and license plate number of the car in
which she was sitting. He asked “if she had any identification2 at which time she provided [him]
with an I.D. card.”
Officer Shelton ran Belfield’s identification information through the police records
system and discovered that there was a warrant on file for her arrest. He then placed her under
arrest pursuant to that warrant. During the search incident to her arrest, Officer Shelton
discovered cocaine.
Prior to trial, Belfield moved to suppress the cocaine discovered in the search incident to
her arrest. She argued that she was illegally seized when she was detained by Officer Shelton
and asked for her identification. She contended that the seizure was illegal as it was based solely
on an uncorroborated anonymous tip and that Officer Shelton lacked any reasonable articulable
suspicion to believe that she was engaged in criminal activity. She asserted that the cocaine
recovered in the search incident to her arrest was inadmissible as a fruit of the illegal seizure.
The trial court granted Belfield’s motion to suppress. It ruled that Officer Shelton seized
Belfield using his patrol car to block the driverless car in which she was sitting from leaving the
parking lot, and proceeding to question her about possible drug activity involving that car. The
trial court found that her seizure was based solely on an uncorroborated anonymous tip, lacking
sufficient reliability to establish reasonable articulable suspicion that she was engaged in
criminal activity. Accordingly, it concluded that Belfield was illegally seized when she was
1
The record on appeal is silent as to whether anyone returned to the car during the time
these events were taking place.
2
A backup officer arrived at the scene shortly after Officer Shelton initiated contact with
Belfield. The record indicates that the backup officer had not yet arrived when Officer Shelton
asked Belfield for identification.
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asked to produce her identification, rendering all the evidence recovered pursuant to the search
following her arrest inadmissible. This appeal by the Commonwealth followed.
II. ANALYSIS
The Commonwealth contends that the initial encounter between Officer Shelton and
Belfield, during which Belfield produced her identification, was consensual and that the
encounter “never lost its consensual nature until [Belfield] was arrested.” We agree.
“The Fourth Amendment protects persons from unreasonable searches and seizures [by
government officials].” Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003).
“Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of
persons.” Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.
16 (1968)). “A consensual encounter occurs when police officers approach persons in public
places ‘to ask them questions,’ provided ‘a reasonable person would understand that he or she
could refuse to cooperate.’” Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870
(1992) (quoting United States v. Wilson, 953 F.2d 116, 121 (4th Cir. 1991)). “Even when law
enforcement officers have no basis for suspecting a particular individual, they may . . . ask for
identification . . . provided they do not induce cooperation by coercive means.” Drayton v.
United States, 536 U.S. 194, 201 (2002).
“A [consensual] police-citizen encounter becomes a seizure for Fourth Amendment
purposes ‘only if, in view of all of the circumstances . . . a reasonable person would have
believed that he was not free to leave.’” Wechsler v. Commonwealth, 20 Va. App. 162, 170, 455
S.E.2d 744, 747 (1995) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). “So
long as a reasonable person would feel free ‘to disregard the police and go about his
business,’ . . . no reasonable suspicion is required.” Londono v. Commonwealth, 40 Va. App.
377, 398, 579 S.E.2d 641, 651 (2003) (quoting Bostick, 501 U.S. at 434).
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In determining whether a seizure has occurred, courts consider various factors including
the threatening presence of a number of police officers, the display
of weapons by officers, physical contact between an officer and a
citizen, an officer’s language or tone of voice compelling
compliance, the retention of documents requested by an officer,
and whether a citizen was told that he or she was free to leave.
The decision whether the encounter was consensual must be made
based on the totality of the circumstances.
Harris, 266 Va. at 32, 581 S.E.2d at 209 (citations omitted). “We also examine what, if
anything, the officer stated to the individual during the encounter.” Barkley v. Commonwealth,
39 Va. App. 682, 692, 576 S.E.2d 234, 239 (2003). “When a police officer confronts a person
and informs the individual that he or she has been specifically identified as a suspect in a
particular crime which the officer is investigating, that factor is significant among the ‘totality of
the circumstances’ to determine whether a reasonable person would feel free to leave.” McGee,
25 Va. App. at 200, 487 S.E.2d at 262 (emphasis added).
Viewing the evidence in the light most favorable to Belfield, Commonwealth v. Spencer,
21 Va. App. 156, 159, 462 S.E.2d 899, 901 (1995), we conclude that Belfield was not seized for
purposes of the Fourth Amendment at the time Officer Shelton parked his car twenty to thirty
feet from the car in which Belfield was sitting, asked her why she was there, and asked for and
received identification. See Drayton, 536 U.S. at 201; Londono, 40 Va. App. at 399, 579 S.E.2d
at 651. Officer Shelton was the only officer at the scene when he initiated contact with Belfield.
Although he arrived in a marked patrol car, its emergency lights were not activated. The record
shows that as no other cars were parked in the area, the car, assuming someone were to take the
driver’s seat, was not blocked from leaving the parking lot. Nothing in the record demonstrates
that Belfield or the passengers in the rear seat were prevented from leaving the car and walking
away once the officer approached them. When Officer Shelton approached the car his service
revolver was holstered and he had only a flashlight in his hands. The dialogue between Belfield
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and Officer Shelton leading to the production of her identification card was brief. Officer
Shelton had already received Belfield’s identification by the time the second officer arrived
“[a]pproximately a minute, a minute and a half” later.
Moreover, while Officer Shelton informed Belfield that he was investigating a complaint
of possible drug activity, involving a car matching the description of the car in which Belfield
and the others were sitting, he did not accuse Belfield of drug activity or tell her that she was the
focus of the investigation. He simply asked “her why they were sitting in the parking lot
especially parked so far away from the store.” When Belfield stated that they were waiting for
her brother and his girlfriend, Officer Shelton asked her for her identification without making
any accusation that she was involved in illegal drug activity.
We note that circumstances in McGee, 25 Va. App. at 196-97, 487 S.E.2d at 260-61, are
distinguishable from those presented here.3 In McGee, three officers responded to a tip from an
anonymous informant that a “black male wearing a white t-shirt, black shorts, and white tennis
shoes was selling drugs” at a specific location. Id. at 196, 487 S.E.2d at 260. The anonymous
tipster “did not relate the circumstances under which the drugs were being sold, the identity of
the seller, the nature of the drugs being sold or where the drugs were located.” Id. However,
when the officer there approached McGee, he told McGee that he was responding to a dispatch
specifically alleging that “[McGee] was on the corner selling drugs and [that he] matched the
description of the person who had been reported selling drugs.” Id. After he asked McGee for
permission to conduct a pat-down search, the officer discovered contraband in McGee’s clinched
3
We also note that the circumstances in Jackson v. Commonwealth, 267 Va. 666, 594
S.E.2d 595 (2004), a case Belfield cites in support of her argument that she was unlawfully
seized, are distinguishable from those presented here. In Jackson, the Court determined that an
illegal seizure occurred when officers conducted an investigative traffic stop following an
anonymous tip that had not been determined to be reliable. Here, there was no investigative
traffic stop.
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fist. We concluded there that the officers illegally seized McGee when they approached him
based solely on an uncorroborated anonymous tip and specifically accused him of selling drugs
at that location.
Unlike in McGee, Officer Shelton did not tell Belfield that he specifically suspected her
of engaging in illegal drug activity. He did not ask her to step out of the car. When he asked her
why she was there, she responded. He told her that he had received a complaint reporting
possible drug activity involving a car matching the description of the car in the parking lot. In
McGee, the seizing officer conducted a pat-down. Here, Officer Shelton simply requested
Belfield’s identification, which she promptly supplied. Belfield’s seizure occurred only after
Officer Shelton received information that there was an arrest warrant on file commanding her
arrest.4
From the totality of these circumstances, we conclude that the initial encounter between
Officer Shelton and Belfield was consensual and continued to be so when he asked Belfield for
her identification. Once Officer Shelton learned of the outstanding warrant commanding the
arrest of Belfield, the encounter became a lawful seizure and the evidence found during the
search incident to the arrest was lawfully obtained. Accordingly, we hold that the trial court
erred in granting Belfield’s motion to suppress. Having concluded that the initial encounter
between Officer Shelton and Belfield was consensual, it is not necessary for us to address
whether there was sufficient reliability of the anonymous tip to provide reasonable articulable
suspicion for Officer Shelton to detain Belfield for further investigation.
4
The incriminating evidence sought to be suppressed was discovered during a search
incident to Belfield’s arrest pursuant to an unchallenged arrest warrant. Given our holding, we
need not address whether the arrest warrant purged any illegal taint associated with the prior,
allegedly unlawful, encounter. See generally, 6 Wayne R. LaFave, Search & Seizure § 11.4(d)
(2004 & Supp. 2007).
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For these reasons, we reverse the trial court’s ruling suppressing the cocaine and remand
for further proceedings consistent with this opinion.
Reversed and remanded.
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