Darryl Leon Hall v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia
DARRYL LEON HALL
MEMORANDUM OPINION * BY
v. Record No. 2293-00-1 JUDGE JERE M. H. WILLIS, JR.
JULY 31, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Joseph Canada, Judge
Ben Pavek (Office of the Public Defender, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his bench trial conviction for possession of
cocaine, in violation of Code § 18.2-250, Darryl Leon Hall
contends that the trial court erred in denying his motion to
suppress evidence obtained in violation of his Fourth Amendment
rights. For the following reasons, we affirm.
I. BACKGROUND
On February 17, 2000, Virginia Beach Police Officers S.J.
Conklin and D.A. Keisel were conducting surveillance of 3244
Peele Court in response to several reports of drug activity
there. The police had previously served a search warrant on the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
residence and had recovered cocaine. Officer Conklin testified
that he was familiar with the neighborhood, which he
characterized as an "open-air drug market" with "lot[s] of
firearms violations," an area where numerous "shots fired" had
been reported and numerous "drug arrests" had occurred.
At approximately 3:00 p.m., the officers observed Hall
approach the residence and knock on the front door. The woman
who lived there "came to the door, looked to the right, looked
to the left, saw [the police], [and] shut the door." Hall went
to the backyard where he could not be observed because of a
"privacy fence." The officers exited their vehicle and "walked
up the alley towards the house, . . . looked through the fence,
[saw] nobody in the back yard [sic] and [noticed that] the
drapes were drawn." After approximately fifteen to twenty
minutes, Hall exited the rear of the house.
As Hall approached the officers, Officer Conklin said,
"Excuse me. Can we talk to you for a minute?" Hall then
"initiated conversation" with the officers, and Officer Conklin
asked him "if he knew he was coming from a known drug house."
Hall replied that he did not.
Officer Conklin then asked whether he could see some
identification and Hall responded, "Yes. I'll give you
everything I have." He then pulled out a lighter and his
wallet, removed his ID from his wallet and gave it to Officer
Conklin who "ran a local check" from his shoulder radio.
- 2 -
After Hall gave Officer Conklin his identification, the
woman the officers had seen at the front door exited the house,
approached the group and began arguing with Hall about money.
As she approached, Officer Conklin "advised [Hall] that he was
going to pat him down for narcotics and weapons." Officer
Conklin testified that, as Hall emptied his pockets, he noticed
a paper towel sticking out of the only pocket Hall failed to
empty, and this made him "suspicious."
Officer Conklin testified that during previous arrests, he
had recovered "crack stems or cocaine smoking devices wrapped in
towels." He stated that "in [his] experience they normally take
paper towels and wet it or wad it up around a smoking device so
they don't burn their finger when they're smoking it." Officer
Conklin further stated that he decided to pat Hall down within
"[a] few seconds . . . [t]en seconds maybe" after Hall handed
him his identification.
In denying the motion to suppress, the trial court
concluded:
When the officer asked [Hall] for ID it was
still consentual [sic] because [Hall] not
only offered him his ID, he was cooperative.
He said, I'll give you everything I have.
* * * * * * *
The testimony was that after the officer had
[Hall's] ID, then the woman interjected
herself or at some point became part of
this. It was totally consentual [sic] when
he asked him for the ID, and then while he
was looking at the ID, checking on the
- 3 -
warrants, he was apparently still pushing
around in his pocket and pulling out things;
and he was checking his radio to determine
whether there were any warrants. The court
feels . . . that during that procedure, he
spotted the tissue or paper towel, whatever
it is; and based on that, it's reasonable
suspicion and he searched him.
Hall pled not guilty, but stipulated to the Commonwealth's
evidence. He was convicted of possession of cocaine.
II. ANALYSIS
Hall contends that he was unlawfully "seized" when Officer
Conklin asked for and took possession of his identification.
Therefore, he argues, all evidence obtained thereafter was the
fruit of an unlawful seizure and should have been suppressed.
"In reviewing a trial court's denial of a motion to
suppress, 'the burden is upon the defendant to show that the
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)
(en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265
S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980)). "Ultimate
questions of reasonable suspicion and probable cause to make a
warrantless search" involve issues of both law and fact,
reviewable de novo on appeal. Ornelas v. United States, 517
U.S. 690, 699 (1996). Similarly, whether a police-citizen
encounter constitutes a seizure, thereby implicating the Fourth
Amendment, presents a mixed question of law and fact, requiring
- 4 -
independent appellate review. See Watson v. Commonwealth, 19
Va. App. 659, 663, 454 S.E.2d 358, 361 (1995). "[I]n performing
such analysis, 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.
Officer Conklin did not effect a seizure when he requested
Hall's identification in order to conduct a "check" for
outstanding warrants. "[A] person has been 'seized' within the
meaning of the Fourth Amendment 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). See Baldwin v.
Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647-48 (1992).
"Thus, a seizure occurs when a law enforcement officer, by
physical force or some display of authority, restrains in some
manner a citizen's freedom of movement. Only when such
restraint is imposed is there a basis for invoking Fourth
Amendment safeguards." McCain v. Commonwealth, 261 Va. 483,
490-91, 545 S.E.2d 541, 546 (2001) (citations omitted).
Examples of circumstances that might
indicate a seizure, even where the person
did not attempt to leave, would be the
threatening presence of several officers,
the display of a weapon by an officer, some
physical touching of the person of the
citizen, or the use of language or tone of
- 5 -
voice indicating that compliance with the
officer's request might be compelled.
Mendenhall, 446 U.S. at 554 (citation omitted). "In contrast, a
police request made in a public place for a person to produce
some identification, by itself, generally does not constitute a
Fourth Amendment seizure." McCain, 261 Va. at 491, 545 S.E.2d
at 546 (citations omitted).
Officer Conklin requested Hall's identification without any
show of force or display of authority that would have led a
reasonable person to believe that he was not free to leave.
Hall chose to remain and to answer the officers' questions. He
voluntarily gave his identification to Officer Conklin. Nothing
in the record suggests that the officers threatened,
intimidated, restrained, or coerced Hall. Officer Conklin
retained Hall's identification for "[a] few seconds . . . [t]en
seconds maybe," during which time Hall could have requested its
return or simply walked away. He did neither. Officer
Conklin's mere request for Hall's identification and his brief
use of that identification for a "check" did not effect a
seizure for Fourth Amendment purposes. "A seizure does not
occur in the absence of physical force used by a law enforcement
officer or a defendant's submission to an officer's assertion of
authority." Id.
"Once a police officer has properly detained a suspect for
questioning, he may conduct a limited pat-down search for
- 6 -
weapons if he reasonably believes that the suspect might be
armed and dangerous." Williams v. Commonwealth, 4 Va. App. 53,
66, 354 S.E.2d 79, 86 (1987). To support the pat-down, the
officer must be able to point to articulable facts from which he
could reasonably infer that the defendant might be armed and
dangerous. See James v. Commonwealth, 22 Va. App. 740, 754, 473
S.E.2d 90, 92 (1996).
"Among the circumstances to be considered in
connection with this issue are the
'characteristics of the area' where the stop
occurs, the time of the stop, whether late
at night or not, as well as any suspicious
conduct of the person accosted such as an
obvious attempt to avoid officers or any
nervous conduct on the discovery of their
presence."
Williams, 4 Va. App. at 67, 354 S.E.2d at 86-87 (quoting United
States v. Bull, 565 F.2d 869, 870-71 (4th Cir. 1977), cert.
denied, 435 U.S. 946 (1978)).
The encounter in this case took place in a high crime area.
Officer Conklin testified that the neighborhood was an "open-air
drug market" with "lot[s] of firearms violations," an area where
numerous "shots fired" had been reported and numerous "drug
arrests" had occurred. The police knew the residence to be one
in which narcotics had previously been found and about which
recent complaints of narcotics activity had been received.
"Suspicion of narcotics possession and distribution is . . .
recognized as a circumstance which, standing alone, gives rise
to an inference of dangerousness." Williams, 4 Va. App. at 67,
- 7 -
354 S.E.2d at 87 (citation omitted). Under these circumstances,
the police were reasonably concerned for their safety and acted
reasonably in conducting a protective pat-down search for
weapons. "To hold otherwise would be an invitation to violence
in what is always a potentially explosive situation." Id.
The judgment of the trial court is affirmed.
Affirmed.
- 8 -
Benton, J., dissenting.
The evidence proved that the officer obtained Darryl Leon
Hall's identification, retained it "to see if he had any
warrants on him," and requested his dispatcher to check for
outstanding warrants against Hall. I would hold that when the
officer did so, he seized Hall for purposes of the Fourth
Amendment. See United States v. Mendenhall, 446 U.S. 544, 554
(1980) (holding that a person has been seized "if, in view of
all the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave").
Moreover, when a police officer subjects a person to a
protective frisk for weapons, the officer intrudes on that
person's privacy and conducts a search and seizure under the
Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 16-19 (1968). See
also Toliver v. Commonwealth, 23 Va. App. 34, 36, 473 S.E.2d
722, 724 (1996) (holding that "[w]hile being frisked, no
reasonable person would feel free to walk away").
To conduct a protective frisk for weapons of an "individual
whose suspicious behavior he is investigating," an officer must
have a reasonable articulable suspicion that the individual "is
armed and presently dangerous to the officer or to others."
Terry, 392 U.S. at 24. "The purpose of this limited search is
not to discover evidence of crime, but to allow the officer to
pursue his investigation without fear of violence." Adams v.
Williams, 407 U.S. 143, 146 (1972).
- 9 -
The record contains no evidence supporting a reasonable
articulable suspicion that Hall was armed and dangerous.
Indeed, the officer's testimony established that he only frisked
Hall to discover drugs. He testified as follows:
I advised Mr. Hall I was going to pat him
down for narcotics and weapons. I noticed a
paper towel sticking out of his pocket. The
pocket the paper towel was sticking out of
- that was the only pocket I went to go
into. When he said he would give me
everything, he emptied everything but that
pocket; and based on the other arrests in
the neighborhood, I have recovered crack
stems or cocaine smoking devices wrapped in
towels.
This testimony does not indicate that the officer was justified
in believing or even did believe that Hall was armed and
presently dangerous. The officer merely believed that one of
Hall's pockets contained drug paraphernalia. In fact, he
searched only the pocket where the paper towel indicated to him
the presence of a "smoking device." He was not searching for
weapons because "that was the only pocket [he] went to go into."
The majority relies on testimony about the surrounding area
and the general circumstances of narcotics activity to justify
the search. Even if such factors justified a protective frisk
for weapons, the officer did not conduct such a search. He was
looking for the evidence of crime and not to protect his safety.
When an officer makes "no claim that he suspected [the paper
towel] to be a weapon," he had no basis to seize it. Minnesota
v. Dickerson, 508 U.S. 366, 378 (1993). The seizure and search
- 10 -
of the paper towel were the product of an "exploration
. . . unrelated to '[t]he sole justification of the search
[under Terry:] . . . the protection of the police officer and
others nearby.'" Dickerson, 508 U.S. at 378 (quoting Terry, 392
U.S. at 29). As in Dickerson, this officer's search for weapons
"amounted to the sort of evidentiary search that Terry expressly
refused to authorize." Dickerson, 508 U.S. at 378.
[E]vidence may not be introduced if it was
discovered by means of a seizure and search
which were not reasonably related in scope
to the justification for their initiation.
. . . Suffice it to note that [a
warrantless weapons] search, unlike a search
without a warrant incident to a lawful
arrest, is not justified by any need to
prevent the disappearance or destruction of
evidence of crime. The sole justification
of the search in the present situation is
the protection of the police officer and
others nearby, and it must therefore be
confined in scope to an intrusion reasonably
designed to discover guns, knives, clubs, or
other hidden instruments for the assault of
the police officer.
Terry, 392 U.S. at 29 (citations omitted). See also Harris v.
Commonwealth, 241 Va. 146, 154, 400 S.E.2d 191, 196 (1991)
(holding that the opening of a film canister found in a pat-down
search for weapons exceeded the scope of a Terry search even
though the officer's experience led him to believe "people kept
their narcotics and drugs in film canisters and 'things of that
nature'").
- 11 -
I would hold the evidence provides no facts supporting a
reasonable articulable suspicion that Hall was armed and
dangerous. Thus, the record establishes no lawful justification
for the officer to seize the paper towel he saw in Hall's
pocket. As in Toliver, the following is controlling:
The circumstances were insufficient to
give [the] Officer . . . an objectively
reasonable basis for suspecting that [Hall]
was armed and dangerous. He had no
information that [Hall] was involved in
criminal activity, nor had he observed any
criminal behavior. The mere fact that
[Hall] was in an area known for drug use
created no inference that he was involved in
criminal activity. [Hall] cooperated with
[the] Officer . . . and . . . gave his
correct name. Nothing suggested that he was
carrying a concealed weapon. Therefore, the
frisk was illegal and the trial court erred
in admitting the evidence . . . .
23 Va. App. at 37, 473 S.E.2d at 724 (citations omitted).
For these reasons, I would hold that the trial judge erred
in refusing to suppress the evidence. I would, therefore,
reverse the conviction and remand for a new trial.
- 12 -