Vernon Otis Silver v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Bray and Bumgardner Argued at Norfolk, Virginia

VERNON OTIS SILVER MEMORANDUM OPINION * BY v. Record No. 1684-97-1 JUDGE RICHARD S. BRAY AUGUST 4, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Junius P. Fulton, Judge Christopher B. Cashen for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General; John K. Byrum, Jr., Assistant Attorney General, on brief), for appellee.

Vernon Otis Silver (defendant) was convicted for possession

of cocaine in violation of Code § 18.2-250. On appeal, he

complains that the trial court erroneously denied his motion to

suppress evidence gathered during an unconstitutional search of

his person. Finding the disputed search consensual, we affirm

the decision of the trial court.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary for

disposition of the appeal.

Guided by well-established principles, we view the evidence

in the light most favorable to the Commonwealth, granting all

reasonable inferences fairly deducible from such evidence. See

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991). “Ultimate 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. In performing such analysis, we are bound by the trial court's findings of historical fact unless “plainly wrong” or without evidence to support it, and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.

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, 699 (1996)). "We 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." McGee, 25 Va. App. at 198, 487 S.E.2d at 261.

Armed with a search warrant for a local residence, a Norfolk

police “raid team,” comprised of “14-18 officers,” traveled in an

unmarked van to the designated address, arriving at approximately

9:00 p.m. Before exiting the vehicle, Officer Marian Pederson

observed defendant outside the residence, walking "from the

rear . . . towards the front." Moments later, the raid team,

dressed in “riot gear” and with weapons drawn, rushed from the

van toward the dwelling, and an officer accidentally collided

with defendant, then on the sidewalk and “in the way,”

“knock[ing] him down to the side.” As the team continued to the

house, Officer Pederson “broke out of . . . line,” holstered her

weapon, “took [defendant] by the arm[,]” and "helped him stand

- 2 - up." She identified herself as a police officer, and moved with

defendant approximately two to three feet "to the side . . . [to]

talk to him." Defendant was not restrained in any manner.

Pederson asked defendant if he possessed any illegal

narcotics or weapons, and he answered "no." He then acceded to

Pederson's request to search his person, and she discovered a

“folded” piece of paper containing suspected cocaine. During

this encounter, police could be heard inside the residence

“yelling,” “Norfolk Police, search warrant” and "get down, get

down." Police arrested defendant for the instant offense after a

chemical analysis confirmed that the substance was cocaine. "Fourth Amendment jurisprudence recognizes three categories

of police-citizen confrontations: (1) consensual encounters,

(2) brief, minimally intrusive investigatory detentions, based

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) (citations omitted). A “consensual encounter between police and an individual has no fourth amendment implications unless accompanied by such 'coercion or show of force or authority by the officer . . . that would cause a person . . . reasonably to have believed that he or she was required to comply' and 'not free to leave.'”

Id. (citations omitted). In contrast, a citizen has been seized

as contemplated by the Fourth Amendment if, in view of all of the circumstances surrounding the incident, a reasonable person

- 3 -  would have believed that he was not free to leave. 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 voice indicating that compliance with the officer's request might be compelled.

Baldwin v. Commonwealth, 243 Va. 191, 196, 423 S.E.2d 645, 647-48

(1992) (quoting United States v. Mendenhall, 446 U.S. 544, 553-54

(1980) (citations omitted)). Thus, “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.”

Id. at 196-97, 423 S.E.2d at 648 (quoting Florida v. Royer, 460

U.S. 491, 497 (1983) (citations omitted)). "Cooperation with

police and '[a]cquiescence in "a police request, which most

citizens will do, does not negate 'the consensual nature of the

response.'"'" Wechsler, 20 Va. App. at 170, 455 S.E.2d at 747.

"The test of a valid consent search is whether it was 'freely and

voluntarily given,'“ and is ”'a question of fact to be determined

from the totality of all the circumstances.'" Deer v.

Commonwealth, 17 Va. App. 730, 734-35, 441 S.E.2d 33, 36 (1994)

- 4 - (citations omitted).

Here, defendant argues that the "aggressive display of force

and authority“ by police reasonably ”indicate[d] . . . that he

was captured and not free to leave the scene," resulting in an

unlawful seizure. The record, however, clearly establishes that,

save the inadvertent collision between defendant and an officer

running toward the target residence, the “force and authority” in

issue was directed entirely at the dwelling and its occupants.

After the incident, Pederson simply moved defendant to safety and

began an exchange with him which lacked any suggestion of

intimidation, restraint or force. Under such circumstances,

defendant could not reasonably have concluded that he was

“required to comply” or “not free to leave.” Accordingly, the disputed evidence was lawfully obtained

during a consensual encounter, and the court properly denied

defendant's motion to suppress. We, therefore, affirm the

conviction.

Affirmed.

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