Chesterfield PD--OCer Encounter

[TFred]

Actually TFred, I was not aware of it - guess it has seldom been an issue for me. Have corrected that now though (I hope) by downloading a fix for Mozilla Firefox which will give me that option.

Today was a good day - I learned several new things. One on MA firearms cards and permits + this on word wrap. Never too proud to admit I did not know something.

Edited to add: Did NOT work for me even though the option was selected. I'll have to look into this further tomorrow.

Glad to help... Oh bummer on the ETA... I was going to ask you if you meant a Firefox plug-in, and which one it was... I would be interested in that as well, if you can get it to work.

TFred

 

[Citizen]

Ok, I've spent the day thinking about this, having never actually been faced with that specific question before. Here's a summary of what I've learned - right click and "save as" this text file:
http://virginialegaldefense.com/Stuff/Documents/self_identification.txt

Wow! Fifteen pages of info!

Thank you!

Can we send some money your way for all the work and value? Maybe for the Skidmark defense, depending on how that works?

Its one thing to occasionally toss in a legal comment and a cite here and there like any member; its something else to work up fifteen pages of quotes and cites.

 

[user]

Thanks, user.

Given that the one case you cite that deals with that specific was in 1985, IMHO, IANAL, it is void post-Hiibel, which was 2004.

Not void. Limited. The cops have to have a reason to stop you before a municipal ordinance requiring that you identify yourself can be effective. Of course, they don't have to tell you what that reason is, and it can change over time. There's one case that says that the cops' views on the matter are pretty much irrelevant as long as there was, in fact, an objective reason to stop the person.

Here's the sort of stuff I hear in court:

"Your honor, the suspect appeared to be unusually nervous, furtive, and fidgety. He was present at a place known to harbor illegal drug transactions. He appeared to be in possession of a weapon. And when I encountered him in a consensual manner, he refused to identify himself, refused to state his address, destination, or the reason for his presence in that high-crime area. He seemed to be increasingly angry and agitated as a result of my presence and attempts to engage him in conversation. He was extremely unco-operative. I therefore suspected that he may have been engaged in illegal behavior in instituted a Terry stop, recovered his firearm during a routine weapons-pat-down, and demanded that he identify himself under the municipal ordinance. He refused, whereupon I placed him in full custodial arrest."

Btw, the phrase, "high-crime area", is synonymous with "urban area".

 

[user]

Wow! Fifteen pages of info!

Thank you!

Can we send some money your way for all the work and value? Maybe for the Skidmark defense, depending on how that works?

Its one thing to occasionally toss in a legal comment and a cite here and there like any member; its something else to work up fifteen pages of quotes and cites.

All donations are gratefully accepted.

Virginia Legal Defense, P.O. Box 100, Broad Run, VA 20137

Btw, I was thinking how Skidmark always uses the signature/tag "stay safe." I'm thinking about why I go to such lengths to inform gun-totin' folks about Virginia law. The reason is that you are not safe from The System. Skidmark's "stay safe" can be generalized - it doesn't just apply as against "badguys"; it applies as against The System. My personal view is that the "beast" mentioned in the Apocalypse of John does not refer to a human. I think it represents The System. The judicial function and its associated machinery exists to protect The System (and you as a part of The System, as long as you participate). However, The System is a like a mob in a crowded stadium. Or as Adam Smith put it, a collection of gazillions of individual transactions in which each person seeks to maximize his own interests. It behaves like a wild boar - when it's eating, it's a happy grunting glutton; when it's cornered and stuck, it panics and will trample and gore anything it can. Just like a mob in a crowded stadium - when, in that Bruce Willis, Daymon Wayons movie, "The Last Boy Scout", the sniper opens up on the fans, everyone panics and tramples the young, elderly, and infirm.

Seen another way, take the standard, Gaussian, or "bell" curve. It describes things that are "normally distributed", such as the frequency of defects in new cars. That's the basis of my saying, with respect to cops, lawyers, and just about every other occupation, "Some are really good, some are really bad, and most are average." It's true by definition. Well, most people are average. If you're "normal", then you're within one standard deviation of the mean from the center of the curve. Or, on an IQ test scale, between scores of 85 and 115. The problem built into The System is that the Average Wal-Mart Shopper, or the "Average Man", understands himself to be the epitome, the zenith, of all creation. So, from his perspective, the graph gets folded over to the negative side from the point where his own measurement lies. It's sort of like what my father used to say, "Everybody's messed up, except for me and you, and sometimes, I ain't too sure about you."; or like my grandmother said, "You ain'no better'n me! And if you think y'are, I'll knock ya down!" It doesn't matter to the average person what kind of social deviant you are - if you're "not normal", you're evil. Whether you're Charles Manson or Mother Theresa, he doesn't care - you're weird and ought to be locked up.

My mission is to be an objective observer of The System, and to describe what I see as accurately as possible so that The Elect will survive. Sometimes, my comments are taken as judgmental or condemning, especially where Sacred Institutions, such as the Supreme Holy Father, are concerned. I don't mean it that way, I'm just saying that the emperor has no clothes on.

By the way, "what have you got in your wallet?" -- the mark of the beast, perhaps? I do, at least for now; I'm a participant in The System. Lots of people are getting ready, though, for the time when the phrase, "come out of her, my people", will be appropriate.

"Stay safe!"

 

[wrightme]

user, but the point I see (that seems to be not being noted) is that Hiibel indicates the level of "Stop and ID" for non-consensual stops. In other words, according to the ruling in Hiibel, states can create non-vague statutes that allow LE to "Stop and ID" for RAS, not for consensual stops.

This is what I am attempting to point out. Municipal "Stop and ID" statutes that are not part of a state requirement do not appear to fit the mold of "state statute."

 

[user]

user, but the point I see (that seems to be not being noted) is that Hiibel indicates the level of "Stop and ID" for non-consensual stops. In other words, according to the ruling in Hiibel, states can create non-vague statutes that allow LE to "Stop and ID" for RAS, not for consensual stops.

This is what I am attempting to point out. Municipal "Stop and ID" statutes that are not part of a state requirement do not appear to fit the mold of "state statute."

Depends on what state or commonwealth you're in. In Virginia, municipal corporations are creatures of the Commonwealth and have the powers that the Commonwealth grants to them; they function as divisions of state government. Analytically, a municipal ordinances IS a "state statute" in Virginia. Also, the bulk of Virginia's legal system is not statutory, at least in the sense in which you've been using the word. When the Duke of Normandy sent his son, William the Bastard (not the child of his wife, and not even the eldest son) over to England, it was because William had no chance of inheritance in France. When William dropped the title, "the Bastard", and started calling himself, "the Conqueror", Virginia's legal system began. Virginia's legal system is almost a thousand years of history, royal statutes, parliamentary decrees, and case decisions. And, unless "repugnant" to the general law or Constitution of Virginia, just as much the law of Virginia as anything you'll find in the Code.

From my perspective, that's one of the things that makes Virginia the last bastion of civilization on Earth. People in places like, say, Nevada, whose legal system is based on the Roman model, have no history within which to find themselves. No context. Like blind people who have no idea what road they're on. In The Grapes of Wrath, "Grandma Joad" says, upon leaving the homestead, "How will we know it's us, without our stuff?" If you know where you've been, legally speaking, and you know how you got where you are, then where you are has meaning. Otherwise, you're adrift in a sea of "who's important" and "who's not", where social and economic status is all that matters. "It's not what you know, it's who you know" is the rule in places like Maryland and New York for a very good reason.

 

[wrightme]

IMHO, in Nevada, as opposed to "those laws were where we start," we are "the Constitution is where we start." I like that myself.

 

[peter nap]

I have made over six thousand posts here, read at least a hundred thousand, argued with idiots and the ignorant and a few I'm not even sure qualify as human.

I've also been extremely proud to share the same turf with members that are dedicated, some brilliant, some just well schooled in the school of hard knocks....

BUT,

the last two posts by Dan just set a new benchmark for well thought out and brilliantly presented thoughts, for this board.

Thank you Dan!

 

[user]

I have made over six thousand posts here, read at least a hundred thousand, argued with idiots and the ignorant and a few I'm not even sure qualify as human.

I've also been extremely proud to share the same turf with members that are dedicated, some brilliant, some just well schooled in the school of hard knocks....

BUT,

the last two posts by Dan just set a new benchmark for well thought out and brilliantly presented thoughts, for this board.

Thank you Dan!

Aw, shucks (head down, toe of right shoe twisting in the dirt).

Btw, here's an unpublished opinion of the Virginia Court of Appeals that I think is a good indication of where the judiciary's collective head is at on this issue. Be sure to read the dissent, too. I apologize for putting the entire thing here (and again without proper formatting). I think that, though of no precedential value, it's an important discussion of the issues:

Lantion v. Commonwealth, 07 Vap UNP 2617054 (2007)

UNPUBLISHED
IN THE COURT OF APPEALS OF VIRGINIA
ARGUED AT RICHMOND, VIRGINIA

CRAIG M. LANTION
v.
COMMONWEALTH OF VIRGINIA

Record No. 2617-05-4**
Decided: December 18, 2007

Present: Chief Judge Felton, Judges Elder, Frank, Humphreys,
Clements, Kelsey, McClanahan, Haley, Petty and Beales

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Gaylord L. Finch, Jr., Judge

Affirmed.

COUNSEL

Laura E. Byrum (Petrovich & Walsh, P.L.C., on brief), for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

MEMORANDUM OPINION* BY JUDGE JAMES W. HALEY, JR.:

A jury convicted Craig M. Lantion of possessing cocaine. On appeal, Lantion argues the trial court erred by not granting his pretrial motion to suppress. A panel of our Court agreed with Lantion and reversed his conviction. Upon rehearing this matter en banc, we conclude that the trial court did not err in denying Lantion's motion to suppress. We thus affirm Lantion's conviction.

I.

On appeal, we address the legal issues arising from a suppression motion “only after the relevant historical facts have been established.” Logan v. Commonwealth, 47 Va. App. 168, 171, 622 S.E.2d 771, 772 (2005) (en banc). We review the facts developed in the trial court “in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” Kyer v. Commonwealth, 45 Va. App. 473, 477, 612 S.E.2d 213, 215 (2005) (en banc) (citation omitted).

So viewed, the evidence showed that Officer Swartz received a report of domestic violence at 10:30 a.m. on New Year's Day. He arrived at the residence seven minutes later and was invited into the living room by the woman who had made the report. She explained that she, her boyfriend, and his friend had been having a party to celebrate the New Year. She claimed her boyfriend assaulted her when she refused to have sex with his friend in exchange for cocaine. Her boyfriend left the apartment, she added, before the officer arrived.

While the woman explained what had happened, she maintained eye contact with the officer. When Officer Swartz asked her whether anyone else was still in the residence, however, she immediately “looked away” and began curiously “moving back and forth.” Appearing nervous and disheveled, she gave no answer to the officer's question. He asked again. She finally replied that “somebody” was in the bedroom. Officer Swartz again followed up, asking exactly who was in the bedroom. She said “C” and could not provide a full name.

The woman walked the officer back to the bedroom door. The door was closed. It had a fist-sized hole punched all the way through the door by the doorknob. Officer Swartz opened the door and observed a fully clothed adult male lying on top of the bed, apparently sleeping. Swartz woke him and asked him “numerous times” to identify himself. He refused to do so. The woman interjected that “he was not involved.” Swartz then asked him if he had any weapons in his possession. He said he had a knife.

Suspecting the unidentified man to be the boyfriend's “friend” involved in the earlier sex-for-drugs scheme, Officer Swartz detained the man and simultaneously frisked him for weapons. Officer Swartz felt an object in the man's right pocket which he believed to be a knife. Swartz emptied the pocket and found a knife. He felt another object in the man's left pocket. He reached into that pocket and “grabbed everything in the pocket and pulled it all out.” Everything came out “in one big handful” — a second knife, money, and a rock of cocaine. Officer Swartz arrested the man, later identified as Lantion, for possessing cocaine.

II.

“Though the ultimate question whether the officers violated the Fourth Amendment triggers de novo appellate scrutiny, we defer to the trial court's findings of ‘historical fact’ and give ‘due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.’” Slayton v. Commonwealth, 41 Va. App. 101, 105, 582 S.E.2d 448, 449-50 (2003) (citation omitted). “To prevail on appeal, ‘the defendant must show that the trial court's denial of his suppression motion, when the evidence is considered in the light most favorable to the prosecution, was reversible error.’” Id. at 105, 582 S.E.2d at 450 (quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003)).

At his suppression hearing, Lantion argued that Officer Swartz unlawfully detained him and frisked him for weapons. These constitutional violations were compounded, Lantion contends, when Officer Swartz exceeded the proper scope of a weapons frisk by pulling cocaine out of Lantion's pocket. The trial court rejected each of these arguments, as do we.

(a) OFFICER SWARTZ'S SEIZURE OF LANTION

Before addressing whether Lantion's seizure was unlawful, we must first determine when it took place.1 Lantion asserts that his detention occurred “the instant” Officer Swartz “walked into the bedroom of the private residence where Lantion was asleep and woke Lantion by identifying himself as a police officer.” At that point, however, Officer Swartz was an invited guest in the apartment and had been escorted to the bedroom by the victim. Officer Swartz did not, by his mere presence, seize every occupant of the apartment. Nor did he seize Lantion by simply asking him for his identity. As long as an officer refrains from inducing cooperation by coercive means, he needs no suspicion of criminality to “‘pose questions’” or “‘ask for identification’” from an otherwise undetained suspect. Barkley v. Commonwealth, 39 Va. App. 682, 691, 576 S.E.2d 234, 238 (2003) (quoting United States v. Drayton, 536 U.S. 194, 201 (2002)).2

No evidence of coercion exists in this record. Officer Swartz did not draw his weapon, corer Lantion in the room, order Lantion not to move, or in any way threaten Lantion physically or verbally. Nor did he make a display of authority simply by being present in the room. We accept that, from Lantion's subjective perspective, he may have been intimidated simply by being in the same room with a police officer in the midst of an ongoing investigation. The objective reasonable person standard, however, “presupposes an innocent person.” Florida v. Bostick, 501 U.S. 429, 438 (1991) (emphasis in original); see also Baldwin v. Commonwealth, 243 Va. 191, 197, 413 S.E.2d 645, 648 (1992); Barkley, 39 Va. App. at 692, 576 S.E.2d at 239. An innocent person — which, in this case, would be someone without cocaine in his pocket — would not have felt the unique anxieties weighing upon Lantion.

For these reasons, we reject Lantion's argument that Officer Swartz seized him by entering the bedroom and rousing him from sleep. Under settled law, “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, for purposes of the weapons frisk. It is at that point we must judge the lawfulness of the investigatory detention.

(b) REASONABLE SUSPICION JUSTIFYING LANTION'S SEIZURE

As its text makes clear, the Fourth Amendment “does not proscribe all seizures, only those that are ‘unreasonable.’” Barkley, 39 Va. App. at 691, 576 S.E.2d at 238 (citations omitted). While an arrest requires probable cause, a mere investigatory stop requires only a “reasonable suspicion” that criminal activity “may be afoot.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989), and Terry v. Ohio, 392 U.S. 1, 30 (1968)). The likelihood of criminality “need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard” applicable in other contexts. Id. at 274 (citing Sokolow, 490 U.S. at 7). Thus, “‘a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’” Baldwin, 243 Va. at 195, 413 S.E.2d at 647 (quoting Terry, 392 U.S. at 22).

To be sure, “the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal — to enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.” 4 Wayne R. LaFave, Search and Seizure § 9.5(b), at 482 (4th ed. 2004) (citations and footnote omitted). In some cases, a “‘brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information’” may represent the most reasonable response an officer can give under the circumstances. Simmons v. Commonwealth, 217 Va. 552, 554-55, 231 S.E.2d 218, 220 (1977) (quoting Adams v. Williams, 407 U.S. 143, 146 (1972)).3

Equally important, we must consider the “totality of the circumstances — the whole picture,” Baldwin, 243 Va. at 199, 413 S.E.2d at 649 (citation omitted), and not employ the rejected “divide-and-conquer” approach, Arvizu, 534 U.S. at 274, sometimes used to separate a composite fact pattern into a series of seemingly innocuous details. The factual circumstances in aggregate, not in isolation, determine the reasonableness of a police officer's actions. Id.

Approaching the factual record from that vantage point, we believe the totality of the circumstances justified a reasonable suspicion that Lantion was the second male (the boyfriend's “friend”) involved in the earlier sex-for-drugs scheme. At the time he seized Lantion, Officer Swartz knew the following:

• The victim reported she had been assaulted for refusing to participate in the sex-for-drugs scheme. She was to provide the sex; her boyfriend's “friend” was to provide the drugs.

• The victim's report was made only minutes before Officer Swartz arrived on the scene, increasing the likelihood that either the boyfriend or his friend might still be present.

• The victim refused to answer when Officer Swartz asked whether anyone else was in the apartment. She conspicuously looked away and nervously began to rock back and forth as the question was repeated several times.

• When the victim finally answered, she gave a cryptic reply and identified the unknown man only as “C.”

• The victim said her boyfriend was not present in the apartment, leaving Officer Swartz to suspect “C” could be the second male involved in the sex-for-drugs scheme.

• A fist-size hole was next to the knob of the closed bedroom door, suggesting physical force had been used to open a locked door.

• The unidentified “C” repeatedly refused to identify himself. He had no hesitation, however, freely admitting he was armed with a knife.

• The domestic assault victim (after first refusing to tell Officer Swartz whether there was anyone else in the apartment and then, after capitulating, overhearing “C” persistently refuse to identify himself) sought to avoid further questioning of “C” by volunteering that “he was not involved.”

Given these circumstances, a reasonably prudent police officer would have ample justification to briefly detain “C” to investigate the situation further. It would hardly be reasonable for an officer to simply shrug his shoulders, walk away from a domestic assault investigation, and leave an obviously fearful victim alone in an apartment with an armed man whom she could not (or would not) identify. Nor would it be reasonable to expect the officer to complete his investigation while in close quarters with an armed man who refuses to identify himself.

Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.

Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 186 (2004).

Lantion makes much over the fact that the victim attempted to abort Officer Swartz's continuing investigation of “C” by volunteering that “he was not involved.” That should have ended any reasonable suspicion, Lantion contends. Experienced officers know better. “In domestic violence situations, officers may reasonably consider whether the victim is acting out of fear or intimidation, or out of some desire to protect the abuser, both common syndromes.” Fletcher v. Town of Clinton, 196 F.3d 41, 52 (1st Cir. 1999); see also United States v. Brooks, 367 F.3d 1128, 1137 (9th Cir. 2004) (noting that “a victim of domestic violence may deny an assault, especially when an abuser is present”); United States v. Bartelho, 71 F.3d 436, 442 (1st Cir. 1995) (noting “the police were not required” to take the victim's statements at “face value,” given “her demeanor” and “their training regarding domestic violence”). Officer Swartz, therefore, had reasonable suspicion to detain Lantion for further questioning.

(c) WEAPONS FRISK — “ARMED AND DANGEROUS”

Even if Officer Swartz had reasonable suspicion to briefly detain him, Lantion argues the officer went too far in frisking him for weapons. We disagree.

A police officer need not “establish that it was more probable than not that the suspect was armed,” LaFave, supra § 9.6(a), at 621-22, but only that the suspect “may be armed and dangerous,” El-Amin v. Commonwealth, 269 Va. 15, 20, 607 S.E.2d 115, 117 (2005). Indeed, an officer need not be “absolutely certain” the suspect was even armed in the first place. El-Amin, 269 Va. at 22, 607 S.E.2d at 118; see also Simmons v. Commonwealth, 217 Va. 552, 556, 231 S.E.2d 218, 221 (1977) (holding that a weapons frisk may be conducted if the officer “reasonably believes that the individual might be armed”). Instead, the focus remains on whether a reasonably prudent officer “‘would be warranted in the belief that his safety or that of others is in danger.’” El-Amin, 269 Va. at 22, 607 S.E.2d at 118 (quoting Terry, 392 U.S. at 27).

We need not address Lantion's argument on this point in any detail. While repeatedly refusing to identify himself, Lantion openly admitted possessing a knife. Officer Swartz needed no more information than this (when coupled with the preexisting, reasonable suspicion that criminality may be afoot) to have a sufficient belief that his safety or the safety of the victim could be in danger. Though Officer Swartz did not see the concealed knife, or have it brandished in his face, he need not “‘await the glint of steel before he can act to protect his safety.’” State v. Cobbs, 711 P.2d 900, 907 (N.M. Ct. App. 1985) (quoting People v. Benjamin, 414 N.E.2d 645, 648 (N.Y. 1980)).4

Under these circumstances, we cannot say the weapons frisk “was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment; the record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.” Terry, 392 U.S. at 28. The trial court, therefore, did not err in ruling that Officer Swartz had an adequate basis for frisking Lantion for the knife he admittedly possessed.

(d) SCOPE OF WEAPONS FRISK

Finally, Lantion argues that the officer exceeded the lawful scope of a weapons frisk by emptying his pocket of various items (including a rock of cocaine) rather than removing just the knife. We again disagree with Lantion.

Under our standard of review, we address the legal issues arising from a suppression motion “only after the relevant historical facts have been established.” Logan v. Commonwealth, 47 Va. App. 168, 171, 622 S.E.2d 771, 772 (2005) (en banc). On appeal, the facts developed in the trial court must be reviewed “in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” Kyer, 45 Va. App. at 477, 612 S.E.2d at 215 (citation omitted).

The trial court found that Officer Swartz inadvertently discovered the cocaine in the process of obtaining the knife. When “the act of reaching into the pocket and removing the contents is essentially a single act,” we believe “it is unrealistic to require the officer to re-evaluate the available facts after putting his hand into the pocket.” LaFave, supra § 9.6(d), at 670. To “impose such a requirement would constitute a ‘fine tuning’ of Fourth Amendment requirements without any appreciable gain.” Id. And it would be quite “impracticable for the officer to withdraw the suspected item from the pocket without pulling out other objects as well.” Id. For this reason, it was within the scope of the weapons frisk for Officer Swartz to reach into Lantion's pocket and “remove the contents.” See United States v. Dowling, 271 A.2d 406, 408 (D.C. 1970).

III.

The trial court properly denied Lantion's motion to suppress. Reasonable suspicion supported Officer Swartz's decision to detain Lantion and to frisk him for weapons. The frisk did not exceed its proper scope. We thus affirm Lantion's conviction.

Affirmed.

ELDER, J., with whom HUMPHREYS, J., joins, dissenting.

I respectfully dissent. I believe the evidence fails to establish the arresting officer had reasonable, articulable suspicion to detain Craig Lantion when the officer entered the bedroom where Lantion was sleeping and that the officer's discovery of drugs in Lantion's pocket was the fruit of that unreasonable seizure. Accordingly, I would hold the trial court's denial of the motion to suppress was error, and I would reverse Lantion's conviction.

On appeal of a ruling on a motion to suppress, we view the evidence in the light most favorable to the prevailing party, granting to the evidence all reasonable inferences fairly deducible therefrom. Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). “[W]e 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 v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc); see McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001). However, we review de novo the trial court's application of defined legal standards, such as whether the police had reasonable suspicion for a seizure. Ornelas v. United States, 517 U.S. 690, 699 (1996). Our review of the existence of reasonable suspicion involves application of an objective rather than subjective standard. See, e.g., Whren v. United States, 517 U.S. 806, 812-13 (1996); see also Robinson v. Commonwealth, 273 Va. 26, 35-38, 639 S.E.2d 217, 222-24 (2007).

An encounter with a police officer constitutes a seizure for Fourth Amendment purposes “f . . . a reasonable person would not feel free to decline an officer's requests or would not feel free to leave.” Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003) (citing United States v. Mendenhall, 446 U.S. 544, 558-59 (1980)); see also Florida v. Bostick, 501 U.S. 429, 438 (1991) (noting, in context of determining whether suspect was illegally seized, that “[t]he ‘reasonable person’ test presupposes an innocent person”). Such a seizure is reasonable under the Fourth Amendment as a Terry stop, i.e., a “brief, minimally intrusive investigatory detention[],” Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995) (citing Terry v. Ohio, 392 U.S. 1 (1968)), if the officer conducting the stop is aware of facts that “lead[] him reasonably to believe in light of his experience that criminal activity may be afoot” and, importantly, that the person he detains is involved in it, Terry, 392 U.S. at 30. When a police officer detains an individual “for the purpose of requiring him to identify himself, [the officer has] performed a seizure of his person subject to the requirements of the Fourth Amendment.” Brown v. Texas, 443 U.S. 47, 50 (1979).

“[T]he likelihood of criminal activity [required for a Terry stop] need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274 (2002). Nevertheless, an “officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch.”’” Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (quoting Terry, 392 U.S. at 27); see Arvizu, 534 U.S. at 274.

[T]o assure that an individual's reasonable expectation of privacy is not subjected to arbitrary invasions solely at the unfettered discretion of officers in the field, . . . the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual . . . .

Brown, 443 U.S. at 51 (emphasis added) (citation omitted). A person's “presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Wardlow, 528 U.S. at 119.

Applying these standards, I would hold that Lantion was seized when he awoke New Year's morning, in a room “so small that it's just about the size of a king-size bed,” to find a uniformed police officer standing two to three feet away and demanding over and over to know his name and whether he had a weapon. Under these circumstances, no reasonable person — innocent or otherwise — would have felt free to leave or to ignore the officer's questions about whether he was armed.5 See Mendenhall, 446 U.S. at 558-59. Further, when Officer Swartz effected this seizure, he lacked reasonable, articulable suspicion to believe that Lantion was involved in any criminal activity. When Officer Swartz responded to Ms. Mauldin's 911 “domestic assault” call, Mauldin reported that while she, her boyfriend Benny Bowles, and his friend were having a New Year's party, Bowles battered her because she refused to participate in an arrangement he had made for her to have sex with the friend in exchange for cocaine. Officer Swartz testified Mauldin made eye contact and was straightforward in her dealings with him, and Mauldin gave him no reason to believe that Bowles's friend had participated in the argument over the proposed sex-for-drugs trade or in the resulting battery of Mauldin or that she feared Bowles's friend. Further, Mauldin reported Bowles had fled the apartment before the officers arrived, and two other officers began to search the neighborhood for Bowles while Officer Swartz continued speaking with Mauldin. Thus, Officer Swartz had no reason to believe anyone in the apartment at that time posed a threat of domestic violence.

As Officer Swartz continued his conversation with Mauldin, Swartz learned the race of Bowles's friend but did not obtain a further description of him or learn his name. Officer Swartz made no inquiry concerning the friend's whereabouts and asked merely “if there was anyone else present in the apartment.” (Emphasis added). When Mauldin nervously replied that a man she knew only as “C” was in the bedroom, Officer Swartz had no more than a hunch that “C” might be the friend with whom Bowles had hoped to engage in the drug transaction. Instead of asking Mauldin for additional information about “C,” Officer Swartz walked toward the bedroom, where he observed a fist-sized hole in the closed bedroom door right next to the doorknob. He testified he “just wanted to identify who was in [the bedroom] after seeing” the hole and that he entered without asking Mauldin for permission.

The mere presence of that hole in the bedroom door was insufficient to raise Officer Swartz's suspicion beyond a hunch. Officer Swartz made no inquiry of Mauldin regarding how long the hole had been present in the door or whether it had anything to do with the proposed sex-for-drugs trade. Further, Mauldin had reported nothing to Swartz to indicate that Bowles had exhibited any violence toward the friend with the cocaine or that Bowles had made any attempt to take the cocaine by force. Finally, when Officer Swartz entered the bedroom and asked “C” his name, Mauldin stated that he was not involved. Although Officer Swartz was not compelled to accept Mauldin's disclaimer as the truth, the other circumstances of which Officer Swartz was aware at that time did not give him reasonable, articulable suspicion to believe the contrary — that Lantion was, in fact, involved in the sex-for-drugs proposal. Swartz knew only the race of Bowles's friend who possessed the drugs and had no additional descriptive information. Finally, Officer Swartz lacked reasonable, articulable suspicion to believe Lantion likely was engaged in some other offense while he slept at Mauldin's apartment following a New Year's celebration at which the participants had imbibed.

Because I believe the evidence failed to establish reasonable, articulable suspicion to subject Lantion to the investigative detention that led to the discovery of drugs in his pocket, I would hold the trial court's denial of the motion to suppress was error. Accordingly, I would reverse Lantion's conviction.

FOOTNOTES

** [Editor's Note: See previous cases — 07 Vap UNP 2617054, 07 Vap UNP 2617054]

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

1 Lantion claims the Commonwealth conceded in the trial court the officer seized him merely by entering the room. We read the record to show only that the Commonwealth conceded there was an investigatory detention, not that it occurred the moment the officer entered the room.

2 See also McLellan v. Commonwealth, 37 Va. App. 144, 151, 554 S.E.2d 699, 702 (2001); Commonwealth v. Satchell, 15 Va. App. 127, 131, 422 S.E.2d 412, 415 (1992).

3 In addition, “an officer need not suspect an individual of a particular crime in order to justify a Terry stop.” Alston v. Commonwealth, 40 Va. App. 728, 738, 581 S.E.2d 245, 250 (2003) (citation omitted). “A general suspicion of some criminal activity is enough,” id., to satisfy the reasonable suspicion standard.

4 See, e.g., State v. Schneider, 389 N.W.2d 604, 605 (N.D. 1986); Cobbs, 711 P.2d at 907; People v. Moore, 295 N.E.2d 780, 783-84 (N.Y. 1973); State v. Lackey, 444 N.E.2d 1047, 1049 n.2 (Ohio Ct. App. 1981) (holding “it is not necessary that the officer know as a matter of fact that the accosted individual is ‘presently dangerous’ independently of the belief that he has a weapon on his person or ready at hand”).

5 Although we are not bound by concessions of law, see Epps v. Commonwealth, 47 Va. App. 687, 703, 626 S.E.2d 912, 919 (2006) (en banc), the Commonwealth conceded at the suppression hearing that the encounter constituted an investigative detention.

 

[Grapeshot]

Out of all of this I take one particular reference as most disconcerting:

On appeal, the facts developed in the trial court must be reviewed “in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” Kyer, 45 Va. App. at 477, 612 S.E.2d at 215

Still there is that pesky term "reasonable."

 

[peter nap]

Still there is that pesky term "reasonable."

That does seem like a splinter in a sock Grapeshot. It keeps popping up to cause problems.

 

[user]

Theoretically, there is a definition for "reasonable", which is basically anything that can be comprehended by reason, i.e., rational; as opposed to irrational or nonrational, such as facts that could only have been adduced if the Abdominal Snowman had been ordered by aliens from Alpha Centauri to conduct a protest without a permit on the federal Mall promoting the rights of "undocumented aliens". Same thing applies when the word appears in a contract. E.g., in my divorce, I had custody, subject to the former spousal unit's right to take the kids for visitation which "shall not be unreasonably denied". All that meant was, that if I denied her, I had to have a reason. It didn't have to be a good[/i] reason.

It's a pretty squishy concept, but means "to the limits of human reason".

By the way, I don't think I've given my practical legal advice on this subject, just academic stuff. My advice is, whenever a cop wants you to tell him who you are and where you live, do so. If he wants to know what you're up to, it would be sufficient to say that you're headed to wherever, or that you're communing with nature, meditating, or observing human behavior. You don't have to get chatty, and if he insists on engaging you in conversation, it's ok to say, "Thanks, Officer/Deputy, but I don't feel chatty this evening. Perhaps you'd like to buy me lunch one day next week, and we can sit down and chew the fat together." or some such thing as that. If he gets really insistent, ask whether you're free to leave. If the answer is, "no", say, "I want my lawyer" and after that, KYBMS ("keep your big mouth shut"). As a practical matter, not telling the cop who you are and where you live when asked will look fishy to a judge and/or jury, it's kind of silly at best, and serves as a basis for further harassment. Although they have to have reasonable suspicion to detain you at all, if you choose to stay where you are (you could just walk away), not telling them who you are when asked in a consensual interrogation will contribute to reasonable suspicion on the "why, what have you got to hide?" theory.

 

[wylde007]

Uhh... the "abdominal" snowman? :lol:

(Abominable)

 

[wrightme]

Uhh... the "abdominal" snowman? :lol:

(Abominable)

(that snowman does many many situps.....)

 

[user]

Hey, it's my dream... my snowman does belly flops; besides, there ain't no abominable snowman, except in that Rudolph the Reindeer movie; and, what about "Quinn the Eskimo"? Speaking of which, all the people I've represented who would go by the title, "snowman" have been somewhat abominable. The sort of people who think that, if they lie to me, they're going to get better representation. I guess if they'd'a had brains they wouldn't have gotten caught selling "snow".

 

[nuc65]

Appreciate it User - lots of good info all there in one place.

Only problem I have is all of the right and left cursor moving to read each line.
We're going to have to chip in and get you Micosoft Office or similar so you can put this in a more "user friendly" format :lol:

Ya, I know I b!tch about the freebies too.

You could always get him Open Office, Word compatible, free and much better, even has templates.

 

[Thundar]

There is none in "Virginia" which means that independent localities/municipalities may adopt ordinances.

Virginia Beach, Norfolk and Newport News have them. You are required to IDENTIFY (not "provide identification") to a uniformed officer or an individual whom you would reasonably believe (undercover) to be an officer of law upon request.

I agree that Virginia Beach and Norfolk have such laws (and Chesapeake does as well) but I can find no such law in Newport News. Can you provide a cite or link for Newport News. This is important to me as I OC in Newport News almost every day.

 

[user]

I agree that Virginia Beach and Norfolk have such laws (and Chesapeake does as well) but I can find no such law in Newport News. Can you provide a cite or link for Newport News. This is important to me as I OC in Newport News almost every day.

That's because there isn't one. Check again if you like:

http://library.municode.com/index.aspx?clientId=14013&stateId=46&stateName=Virginia

Btw, what Wylde007 said - "There is none in "Virginia" which means that independent localities/municipalities may adopt ordinances." - isn't entirely correct. There has to be a grant of power by charter or general law in order to authorize a city or county to do anything. There are no "independent localities/municipalities" in Virginia; each and every municipal corporation is subordinate to the Commonwealth.

 

[wylde007]

Virginia Beach (note the wording):

http://library.municode.com/HTML/10...IMIOF.html#CO_CH23OF_ARTIMIOF_S23-7.1PRIDPOOF

Chesapeake (same wording):

http://library.municode.com/HTML/10...R_CH46OFMIPR_ARTVIIOFAGPUOF_S46-209PRIDLAENOF

I cannot find a similar ordinance for Newport News, Hampton or Poquoson. My apologies, and that portion of my response is withdrawn.

 

[Grapeshot]

Virginia Beach (note the wording):

http://library.municode.com/HTML/10...IMIOF.html#CO_CH23OF_ARTIMIOF_S23-7.1PRIDPOOF

Chesapeake (same wording):

http://library.municode.com/HTML/10...R_CH46OFMIPR_ARTVIIOFAGPUOF_S46-209PRIDLAENOF

I cannot find a similar ordinance for Newport News, Hampton or Poquoson. My apologies, and that portion of my response is withdrawn.

Virginia Beach:
Sec. 23-7.1. - Providing identification to police officer.

It shall be unlawful and a Class 1 misdemeanor for any person at a public place or place open to the public to refuse to identify himself by name and address at the request of a uniformed police officer or of a properly identified police officer not in uniform, or to provide false information in response to such a request, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.

Chesapeake:
Sec. 46-209. - Providing identification to law enforcement officers.

It shall be unlawful and a class 1 misdemeanor for any person to refuse to identify himself by name at the request of a law enforcement officer, or to provide false information in response to such request, if the surrounding circumstances are such that the officer has a reasonable suspicion that the person has committed, is committing or is about to commit a crime. This ordinance shall take effect immediately upon its adoption.

Not exactly the same wording, but similar in design.
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