Preview:

Present:    Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, S.J.
LEON THOMAS HARRIS
v.    Record No.  022168                                          OPINION BY JUSTICE ELIZABETH B. LACY
                                                                  June  6,  2003
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether Leon Thomas Harris
was illegally detained by police and whether evidence obtained
in a search of his truck should have been suppressed because
it was obtained as a result of the illegal detention.
FACTS
On May  25,  2000, at approximately  4:00 a.m., Officer
Blaine Davis initiated a traffic stop based on a broken
license plate light he observed on a truck.    Harris, the
driver, and a single passenger were in the truck.    Shortly
after Officer Davis stopped the truck, a second police officer
arrived on the scene.    Both police vehicles were marked cars,
and their flashing lights were activated.
Officer Davis asked Harris for his driver's license and
vehicle registration, but Harris produced only his social
security card.    Harris told Officer Davis that he knew he had
been stopped because he had no license plate light.    Officer
Davis told Harris to get out of the truck.    While they were
standing outside of the truck, Officer Davis asked Harris




questions to confirm Harris' identity.    After confirming
Harris' identity and, using a hand-held radio, verifying that
Harris had a valid driver's license with the Virginia
Department of Motor Vehicles, Officer Davis returned the
social security card to Harris.    He did not charge Harris with
a traffic offense.
The officer then asked Harris if he had anything illegal
in the truck or on his person.    Harris replied that he did
not.    When Officer Davis asked Harris if he could search the
truck, Harris consented.    Officer Davis performed a pat down
search on Harris and, after finding no weapons, told Harris to
sit in the front passenger seat of Officer Davis' patrol car.
The passenger in the truck was told to get out of the vehicle.
The passenger complied and stood beside the passenger side of
Officer Davis' vehicle.
Officer Davis testified that during this time he had no
reasonable articulable suspicion that either Harris or his
passenger "had done anything illegal" and that Harris was free
to go.    However, Officer Davis did not tell either Harris or
his passenger that they were free to go.
Officer Davis found several stolen items when he searched
the vehicle.    Harris was subsequently charged with two counts
of grand larceny.
2




Prior to his trial, Harris filed a motion to suppress all
evidence seized during the search of his truck, maintaining
that the search and seizure violated his rights under the
Fourth and Fourteenth Amendments of the United States
Constitution and under Article I,  §  10 of the Constitution of
Virginia.    The trial judge denied Harris' motion, finding that
the stop was a "Terry-stop with a consent to search."
Following a bench trial, Harris was convicted of two counts of
petit larceny and sentenced to twelve months in jail on each
count, with eleven months suspended, and the sentences to run
concurrently.
The Court of Appeals affirmed the convictions, finding
that the officer returned Harris' social security card,
terminating the original traffic stop, the continuing
encounter was a consensual encounter, and that Harris'
subsequent consent to the search was voluntary.    The Court of
Appeals also concluded that the evidence was sufficient to
support the convictions.    See Harris v. Commonwealth,  38 Va.
App.  680,  568 S.E.2d  385  (2002).    We granted Harris an appeal
limited to the issues concerning whether Harris was illegally
detained and whether the evidence obtained in the search of
Harris' truck should have been suppressed.
THE DETENTION
3




Harris does not challenge the legality of the initial
traffic stop.    He contends that Officer Davis violated his
Fourth Amendment rights when the officer extended a lawful
detention for a traffic infraction into an unlawful, non-
consensual seizure.    Harris further contends that his consent
to the search was not voluntary and, therefore, the evidence
obtained as a result of his illegal seizure must be
suppressed.
The Fourth Amendment protects persons from unreasonable
searches and seizures.    U.S. Const. amend. IV.    Police
officers do not violate the Fourth Amendment when they stop
and question an individual if they have reasonable articulable
suspicion that the person is engaged in criminal activity,
Terry v. Ohio,  392 U.S.  1,  30  (1968), or when the person's
encounter with the police is consensual.    Florida v. Bostick,
501 U.S.  429,  437  (1991); Florida v. Royer,  460 U.S.  491,  501
(1983).    There is no "litmus test" for determining whether an
encounter is consensual or constitutes an illegal seizure.
Id. at  506.    If, however, a reasonable person would not feel
free to decline an officer's requests or would not feel free
to leave, the encounter is not consensual and constitutes an
illegal seizure under the Fourth Amendment.    United States v.
Mendenhall,  446 U.S.  544,  558-59  (1980).
4




Various factors have been identified as relevant in
determining whether a seizure has occurred, 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.    See Ohio v. Robinette,  519 U.S.  33,  36  (1996);
Royer,  460 U.S. at  504; Mendenhall,  446 U.S. at  554.    The
decision whether the encounter was consensual must be made
based on the totality of the circumstances.    Mendenhall,  446
U.S. at  554.
On appeal, we apply a de novo standard of review in
determining whether a person has been seized in violation of
the Fourth Amendment.    McCain v. Commonwealth,  261 Va.  483,
489,  545 S.E.2d  541,  545  (2001).    However, we also must review
findings of historical fact for clear error and give due
weight to inferences drawn from those facts.    Ornelas v.
United States,  517 U.S.  690,  699  (1996); Reittinger v.
Commonwealth,  260 Va.  232,  236,  532 S.E.2d  25,  27  (2000).
In this case, when Harris was stopped initially, he told
Officer Davis that he knew his license plate light was not
working.    Harris also knew that, when asked for his driver's
license and vehicle registration card, he handed Officer Davis
5




only his social security card.    Although Officer Davis, after
returning Harris' social security card, considered Harris free
to go, he did not tell Harris that he could leave.
Furthermore, Officer Davis testified that he did not suspect
Harris of any other criminal activity when he asked Harris for
consent to search the truck.
The traffic stop was concluded when Officer Davis
returned the social security card to Harris and, as stated by
the Court of Appeals, "the detention supported by reasonable
articulable suspicion ended."    Harris,  38 Va. App. at  687,  568
S.E.2d at  388.    Thus, lawful continuation of the encounter
between Harris and Officer Davis required that it proceed on a
consensual basis.    The Court of Appeals found that the ensuing
encounter was consensual because there was no indication that
Harris was restrained.    Id. at  688,  568 S.E.2d at  389.    We
disagree.
At the time Harris was questioned about possession of
illegal goods, he had not been told that he was free to leave
or that Officer Davis was not going to charge him with a
traffic violation.    The failure to affirmatively inform Harris
that he was free to leave does not by itself require a finding
that the ensuing encounter was non-consensual.    Robinette,  519
at  39-40.    But in this case Harris knew he had committed a
traffic violation and knew he had not complied with the
6




officer's request for his driver's license and vehicle
registration.    The officer did nothing to indicate to Harris
that he was no longer subject to detention for a traffic
violation.    Additionally, Harris remained in the presence of
two armed, uniformed police officers and two patrol vehicles
with activated flashing lights.
Under these circumstances, we believe that a reasonable
person would not have known that the investigation of the
traffic offense had terminated and, thus, would not have felt
free to disregard the officer's questions or have felt free to
leave.    Therefore, when Officer Davis began questioning Harris
about possession of contraband, the encounter was not
consensual and Harris was seized for purposes of the Fourth
Amendment.    Because Officer Davis had neither a warrant nor
reasonable suspicion to believe that Harris was engaged in any
criminal activity, this seizure violated Harris's Fourth
Amendment rights.
SUPPRESSION OF EVIDENCE
Harris maintains that because the evidence obtained in
the search of his vehicle was obtained as a result of a
violation of his Fourth Amendment rights, it should have been
suppressed under the "fruit of the poisonous tree" doctrine.
That doctrine, initially discussed in Wong Sun v. United
States,  371 U.S.  471,  487-88  (1963), provides that "statements
7




given during a period of illegal detention are inadmissible
even though voluntarily given if they are the product of the
illegal detention and not the result of an independent act of
free will."    Royer,  460 U.S. at  501.
In this case, both the trial court and the Court of
Appeals found that Harris' consent to search was voluntary.
The validity of this finding is suspect, however, because both
courts considered Harris' consent to have taken place during a
legal encounter between Officer Davis and Harris.*
Nevertheless, as stated above, voluntariness alone is not
sufficient to overcome the taint arising from the unlawful
seizure.    Evidence obtained in the search of Harris' truck is
admissible only if it is not the product of an illegal seizure
and is the result of an independent act of free will.
Here, the consent to search occurred within minutes of
the illegal detention and under circumstances in which Harris
was not free to leave or disregard the officer's inquiry.    The
consent, search, and evidence recovered were the products of
an illegal detention.    Furthermore, nothing on this record
indicates that the evidence in issue was obtained by the
police pursuant to an independent act of free will.    See Hart
* The trial court considered the consent to search part of
a lawful "Terry-stop."    The Court of Appeals held that the
consent to search was part of a consensual encounter.
8




v. Commonwealth,  221 Va.  283,  289,  269 S.E.2d  806,  810  (1980).
But see Reese v. Commonwealth,  220 Va.  1035,  1040,  265 S.E.2d
746,  749  (1980).
The Commonwealth has the burden to establish that Harris'
consent to search was not "obtained by exploitation of the
illegal action."    Hart,  221 Va. at  288,  269 S.E.2d at  809.
Based on this record, we conclude that the Commonwealth failed
to meet this burden.    Thus, the evidence obtained as a result
of the illegal seizure should have been suppressed as the
"fruit" of an illegal seizure.    Accordingly, we will reverse
the judgment of the Court of Appeals, vacate Harris'
conviction, and remand the case to the Court of Appeals with
direction that the case be remanded to the trial court for
further proceedings if the Commonwealth be so advised.
Reversed and remanded.
JUSTICE KINSER, with whom SENIOR JUSTICE CARRICO joins,
dissenting.
Unlike the majority, I conclude that the encounter that
ensued between Officer Blaine Davis and the defendant, Leon
Thomas Harris, after Officer Davis returned the social
security card to Harris was consensual because a reasonable
person in those circumstances would have felt free to leave
and to refuse Officer Davis’ request to search the vehicle. I
9




further conclude that Harris voluntarily consented to the
search.    Thus, I respectfully dissent.
“Law enforcement officers do not violate the Fourth
Amendment’s prohibition of unreasonable seizures merely by
approaching individuals on the street or in other public
places and putting questions to them if they are willing to
listen.”    United States v. Drayton,  536 U.S.  194,  200  (2002).
Even when a law enforcement officer has no basis to suspect
that a particular individual is engaged in criminal activity,
the officer  “may pose questions, ask for identification, and
request consent to search  .  .  . provided  [the officer does]
not induce cooperation by coercive means.”    Id. at  201.            “[T]o
determine whether a particular encounter constitutes a
seizure, a court must consider all the circumstances
surrounding the encounter to determine whether the police
conduct would have communicated to a reasonable person that
the person was not free to decline the officers’ requests or
otherwise terminate the encounter.”    Florida v. Bostick,  501
U.S.  429,  439  (1991).                                              “If a reasonable person would feel free
to terminate the encounter, then he or she has not been
seized.”    Drayton,  536 U.S at  201.    The  “reasonable person”
test is objective and  “presupposes an innocent person.”
Bostick,  501 U.S. at  437-38.
10




When determining whether a reasonable person would feel
free to terminate an encounter, a court may consider the
language and tone of voice used by the police officer, whether
the officer displayed a weapon, and whether there was physical
contact between the officer and the individual.    United States
v. Mendenhall,  446 U.S.  544,  554  (1980); see also, Bolden v.
Commonwealth  263 Va.  465,  471,  561 S.E.2d  701,  704  (2002).
Other relevant factors include the number of officers present,
the location, time and duration of the encounter, United
States v. Lattimore,  87 F.3d  647,  650  (4th Cir.  1996), and
whether the police officer retained the individual’s
identification or personal property, United States v. Weaver,
282 F.3d  302,  310  (4th Cir.  2002), cert. denied,  ___ U.S.  ___,
123 S.Ct.  186  (2002).
In Reittinger v. Commonwealth,  260 Va.  232,  532 S.E.2d  25
(2000), this Court considered whether a defendant was
unlawfully seized following a routine traffic stop.    A deputy
sheriff stopped a van being operated by Reittinger because the
van had  “  ‘only one operable headlight.’  ”    Id. at  234,  532
S.E.2d at  26.    After Reittinger displayed a new headlight that
he planned to install on the van, the deputy issued only a
verbal warning and told Reittinger that he was  “  ‘free to
go.’  ”    Id.    The deputy then asked Reittinger if he had any
illegal weapons or drugs in the vehicle.    Id.    When Reittinger
11




replied that he did not, the deputy asked to search the van
and repeated the request twice more while Reittinger consulted
with the passengers in the vehicle.    Id.    Reittinger never
answered the deputy’s repeated requests to search but simply
exited the vehicle.    Id. During a subsequent  “pat down” search
of Reittinger, the deputy found a smoking pipe containing
marijuana residue.    Id.
In considering the circumstances of the encounter, we
noted that Reittinger had been stopped in a rural area in the
nighttime, was in the presence of two armed deputies, and was
asked repeatedly for consent to search the vehicle.    Id. at
236-37,  532 S.E.2d at  27.    We determined that, in those
circumstances, a reasonable person would not have felt  “free
to disregard the deputies and simply drive away.”    Id. at  237,
532 S.E.2d at  28.
In the present case, the majority notes that, although
Officer Davis returned Harris’ social security card, he did
not inform Harris that he was free to leave or state whether
he would be charged with a traffic offense.    Further noting
that Harris was in the presence of two armed police officers
and two patrol vehicles with activated flashing lights, the
majority concludes that a reasonable person would not have
felt free to terminate the encounter.    I disagree.
12




In my view, the majority ignores several important
factors that demonstrate that Harris was not seized after the
traffic stop ended.    The encounter between Harris and Officer
Davis occurred at  4:00 a.m.    Thus, the flashing lights on the
patrol cars served an important safety function, i.e., they
alerted other drivers to the presence of vehicles and people
along the roadside.    The encounter here, unlike that in
Reittinger, took place in  “a built-up commercial area.”
Although two officers were present, that fact is not
dispositive.    See Drayton,  536 U.S. at  205  (presence of second
officer at front of bus did not  “tip the scale in respondents’
favor”); Immigration & Naturalization Service v. Delgado,  466
U.S.  210,  219  (1984)  (no seizure even though several uniformed
INS agents were positioned near exits of factory).    In this
case, the second officer’s participation in the encounter was
limited to  “watching” the passenger.    Further, there is no
evidence that either officer brandished his weapon, physically
touched Harris, or used a tone of voice or language indicating
that Harris was not free to leave or that compliance with the
request to search was compelled.
Instead, Officer Davis returned Harris’ social security
card to him after verifying that Harris had provided accurate
information about his identity and had a valid driver’s
license.    Only then did Officer Davis ask Harris whether he
13




had anything illegal in the vehicle or on his person.    See
Lattimore,  87 F.3d at  653.    Finally, in my view, the most
important distinction between this case and Reittinger is the
fact that Harris, unlike Reittinger, was asked only once for
permission to search his vehicle and that he expressly
consented in response to that single request.    See United
States v. Hernandez,  93 F.3d  1493,  1499  (10th Cir.  1996)
(“  ‘accusatory, persistent, and intrusive’ questioning may
turn an otherwise voluntary encounter into a coercive one if
it conveys the message that compliance is required”)  (quoting
United States v. Little,  60 F.3d  708,  712  (10th Cir.  1995)).
Thus, I conclude that Harris was not unlawfully seized in
violation of the Fourth Amendment.
I must now determine whether Harris’ consent to search
was valid.                                                            “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,  519 U.S.  33,  40  (1996)
(quoting Schneckloth v. Bustamonte,  412 U.S.  218,  248-49
(1973)).    Where, as here,  “the question of voluntariness
pervades both the search and seizure inquiries, the respective
analyses turn on very similar facts.”    Drayton,  536 U.S. at
206.
14




The evidence shows that Harris expressly consented to the
search of his truck.    All the circumstances demonstrating that
the encounter between Harris and Officer Davis was consensual
also establish that Harris’s consent to search was voluntarily
given.    The only additional step Officer Davis could have
taken to ensure that Harris’ consent was voluntary would have
been to inform Harris of his right to refuse the request to
search the vehicle.    However,  “ '[w]hile knowledge of the
right to refuse consent is one factor to be taken into
account, the government need not establish such knowledge as
the sine qua non of an effective consent.’  ”    Robinette,  519
U.S. at  39  (quoting Schneckloth,  412 U.S. at  227).
Based on the totality of the circumstances, I conclude
that Harris’ consent to search was voluntary.    Therefore, the
search did not violate the Fourth Amendment.    Other courts
have found that consents to search given in similar
circumstances were voluntary.    E.g., United States v. Erwin,
155 F.3d  818,  823  (6th Cir.  1998)  (finding consent to search
given following lawful traffic stop was voluntary where
evidence showed that deputies did not show force or use
threatening language); State v. Ready,  565 N.W.2d  728,  733
(Neb.  1997)  (finding that the totality of the circumstances
established defendant’s consent was voluntary where evidence
showed that he agreed to let the officer search his vehicle
15




and no evidence of coercion was presented); Burgos-Seberos v.
State,  969 P.2d  1131,  1135  (Wyo.  1998)  (finding that the trial
court did not abuse its discretion by denying motion to
suppress where evidence showed defendant  “voluntarily
grant[ed] his permission for  [the officer] to search his car”
and there was no evidence of coercion although  “two officers
were present and the hour was late”).
For these reasons, I respectfully dissent and would
affirm the judgment of the Court of Appeals of Virginia.
16

Download 1022168.pdf

Virginia Law