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.

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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

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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

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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)

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(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.