Westley Lee Hayes v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
WESTLEY LEE HAYES
MEMORANDUM OPINION* BY
v. 	Record No. 1210-99-3 	JUDGE JERE M. H. WILLIS, JR.
APRIL 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
S. Jane Chittom, Appellate Counsel (Elwood
Earl Sanders, Jr.; Public Defender
Commission, on briefs), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction of possession of a firearm
while in possession of cocaine, in violation of Code
§ 18.2-308.4; possession of cocaine with the intent to
distribute, in violation of Code § 18.2-248; possession of a
firearm by a previously convicted felon, in violation of Code
§ 18.2-308.2; and carrying a concealed weapon, in violation of
Code § 18.2-308, Westley Lee Hayes contends that the trial court
erred in denying his motion to suppress. 	We affirm the judgment
of the trial court.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

In reviewing a trial court's denial of
a motion to suppress, "[t]he burden is upon
[the defendant] to show that th[e] ruling,
when the evidence is considered most
favorably to the Commonwealth, constituted
reversible error." 	"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 them
. . . . 	We analyze a trial [court'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 v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc) (citations omitted).
On October 31, 1998, Danville Police Officer David Austin
was ordered to investigate neighbor complaints about drug sales
occurring on Short Street. 	When he arrived at the address, he
saw a large group of people standing in the yard of Hayes'
sister's home. 	As Officer Austin exited his police cruiser, the
group began dispersing. 	Officer Austin, noticing Hayes pouring
something out of a bottle, walked up to Hayes to get a closer
look.
Officer Austin asked Hayes to "hold up," and then asked
what was in the bottle. 	Hayes admitted it was beer, handed the
bottle to Officer Austin, and then "turned to the side and put
his hands up under the front of his coat . . . with his back
slightly turned to [the officer]." 	Officer Austin asked Hayes
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to remove his hands from his coat. 	When Hayes did not, Officer
Austin asked whether Hayes was carrying a gun or other weapon.
Hayes lifted the front of his coat toward Officer Austin,
exposing a gun tucked into the front waistband of his pants.
When Hayes admitted that he did not have a concealed weapon
permit, Officer Austin placed him under arrest for carrying a
concealed weapon and for possession of an open alcohol
container. 	Officer Austin handcuffed Hayes and searched him,
finding fifty-one rocks of crack cocaine in Hayes' socks.
The trial court denied Hayes' motion to suppress the
evidence found on his person and convicted him of possession of
a firearm while possessing cocaine, in violation of Code
§ 18.2-308.4, possession of cocaine with the intent to
distribute, in violation of Code § 18.2-248, possession of a
firearm by a previously convicted felon, in violation of Code
§ 18.2-308.2, and carrying a concealed weapon, in violation of
Code § 18.2-308.
Hayes contends that his motion to suppress should have been
granted, because the evidence was discovered as the result of an
unlawful seizure of his person.
Hayes relies on Knowles v. Iowa, 525 U.S. 113 (1998). 	In
Knowles, the United States Supreme Court reversed a conviction
based upon evidence seized during a traffic stop. 	The state
defended the search as a reasonable "search incident to a
summons," equating it to a search incident to arrest. 	The
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Supreme Court held that a non-custodial arrest, wherein the
accused is released on a summons, does not justify an incidental
search as an exception to the Fourth Amendment warrant
requirement. 	See Knowles, 525 U.S. at 118-19. 	Hayes argues
that drinking in public is a Class 4 misdemeanor, not supporting
an incidental search. 	Hayes, however, misstates the chronology
of events.
Officer Austin arrested Hayes after seeing his concealed
weapon. 	If that arrest was lawful, the subsequent search, in
which Officer Austin found the cocaine, was a search incident to
a custodial arrest, an exception to the warrant requirement.
See United States v. Robinson, 414 U.S. 218, 235-36 (1973);
Hayes v. Commonwealth, 29 Va. App. 647, 656, 514 S.E.2d 357, 361
(1999). 	Thus, the issue in this case is whether Officer
Austin's initial encounter with Hayes was consensual, rather
than an unlawful seizure.
The trial court ruled:
I think the fact that the officer saw the
defendant pouring something from a bottle in
the front yard, he walked over to him, the
defendant told him it was a beer and that he
was pouring it out. 	He handed the bottle to
the officer and then the defendant reached
up and pulled his coat up. 	The Officer saw
the weapon and then he was, thereafter,
arrested for having an open bottle and
carrying a concealed weapon. 	He was then
searched and that's when the drugs were
found on him. 	I don't think there's a
Fourth Amendment violation here. 	The Motion
to Suppress will be overruled.
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"Whether a seizure occurs must be determined by evaluating
the facts of each case to determine whether the manner in which
the police identified the individual as a suspect conveys to the
person that he or she is a suspect and is not free to leave."
McGee, 25 Va. App. at 200-01, 487 S.E.2d at 262-63. 	The seizure
in McGee and in similar cases occurred not merely because the
police approached a citizen, but rather because the police
informed the citizen specifically that he was under suspicion of
criminal activity, thus giving rise to a reasonable apprehension
of restraint. 	See McGee, 25 Va. App. at 201, 487 S.E.2d at 263.
At no time until Hayes voluntarily exposed the gun did Officer
Austin tell Hayes that he was suspected of illegal activity.
Hayes relies upon Parker v. Commonwealth, 255 Va. 96, 496
S.E.2d 47 (1998). 	In Parker, a police cruiser followed Parker
as he attempted to walk away from a suspicious activity. 	The
cruiser followed him into a housing project, where an officer,
in uniform and with weapons clearly visible, detained him. 	The
Virginia Supreme Court held that such a display of authority
clearly constituted a restraint of liberty. 	See id. at 103, 496
S.E.2d at 51.
Parker and McGee are distinguishable from this case.
Officer Austin's display of authority more resembles the
officer's conduct in Baldwin v. Commonwealth, 243 Va. 191, 413
S.E.2d 645 (1992). 	Officer Austin parked his vehicle on the
street, exited the vehicle, and walked into the open yard to
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speak with Hayes. 	Officer Austin did not curtail Hayes' liberty
until Hayes voluntarily revealed the weapon. 	At that point,
Officer Austin lawfully placed Hayes under arrest. 	Only
incident to that arrest did Officer Austin search Hayes and
discover the cocaine.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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Benton, J., dissenting.
The evidence proved that the police officer saw several
people in the front yard of a private residence. 	When the
officer walked onto the yard, he saw Westley Lee Hayes holding a
bottle. 	As the officer approached, Hayes began pouring liquid
from the bottle and walked away from the officer. 	The officer
told Hayes to "hold up," walked next to Hayes, and asked Hayes
what he was pouring. 	When Hayes responded "beer," the officer
asked for the bottle.
These facts prove a seizure because they establish that "a
reasonable person would have believed he was not free to leave."
United States v. Mendenhall, 446 U.S. 544, 554 (1980). 	When the
officer went onto the private property, told Hayes to "hold up"
as Hayes walked away from him, and then asked Hayes for the beer
bottle, the officer was acting under his badge of authority to
effect a detention for what he perceived to be a violation of
the law. 	See Parker v. Commonwealth, 255 Va. 96, 103, 496
S.E.2d 47, 51 (1998) (holding that a police officer, who drives
onto private property to pursue an individual and then
encounters that person, has exercised his authority to restrain
the liberty of that individual). 	As the Supreme Court noted in
Parker, its decision in "Baldwin [v. Commonwealth, 243 Va. 191,
195, 413 S.E.2d 645, 647 (1992),] is readily distinguishable
[from these circumstances] and is limited to its unique facts."
Parker, 255 Va. at 103, 496 S.E.2d at 51. 	Significantly, the
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facts in Baldwin did not establish that Baldwin was walking away
to avoid the officer when the officer called to him. 	See 243
Va. at 194, 413 S.E.2d at 647. 	The evidence proved that Baldwin
was going toward a residence when the officer entered the
parking lot. 	Id. at 194, 413 S.E.2d at 646.
The seizure was unlawful because the officer had no
reasonable basis to detain Hayes. 	The officer wrongfully
believed that Hayes was violating a local ordinance, which only
prohibited "possession of an opened alcoholic beverage container
in any public park, playground, or street." 	City of Danville,
Ordinance No. 98-11.15 (or City of Danville Code § 23-12.1).
Hayes was in the yard of a private residence; therefore, his
conduct did not violate the ordinance. 	An officer's detention
of an individual based on a mistaken view that he or she has
witnessed a violation of law is not objectively reasonable and,
therefore, is unlawful. 	See United States v. Lopez-Valdez, 178
F.3d 282, 288-89 (5th Cir. 1999) (holding that an officer's
detention of the accused for what the officer mistakenly
believed was a violation of the Code was unreasonable).
Because the detention was unlawful, the cocaine that the
officer discovered should have been suppressed. 	See McGee v.
Commonwealth, 25 Va. App. 193, 203-04, 487 S.E.2d 259, 264
(1997) (en banc). 	For these reasons, I would hold that the
trial judge erred in failing to suppress the evidence. 	I
dissent.
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