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Silver v. Commonwealth

Court of Appeals of Virginia

August 4, 1998

VERNON OTIS SILVER
v.
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.

Present: Judges Coleman, Bray and Bumgardner.

MEMORANDUM OPINION [*]

RICHARD S. BRAY, JUDGE

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 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, 134 L.Ed.2d 911, 116 S.Ct. 1657 (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, " " knocking 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 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 ...

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