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COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia
ANTOINE EUGENE RIDLEY
Record No. 2311-02-1
MEMORANDUM OPINION * BY
JUDGE ROBERT J. HUMPHREYS
JULY 15, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
William P. Robinson, Jr. (Robinson, Neeley &
Anderson, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Antoine Eugene Ridley appeals his conviction, upon a
conditional plea of guilty, for possession of heroin, possession
of cocaine with intent to distribute, and assault.
contends the trial court erred in finding police possessed the
requisite reasonable suspicion to support his detention and
For the reasons that follow, we affirm the
judgment of the trial court.
In accordance with settled principles of appellate review,
on appeal of a trial court's denial of a motion to suppress, we
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
review the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible from it.
Sabo v. Commonwealth, 38 Va. App. 63, 69,
561 S.E.2d 761, 764 (2002).
On or about October 29, 1999, 1 at approximately 6:20 p.m.,
Officer Mark Daniel Laino, of the Norfolk Police Department, was
driving his marked patrol car "in the 7100 block of Sewells
Point when [he] was flagged down by a citizen on the side of the
The citizen informed Officer Laino that "there was a
black male wearing a black nylon jogging suit," "in the 7100
block of Sewells Point in the Johnson Square Apartment Complex,"
"selling narcotics in the parking lot."
Officer Laino and the
citizen were approximately 500-1,000 yards from the Johnson
Square apartments at that time, and did not have a view of the
parking lot from their location.
Based upon the information provided by the citizen, Officer
Laino drove to the apartment complex and "pull[ed] into the
He immediately observed "an individual fitting
the description exactly standing [sic] right in the middle of
the parking lot of the 7100 block of Sewells Point Road.
wasn't anybody else around him at that time."
was later determined to be Ridley.
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Officer Laino "pulled [his] police car into the middle of
the lot," and Ridley walked past him.
Ridley then "turned
around from [Laino] and he started walking the other way."
Officer Laino asked Ridley if he lived in the apartment complex
and Ridley replied, "No, no.
I'm just cutting through."
Officer Laino then stated, "well, you're trespassing.
not supposed to be in here."
Ridley again stated that he was
"just cutting through," and walked back toward Officer Laino.
At that time, Officer Laino got out of his patrol car and
asked Ridley where he lived.
Ridley told him he lived on
This statement "drew" Laino's suspicion because
the apartment complex was a "gated community."
were holes in some of the gates, Officer Laino knew that "[i]t
wouldn't make sense to go from Cutrell Street to cut through
that area to go somewhere."
Officer Laino then asked Ridley to remove his hands from
his pockets, and Ridley complied.
Laino asked Ridley if he had
"any guns, knives, drugs or anything like that on [him]," and
Ridley stated, "[N]o."
Nevertheless, Officer Laino asked, "[D]o
you mind if I pat you down?"
Ridley then walked to the hood of
Laino's police car and placed his hands on the car.
When Officer Laino began "patting him
We note that the warrants designate the date of the
offense as October 29, 1999. However, one of the corresponding
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down," Ridley removed one of his hands from the car.
asked him to put his hand back on the car.
Ridley said, "[O]h,
I'm, [sic] sorry," "I didn't mean anything by it," and put his
hand back on the car.
Officer Laino then continued "patting
A few moments later, Ridley removed his hand from the car
Officer Laino said, "[S]ir, keep your hand on the
Ridley again apologized and placed his hand back
on the car.
When Officer Laino continued the pat-down, he
"moved [Ridley's] feet back a little bit further to get his feet
At that point, Ridley "pushed off the car, swung
around and took a swing at [Laino]."
Laino moved to "miss the
punch" and "grabbed [Ridley's] jacket."
Ridley tried to "wiggle
his way out of the jacket," and eventually "broke free from
[Laino's] grasp" and began running.
Officer Laino chased
Ridley, stopped him, and "wrestled him down to the ground."
Laino then called for assistance.
While Officer Laino was waiting for assistance, Ridley
continued to struggle, striking Laino in the "chestplate area"
When another officer arrived, the two officers
were able to handcuff Ridley and place him in custody.
Upon a search of Ridley's person, incident to arrest,
Officer Laino recovered a "plastic like wax paper" containing
indictments designates the date of the offense as October 30,
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"powder material which was suspected heroin," a "rock like
substance suspected to be crack cocaine," and "a large quantity
of [U.S.] currency."
Prior to his trial on charges of possession of heroin,
possession of cocaine with intent to distribute, and assault,
Ridley moved to suppress the evidence against him.
contended the "interrogation and search" "was unreasonable and
in violation of the 4th, 5th and 6th Amendments to the United
During the hearing on the motion, Officer Laino testified
to the events set forth above.
He further testified that, at
the time of the incident, he knew the area to be a "high-crime
area, a high-drug area."
After hearing the evidence and
considering arguments of counsel, the trial court overruled the
motion to suppress. 2
Ridley subsequently pled guilty to the
charges at issue, conditioned upon the preservation of his right
The trial court sentenced Ridley to eight years and
six months in prison, with two years suspended upon certain
On appeal, Ridley contends the trial court erred in denying
his motion to suppress.
Ridley argues that the "detention and
search" violated the Fourth and Fourteenth Amendments to the
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United States Constitution because "said detention and search
were predicated entirely upon a tip from an unknown citizen."
"[U]ltimate questions of reasonable suspicion and probable
cause" involve questions of both law and fact and are reviewed
de novo on appeal.
Ornelas v. United States, 517 U.S. 690, 691
In performing this analysis, we 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.
Id. at 699.
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.
See Satchell v.
Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253, 256 (1995)
(en banc); see also Watson v. Commonwealth, 19 Va. App. 659,
663, 454 S.E.2d 358, 361 (1995).
It is well settled that the Fourth Amendment "does not
proscribe all seizures, only those that are 'unreasonable.'"
Hodnett v. Commonwealth, 32 Va. App. 684, 690, 530 S.E.2d 433,
436 (2000) (quoting Welshman v. Commonwealth, 28 Va. App. 20,
30, 502 S.E.2d 122, 126-27 (1998) (en banc)).
Well established fourth amendment
jurisprudence has placed police-citizen
The arguments of counsel were not included in the
transcript and/or the appendix on appeal.
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confrontations into three categories.
First, there are communications between
police officers and citizens that are
consensual and, therefore, do not implicate
the fourth amendment. Second, there are
brief investigatory stops which must be
based on specific and articulable facts
which, taken together with rational
inferences from these facts, reasonably
warrant a limited intrusion. Third, there
are highly intrusive, full-scale arrests,
which must be based on probable cause.
Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173
The Commonwealth contends we do not need to reach
Ridley's assertion pertaining to the legality of the detention
and search based upon the information provided by the informant,
because the detention and search here were consensual.
As stated above, the United States Supreme Court has long
held that searches made by the police pursuant to a valid
consent do not implicate the Fourth Amendment.
v. Bustamonte, 412 U.S. 218, 222 (1973); Iglesias, 7 Va. App. at
99, 372 S.E.2d at 173.
"At trial, the Commonwealth bears the
burden of proving that consent was in fact given."
Commonwealth, 37 Va. App. 299, 307, 557 S.E.2d 737, 741 (2002).
The Commonwealth must also prove that, under the totality of the
circumstances, the consent was freely and voluntarily given.
"The presence of consent is, however, a factual question."
In the case at bar, the record reflects no explicit factual
determination that the detention and search at issue were
conducted pursuant to Ridley's consent.
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Therefore, we review
the totality of the circumstances to determine whether a finding
that this was a consensual encounter is implicit in the trial
court's denial of the motion to suppress.
A consensual encounter occurs when
police officers approach persons in public
places "to ask them questions," provided "a
reasonable person would understand that he
or she could refuse to cooperate." United
States v. Wilson, 953 F.2d 116, 121 (4th
Cir. 1991) (quoting Florida v. Bostick, 501
U.S. 429, 431 (1991)); see also Richards v.
Commonwealth, 8 Va. App. 612, 615, 383
S.E.2d 268, 270 (1989). Such encounters
"need not be predicated on any suspicion of
the person's involvement in wrongdoing," and
remain consensual "as long as the citizen
voluntarily cooperates with the police."
Wilson, 953 F.2d at 121. Fourth Amendment
scrutiny is triggered, however, the moment
an encounter "'loses its consensual
nature.'" Id. (quoting [Bostick, 501 U.S.
In Wilson, the Fourth Circuit
considered "the effect of a person's
unsuccessful attempt to terminate what began
as a consensual encounter." Wilson, 953
F.2d at 121. The Court opined that a
voluntary police-citizen encounter "should
be placed in the realm of [a] Fourth
Amendment 'seizure '" when "a reasonable
person would have believed that he was not
free to leave." Id.; see also Richards, 8
Va. App. at 615, 383 S.E.2d at 270 (quoting
United States v. Mendenhall, 446 U.S. 544,
554 (1980)); Goodwin v. Commonwealth, 11
Va. App. 363, 365, 398 S.E.2d 690, 691
(1990); Moss v. Commonwealth, 7 Va. App.
305, 307, 373 S.E.2d 170, 171 (1988). The
"principle embodied by the phrase 'free to
leave' means the ability to ignore the
police and to walk away from them," to
"'feel free to decline the officers'
requests or otherwise terminate the
encounter.'" Wilson, 953 F.2d at 122
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(quoting [Bostick, 501 U.S. at 436]).
Payne v. Commonwealth, 14 Va. App. 86, 88-89, 414 S.E.2d 869, 870
"'Thus, 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
McLellan v. Commonwealth, 37 Va. App. 144, 152,
554 S.E.2d 699, 703 (2001) (quoting McCain v. Commonwealth, 261
Va. 483, 490-91, 545 S.E.2d 541, 545-46 (2001)).
The [United States] Supreme Court has
detailed examples of circumstances that may
indicate that a seizure has occurred. Such
examples include "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." Mendenhall, 446 U.S. at 554;
[Parker v. Commonwealth, 255 Va. 96, 101,
496 S.E.2d 47, 50 (1998)]; [Baldwin v.
Commonwealth, 243 Va. 191, 196, 413 S.E.2d
645, 648 (1992)].
McCain, 261 Va. at 491, 545 S.E.2d at 545-46.
In McGee v. Commonwealth, 25 Va. App. 193, 487 S.E.2d 259
(1997) (en banc), we further recognized that:
When the police expressly inform an
individual that they have received
information that the individual is engaging
in criminal activity, the police "convey a
message that compliance with their requests
is required," [Bostick, 501 U.S. at 435],
and "that failure to cooperate would lead
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only to formal detention." United States v.
Berry, 670 F.2d 583, 597 (5th Cir. 1982).
25 Va. App. at 200, 487 S.E.2d at 262 (other citations omitted).
In McGee, three police officers approached the defendant,
who was sitting on a porch in front of a store, after receiving a
radio dispatch that a black male wearing a white T-shirt, black
shorts, and white tennis shoes was selling drugs on a corner
Id. at 196, 487 S.E.2d at 260.
The officers informed
the defendant that they "had received a call that [he] was on
this corner selling drugs and [that he] matched the description"
of the individual who had been reported as selling drugs.
(alterations in original).
We found that the officers'
subsequent search of the defendant, although consensual, was
unlawful because the officers detained the defendant when they
approached him and specifically identified him as the subject of
their drug investigation.
Id. at 201, 487 S.E.2d at 263.
Court found that detention was unlawful because it was not based
upon sufficient evidence to support a reasonable articulable
suspicion of criminal activity.
Id. at 203, 487 S.E.2d at 264.
We emphasized that "when a police officer confronts a person
and informs the individual that he or she has been specifically
identified as a suspect in a particular crime which the officer
is investigating, that fact is significant among the 'totality of
the circumstances' to determine whether a reasonable person would
feel free to leave."
Id. at 200, 487 S.E.2d at 262 (emphasis
We went on to note that "[w]hether 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
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as a suspect conveys to the person that he or she is a suspect
and is not free to leave."
Id. at 200-01, 487 S.E.2d at 262-63
(emphases added). 3
Ridley contends that, under McGee, his initial detention
was unlawful, thus the evidence obtained as a result thereof
should have been suppressed.
Unlike the facts in McGee, the record in this case
demonstrates that Ridley was approached by only one officer, who
initially remained seated in his patrol car.
Laino did not inform Ridley that he was the subject of a police
investigation, but while still seated in his police car, merely
asked him if he lived in the apartment complex and informed him
that he was "trespassing" and "not supposed to be there," when
Ridley replied that he did not live there.
The "totality" of
these circumstances fall far short of those with which we were
concerned in McGee.
Indeed, although Officer Laino accused
In a footnote, we specifically noted
that could be considered include the number
whether the officers displayed weapons, and
circumstances of the encounter." McGee, 25
487 S.E.2d at 262 n.2.
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that "[o]ther factors
of officers present,
Va. App. at 200 n.2,
Ridley of committing the crime of trespass, the record reflects
that he did so in the context of a conversation between the two
men concerning Ridley's reason for being in the parking lot not in the context of a criminal investigation or arrest for
that particular criminal offense.
Moreover, Officer Laino
engaged in no conduct which even arguably conveyed to Ridley
that he was not free to leave and that compliance with Officer
Laino's requests was required.
Thus, the circumstances at issue here establish that the
initial meeting between Ridley and Officer Laino was not a
detention, but was a consensual encounter, implicating no Fourth
Laino merely called out to Ridley,
approached him, then inquired if he lived in the apartment
Ridley was cooperative and remained so, even when
Officer Laino asked him if he was carrying any drugs or weapons.
When Officer Laino asked Ridley if he could pat him down, Ridley
placed his own hands against Laino's patrol car.
However, our analysis cannot end here.
The record reflects
that the consensual aspect of this encounter soon disappeared.
When Ridley tried to take his hands off of Laino's patrol car,
Officer Laino first asked, but then later ordered Ridley to keep
his hands on the car.
Officer Laino then "moved" Ridley's feet
back to place him off balance, so that he could complete the
Under the restraint demonstrated by this
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course of conduct, a "reasonable person" clearly would not have
"fe[lt] free to leave," to "ignore" the officer and "walk away,"
at that point in time.
Thus, for Fourth Amendment purposes, we
find that Ridley was "seized" by Officer Laino at that time.
Payne, 14 Va. App. at 88-89, 414 S.E.2d at 870.
Due to the unique circumstances of this case, however, our
analysis does not now require us to consider the lawfulness of
that detention, because immediately after the encounter became a
detention, Ridley "took a swing" at Officer Laino, in an effort
The Supreme Court of Virginia has held that "a person
in this Commonwealth does not have the right to use force to
resist an unlawful detention or 'pat down' search."
Commonwealth v. Hill, 264 Va. 541, 548, 570 S.E.2d 805, 809
In Hill, the Court reasoned that
[b]ecause a detention is, by its nature, a
brief intrusion on an individual's liberty,
the provocation resulting from an illegal
detention is far less significant than the
provocation that attends an illegal arrest.
Thus, recognition of a right to resist an
unlawful detention would not advance the
rationale supporting the common law right to
use reasonable force to resist an unlawful
arrest, but would only serve to increase the
danger of violence inherent in such
Id. at 548, 570 S.E.2d at 808-09.
Accordingly, because Ridley had no right to resist the
detention by use of force, Officer Laino possessed the requisite
probable cause to arrest Ridley at that point in time.
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Bennett v. Commonwealth, 35 Va. App. 442, 449, 546 S.E.2d 209,
212 (2001) (defining assault as "'[a]n attempt or offer, with
force and violence, to do some bodily hurt to another, . . . as
by striking at him with a stick or other weapon, or without a
weapon, though he be not struck, or even by raising up the arm
or a cane in a menacing manner . . . or any similar act
accompanied with circumstances denoting an intention coupled
with a present ability, of using actual violence against the
person of another'" (quoting Harper v. Commonwealth, 196 Va.
723, 733, 85 S.E.2d 249, 255 (1955))); see also Bryson v.
Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250 (1970)
("[T]he test of constitutional validity [of a warrantless arrest
and incidental search] is whether . . . the arresting officer
had knowledge of sufficient facts and circumstances to warrant a
reasonable man in believing that an offense has been
Therefore, the subsequent search conducted by
Laino was proper, as incident to that arrest.
United States v.
Robinson, 414 U.S. 218, 224 (1973); Wright v. Commonwealth, 222
Va. 188, 192-93, 278 S.E.2d 849, 852 (1981).
Because we find
the search at issue here was proper, as incident to a lawful
arrest, we need not address Ridley's argument that the
information provided to Officer Laino by the unknown citizen
informant was insufficient to provide him with the necessary
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reasonable suspicion to detain Ridley, and we affirm the
judgment of the trial court.
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