Opinion
Case No. FE-2010-1835
07-29-2011
Commonwealth of Virginia v. Orlando Quispo Duran Aguado
Mr. Ryan Fitzgerald, Esquire Office of the Commonwealth's Attorney Mr. Conrad Gaarder, Esquire Conrad C. Gaarder, PC
DENNIS J. SMITH, CHIEF JUDGE
MARCUS D. WILLIAMS
JANE MARUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L BRODIE
LORRAINE NORDLUND
BRETT A. KASSABIAN
MICHAEL F. DEVINE
JUDGES
BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKORT
RICHARD J. JAMBORSKY
JACK B. STEVENS
J. HOWE BROWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.
MICHAEL P. MCWEENY
GAYLORD L. FINCH, JR.
STANLEY P. KLEIN
RETIRED JUDGES
July 29, 2011
Dear Mr. Fitzgerald and Mr. Gaarder:
This matter comes before the Court on the motion of the defendant, Orlando Duran Aguado, to suppress the cocaine found on him by Officer Daniel Custer. The motion came on for hearing on February 18, 2011. Initially, the Court denied the motion to suppress. Thereafter, the Court sua sponte ordered further testimony and argument. On February 25, 2011, the Court heard more testimony and argument.
For the reasons that follow, the Court grants the motion to suppress.
STATEMENT OF FACTS
On September 25, 2010, around 11:00 PM, Officer Daniel Custer performed a traffic stop of a vehicle driven by Ruben Nunez. The defendant, Orlando Duran Aguado, was a passenger in the vehicle. Officer Custer parked his cruiser behind a vehicle that was parked to the immediate right of the vehicle in which Aguado was a passenger. Officer Custer's cruiser did not block the vehicle in which Aguado was a passenger.
Nunez and Officer Custer were outside the vehicle when Officer Custer issued a ticket to Nunez. After receiving the ticket and a notice of suspension, Nunez turned and began walking back to the vehicle. Officer Custer asked Nunez if there was anything illegal in the car. Nunez said there was not. Nevertheless, Officer Custer asked Nunez for permission to search the vehicle. Nunez replied, "Go ahead." Aguado, who had remained in the car, did not hear the conversation between Officer Custer and Nunez.
Officer Custer, for safety reasons, did not want Aguado to remain in the car while he conducted the search of the car. Officer Custer asked Aguado to step out of the vehicle. Aguado complied. Officer Custer then asked Aguado, in English, to sit on the curb. Officer Custer does not remember the exact words he used to ask Aguado to sit on the curb. However, Officer Custer testified that it was hard for him to say whether he "ordered" Aguado to sit on the curb.
Another officer, Officer Shayna Nickolas, arrived at the scene to assist with the search. Officer Nickolas positioned herself between the car and Nunez and Aguado while Officer Custer conducted the search of the vehicle. Officer Custer testified that searches customarily involve another officer staying with those who consent to the search for safety reasons and to relay information to the searching officer if the consent is withdrawn during the search. Officer Nickolas did not draw her weapon during the search. Officer Custer found nothing illegal in the car.
Officer Custer then asked Nunez to consent to a search of his person. Nunez complied. Once he had consent, Officer Custer went behind Nunez and searched him. After the search of Nunez yielded nothing illegal, Officer Custer moved on to Aguado and asked him in English if he had any drugs, knives, or weapons.
Aguado did not reply. Officer Custer then asked Aguado in Spanish if he had any guns, knives, or drugs. Aguado replied that he did not. Officer Custer then asked Aguado in Spanish if he could check. Aguado consented. Officer Custer found cocaine on Aguado's person.
At all times during the encounter, Officer Custer spoke in a calm voice. While Officer Custer never indicated that Nunez or Aguado would be detained, neither did he tell either of them that they were free to leave.
DISCUSSION
The Fourth amendment recognizes three categories of police-citizen contacts: (1) consensual encounters; (2) minimally intrusive detentions based on specific, articulable facts, commonly known as a Terry stop; and (3) highly intrusive arrests founded on probable cause. See Middlebrooks Commonwealth, 52 Va. App. 469, 476, 664 S.E.2d 499, 502 (2008).
The Commonwealth does not contend that Officer Custer had a probable cause to arrest Aguado or specific facts to suspect Aguado of any illegal activities. Therefore, this analysis focuses on the consensual encounter category.
Here, the initial stop of the vehicle was lawful. However, the continued detention and search of Aguado, in my opinion, were not. I find, as a matter of law, that Officer Custer did not obtain valid consent from Augado. A reasonable person, in the same situation as Aguado, would not have believed he was free to leave, or to refuse Officer Custer's requests.
Even if the police have no evidence of illicit activity or probable cause to arrest, voluntary consent can validate what might otherwise be an unlawful search. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (holding that when the subject of a search is not under arrest, and the State attempts to justify the search on the basis of his consent, the consent must be voluntary and not the result of duress or coercion).
Whether an encounter is consensual is viewed under the totality of circumstances. Ohio v. Robinette, 519 U.S. 33, 34 (1996); Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003).
This case is remarkably similar to the Harris case. In Harris, the officer initiated a traffic stop based on a broken license plate fight the officer observed on Harris's truck. Shortly after the stop a second officer arrived on the scene. Although the officer asked for license and registration, Harris produced only his social security card. Harris complied with the officer's request that he step from the truck. The officer asked Harris questions to confirm his identity. Finally, satisfied with the identification, the officer handed Harris the social security card, and although he did not charge Harris with a traffic offense, the officer asked Harris if there was anything illegal in the truck or on his person. Harris replied that he had nothing illegal, but the officer asked Harris if he could search the truck. The officer testified that Harris was free to go, although the officer did not tell Harris that he was free to go.
The Supreme Court held that the traffic stop concluded when the officer returned the social security card to Harris. Id. at 33. It is true that in Harris the officer had not informed Harris that he was free to leave, whereas in this case Nunez (and only Nunez) might have understood that he was free to leave when Officer Custer told Nunez, "to have a good night." This apparent end to the encounter, however, was immediately followed by Officer Custer asking Nunez if there was anything illegal in the car, and, after Nunez replied there was not, Officer Custer then asked if he could search the car. I find it difficult to conclude that the average citizen, after being first told "to have a good night" only to be immediately questioned about contraband, followed by yet another request to search the citizen's car, would feel free to refuse the request or to leave the scene. Aguado, who, not hearing Officer Custer say to Nunez to 'have a good night," would have been even more unlikely to have concluded that he was free to go or to disregard Officer Custer's directives.
Aguado was not informed that he was free to leave. Moreover, he was either directed to exit the vehicle, or asked to leave the vehicle, and to sit on the curb. He remained in the presence of two armed police officers during the search of the vehicle. In this case, one of the police officers (Officer Nickolas) stood between Aguado and the vehicle, further creating the impression he was not free to leave.
CONCLUSION
For the reasons stated above, I conclude that Aguado's consent was not valid and the motion to suppress is granted.
Counsel will prepare an order consistent with this letter opinion and submit it to my law clerk (Law Clerk No. 6) for my signature.
Sincerely, Judge, Fairfax County Circuit Court
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