                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia


ERIE LAWRENCE
                                                  OPINION BY
v.   Record No. 0625-02-2                 JUDGE JAMES W. BENTON, JR.
                                                 MARCH 18, 2003
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
              Buford M. Parsons, Jr., Judge Designate

           Joseph W. Kaestner (Kaestner & Associates,
           P.C., on brief), for appellant.

           Virginia B. Theisen, Assistant Attorney
           General (Jerry W. Kilgore, Attorney General,
           on brief), for appellee.


     The trial judge denied Erie Lawrence's motion to suppress

heroin seized from his pocket and convicted him of possession of

heroin.   Lawrence contends the warrantless search was unlawful.

We agree and reverse the conviction.

                               I.

     The evidence proved Officer Christopher Jernigan went to a

residence to investigate "a trouble unknown" report, which vaguely

suggested someone was inside the residence.    While walking to the

residence, the officer saw a woman sleeping in an automobile with

the engine running.   After learning that the homeowner, who only

spoke Spanish, was attempting to report cars racing along the

street, the officer left the residence.    Believing "something
[was] not right" with the woman who was sleeping in the

automobile, the officer initiated a conversation with her.       She

told the officer she was waiting for the driver to return.

     The officer "ran the tags" on the automobile and learned they

were registered to a pickup truck.      After he obtained that

information, the woman exited the automobile and asked if she was

free to leave.    The officer testified that he "said certainly, I

have nothing.    Go ahead."   Shortly after she walked away, Lawrence

approached the automobile.    When the officer asked "is that your

car?," Lawrence said it was.    The officer then directed Lawrence

to step toward him, told Lawrence he was "not free to leave," and

"put him in handcuffs."   The officer testified that he uses "the

same" procedure when detaining persons and that he had no reason

to believe Lawrence posed a threat to him.

     The officer described the events that followed:

             I believe he asked if he was under arrest
          at that time. I said no, you're under
          investigative detention. I said do you have
          a driver's license? He said it's in my
          pocket. . . .

             I said where was his license located. He
          told me that it was in his inner jacket
          pocket. When I went into the pocket to
          retrieve it, pulled out his license and also
          unknown to me, a cellophane bag, in which it
          contained a brownish substance that I
          believed at that point in time to be heroin.




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              At that point in time, I placed him under
           arrest, and he was transported to lockup,
           charged with felony possession with intent
           to distribute.

     The trial judge denied Lawrence's motion to suppress the

heroin.   At the conclusion of further evidence, which consisted

of the officer's testimony concerning the heroin, the trial

judge convicted Lawrence of possession of heroin.

                               II.

     Lawrence contends that the officer lacked authority to

handcuff and to search him.   The Commonwealth replies that all

aspects of the detention were lawful and that the search was

based upon Lawrence's consent or, in the alternative, upon

probable cause to believe "Lawrence's driver's license was in

his pocket and . . . would be 'useful as evidence.'"

     We apply the following standards on our review:

              In reviewing a trial court's denial of a
           motion to suppress, "[t]he burden is upon
           [the appellant] 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 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.


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McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,

261 (1997) (footnote and citations omitted).

     The essential facts are not disputed.     The officer first

noticed the automobile because its engine was running and it was

occupied by a woman who was asleep.   When he spoke to the woman,

she said she had come to that location with the driver but did

not know his name, or the house he entered, or when he was

expected to return.   The officer "ran the tags on the

[automobile]" and learned that they belonged to a truck.

     Various statutes, including Code § 46.2-715, require that

license plates assigned to a motor vehicle be displayed on that

motor vehicle.   Under certain conditions, however, the

Commissioner of the Department of Motor Vehicles may permit "the

use of license plates on a vehicle other than the vehicle for

which the license plates were issued."   Code § 46.2-719.    See

also Code § 46.2-720.   Nonetheless, the officer had a sufficient

basis to reasonably suspect a violation of Code § 46.2-715 and

to detain Lawrence for an investigation when Lawrence identified

himself as the operator of the automobile.   Unless otherwise

stated, however, violations of the motor vehicles statutes are

"traffic infractions," Code § 46.2-113, and ordinarily subject

the violator to the issuance of a summons.     See Code § 46.2-936.

     The Commonwealth argues that the officer could have

"reasonably . . . suspect[ed] that the car was stolen."     We

disagree.   The evidence in the record did not prove
                              - 4 -
circumstances that raised a reasonable suspicion the automobile

had been stolen.   After the officer "ran the tags," he received

no report either that the automobile in his presence had been

stolen or that the truck whose license plates were on the

automobile had been stolen.   The officer did not testify that he

observed any damage suggesting a forced entry or rigging of the

ignition.   The automobile's keys were in the ignition, and a

person was in the automobile.    Significantly, when the woman in

the automobile asked if she could leave, the officer "said

certainly, I have nothing.    Go ahead."   At that time, the

officer knew that the license plates belonged to another

vehicle.    The totality of the circumstances negates any

suggestion of a reasonable belief the automobile was stolen.

     In light of the circumstances, it was unreasonable for the

officer to put handcuffs on Lawrence while investigating a

traffic violation that would warrant only the issuance of a

summons for the violation.

            [T]he investigative methods employed [during
            an investigative detention] should be the
            least intrusive means reasonably available
            to verify or dispel the officer's suspicion
            in a short period of time. It is the
            State's burden to demonstrate that the
            seizure it seeks to justify on the basis of
            a reasonable suspicion was sufficiently
            limited in scope and duration to satisfy the
            conditions of an investigative seizure.

Florida v. Royer, 460 U.S. 491, 500 (1983).



                                - 5 -
     The Commonwealth attempts to justify the officer's use of

the handcuffs by noting that another man was with Lawrence and

that "'several' other individuals were on the scene interfering

with the encounter."   The record, however, refutes the

Commonwealth's contentions.

          Q. When you put him in handcuffs, did you
          conduct a pat down of the outside of his
          clothing?

          A. No, I hadn't gotten that far yet, sir.
          I put him in handcuffs, and I said where's
          your license? My next thing is going
          directly to the Social Security number to
          find out if this guy has got any warrants,
          okay?

             At that point in time, he's in handcuffs.
          At that point in time, I run the license to
          do my pat down. The same thing every time.

     The officer merely testified that he used the handcuffs

because Lawrence was "under investigative detention."     Beyond

this generalized statement of the officer's usual procedure,

nothing in the record supports the officer's decision to use

handcuffs while investigating a traffic infraction that was

subject to a summons for the violation.   The officer never

testified that the presence of Lawrence's companion or any other

person compelled him to place Lawrence in handcuffs.    In

addition, the officer did not testify that he believed Lawrence

was armed and dangerous.   Indeed, he testified that the

circumstances did not indicate Lawrence did anything to threaten

his continued investigation.   Finally, the officer's own

                               - 6 -
testimony undermines the Commonwealth's claim that the officer

used the handcuffs because the circumstances so required.      It is

clear from the officer's testimony that he always places

suspects in handcuffs while conducting investigative detentions.

He testified he does "[t]he same thing every time."    We hold

that the officer's decision to handcuff Lawrence was a more

serious intrusion on personal liberty than is allowable under

these circumstances and, thus, constituted unreasonable

restraint.     Cf. Sattler v. Commonwealth, 20 Va. App. 366, 369,

457 S.E.2d 398, 400 (1995) (holding that an officer's

"generalized policy of frisking all [detained] persons" is

unreasonable).

     The Commonwealth contends Lawrence consented to the

officer's actions in retrieving his license.    We disagree.

     Recently, we addressed the issue of the determinations to

be made when consent to search is raised.

             "'Consent to a search . . . must be
             unequivocal, specific and intelligently
             given . . . and it is not lightly to be
             inferred.'" Although the consent need not
             be oral, mere acquiescence is not enough.
             Additionally, the Commonwealth bears the
             burden of proving that consent was in fact
             given, and "that burden is heavier where the
             alleged consent is based on an implication."

Jean-Laurent v. Commonwealth, 34 Va. App. 74, 78-79, 538 S.E.2d

316, 318 (2000).    In addition, and pertinent to this case, we

held that "conduct which evidences nothing more than an

acquiescence, particularly when no request to search has been
                             - 7 -
made, has been held insufficient to constitute consent."       Id. at

79, 538 S.E.2d at 318.

     The evidence proved that the officer did not ask for

consent to obtain Lawrence's license or to reach into his

pocket.   The officer testified that after he put the handcuffs

on Lawrence he asked Lawrence "where was his license located."

When Lawrence said the license "was in his inner jacket pocket,"

the officer "went into the pocket to retrieve it."      On

cross-examination, the officer very clearly confirmed that he

did not seek Lawrence's consent to a search.

            Q. Now, it was when Mr. Lawrence was in
            handcuffs that you asked him for his
            license; is that correct?

            A. I didn't ask him for his license.    I
            asked him where his license was.

            Q. And he told you while he was in
            handcuffs; is that right?

            A.   That is right.

            Q. And then you reached inside his jacket
            pocket?

            A.   He wasn't able to do so, sir.

No evidence in the record proves consent was either requested or

obtained.   "The burden was upon the officer to obtain consent,

not on [Lawrence] to affirmatively deny consent."       Id. at 80,

538 S.E.2d at 319.




                                  - 8 -
     Accordingly, we hold that the trial judge erred in denying

the motion to suppress, and we reverse the conviction and

dismiss the indictment.

                                        Reversed and dismissed.




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