McGee v. Commonwealth

In McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997), Officer Loperl received a radio dispatch that a "black male wearing a white t-shirt, black shorts, and white tennis shoes was selling drugs on a corner near 5001 Government Road in Richmond." 25 Va. App. at 196, 487 S.E.2d at 260. Within minutes, Officer Loperl and two other officers arrived at 5001 Government Road in marked police vehicles. Id. The officers approached McGee and a female who were sitting on a porch in front of a store. Id. McGee and the woman were the only people in the vicinity. Id. The officers did not observe McGee's activity prior to approaching him, and Officer Loperl testified he did not know whether McGee was wearing the clothing described in the dispatch. Id. Officer Loperl approached McGee and told him that the police had received a report that he was selling drugs on the corner and that he matched the description of the person described as selling the drugs. Id. Officer Loperl testified that McGee was free to leave but stated that the officers did not expressly communicate that to McGee. Id. Officer Loperl also testified that the officers did not block McGee's path or draw their weapons. Id. Then, Officer Loperl asked McGee if he could pat him down to check for weapons. Id. at 197, 487 S.E.2d at 261. The officer testified that he used "the same tone of voice he was using in court" to ask the question. Id. McGee "responded by standing up and extending his arms in front of him with both fists clenched." Id. Finding no weapons on appellant's person, Officer Loperl stated he asked McGee to open his fists because he "believed McGee could have been holding a 'small pocket knife' or 'a razor . . . .'" Id. Officer Loperl stated he asked, not told, McGee to open his hands. Id. When McGee opened his fists he was holding money, a torn ziplock bag, and "'a little piece of white substance.'" Id. Officer Loperl arrested McGee and found twenty-five bags of crack cocaine during a search incident to the arrest. Id. Sitting en banc, the Court held that the encounter between McGee and the officers was not consensual because "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.'" Id. at 200, 487 S.E.2d at 262. The Court held that Officer's Loperl's statement to McGee did not convey the message that the officers were conducting a general investigation of reported drug dealing. Id. at 201, 487 S.E.2d at 263. Rather, McGee specifically was identified as the subject of the investigation. Id. The Court additionally noted that three officers, in marked police vehicles, confronted McGee and that the trial court, which had the opportunity to evaluate Officer Loperl's tone of voice, found that a seizure occurred. Id. Thus, the Court concluded that "the officers did not by their words or actions suggest that McGee was free to leave." Id.