COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Humphreys and Millette 

Argued at Chesapeake, Virginia 

LEVI JUNIUS HILL, JR. 

 OPINION BY 

v. Record No. 1104-07-1 JUDGE ROBERT P. FRANK 

JULY 15, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG 

AND COUNTY OF JAMES CITY 

Samuel Taylor Powell, III, Judge 

 John D. Konstantinou (Williamsburg Law Group, PLC, on brief), for 

appellant. 

 Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, 

Attorney General, on brief), for appellee. 

 Levi Junius Hill, Jr., appellant, was convicted in a bench trial of possession of cocaine 

with the intent to distribute in violation of Code § 18.2-248. On appeal, appellant contends that 

the trial court erred in denying his motion to suppress his statement to police. He argues that his 

statement was coerced because a police officer threatened to prosecute appellant’s sister for 

possession of the cocaine unless appellant claimed ownership. For the following reasons, we 

find that the trial court did not err in denying appellant’s motion to suppress and we affirm his 

conviction. 

BACKGROUND

In the early morning hours of October 5, 2005, Officers Geary and Johnson of the 

Williamsburg Police Department responded to a report of a suspicious white Ford in the parking 

lot of a 7-Eleven convenience store. Appellant was a passenger in the front seat of the vehicle. 

After some investigation, the officers removed appellant from the vehicle and eventually 
 - 2 -

discovered that appellant had an outstanding warrant for his arrest.1

 While the officers were 

attempting to place appellant under arrest for the outstanding warrant, appellant dropped a baggie 

containing cocaine to the ground. Appellant was placed under arrest for the cocaine in the 

baggie, as well as for the outstanding warrant. A search of appellant’s person incident to the 

arrest yielded marijuana, powdered cocaine, and two small rocks of crack cocaine. After being 

read the warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), appellant stated that the 

marijuana and cocaine were his and that he planned to sell them. The officers took appellant to 

the Virginia Peninsula Regional Jail, where he was processed. 

Shortly thereafter, at approximately 3:30 a.m., the same officers were dispatched to the 

White Lion Motel, located near the 7-Eleven involved in the earlier incident. The caller reported 

that a female was possibly tampering with a green SUV in their parking lot and that the female 

did not reside at the motel. As the officers were responding to that report, dispatch informed 

them that the green SUV had moved to the parking lot of the 7-Eleven. Upon arriving, the 

officers found the green SUV parked next to the same white Ford where they had encountered 

appellant earlier that evening. 

Appellant’s sister was in the driver’s seat of the green SUV, and explained that she had 

allowed her brother to borrow the SUV. Officer Geary asked her for her driver’s license and 

registration, and she complied. When appellant’s sister opened the glove compartment to 

retrieve her registration, Officer Geary saw what he believed to be cocaine. The woman quickly 

closed and locked the compartment. Officer Geary told the female he thought he saw the 

registration in the compartment, and the woman again opened it. Officer Geary then positively 

 1

 The incidents involving the detention, seizure, and search of appellant are not subjects 

of this appeal. 
 - 3 -

observed cocaine. He found what he estimated to be fifty to sixty grams of cocaine inside of a 

toothbrush box within the glove compartment. 

Officer Geary placed the female in custody and took her to the Virginia Peninsula 

Regional Jail. When they arrived at the jail, Officer Geary saw appellant. Appellant had already 

been booked, but was still in the waiting area. Officer Geary wanted to ask appellant some 

questions about the green SUV. Officer Geary again advised him of his rights, and told appellant 

that they found cocaine in the green SUV. Appellant “appeared visibly upset because he was 

afraid his sister was going to get in trouble . . . .” Officer Geary testified, “I said to him his sister 

could be in a lot of trouble and the more he explains, the better off they’d be.” Officer Geary 

continued, “I told him that - - because I wasn’t convinced that it was her cocaine in the car, and I 

told him that the more he cooperates with me, the better off she would be.” Appellant then stated 

all the cocaine found in the green SUV was his. He detailed how it was packaged, how much it 

weighed, and where in the SUV it was located. 

At the hearing on the motion to suppress, appellant testified that because Officer Geary 

could not guarantee that he would let his sister go if he claimed ownership of the cocaine, 

appellant asked to speak to Officer Geary’s lieutenant. Appellant said he spoke briefly with the 

lieutenant by telephone, and the lieutenant assured him they would let his sister go if appellant 

took responsibility for the cocaine. Appellant then signed a statement taking responsibility for 

all of the drugs in the green SUV. 

In ruling on appellant’s motion to suppress, the trial court found that appellant’s sister 

was validly charged with possession of the drugs. The trial court ruled that appellant’s statement 

was voluntary and not coerced, and denied appellant’s motion to suppress. 

 This appeal follows. 
 - 4 -

ANALYSIS

“On appeal from a denial of a suppression motion, we must review the evidence in the 

light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” 

Slayton v. Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003). On appeal, “we 

defer to the trial court’s findings of ‘historical fact’ and give ‘due weight to the inferences drawn 

from those facts by resident judges and local law enforcement officers.’” Barkley v. 

Commonwealth, 39 Va. App. 682, 690, 576 S.E.2d 234, 238 (2003) (quoting Davis v. 

Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378 (2002)). 

Appellant’s sole contention is that his statement was not voluntary because it was 

induced by Officer Geary’s threat to prosecute his sister if he did not confess to ownership of the 

cocaine in the SUV. Under the facts of this case, we disagree with appellant. 

The Supreme Court of Virginia has held that “a confession may be involuntary and hence 

inadmissible when induced by threats to prosecute members of the confessor’s family.” Tipton 

v. Commonwealth, 224 Va. 256, 262, 295 S.E.2d 880, 883 (1982). “[T]he question in each case 

is whether the defendant’s will was overborne at the time he confessed. If so, the confession 

cannot be deemed ‘the product of a rational intellect and a free will.’” Lynumn v. Illinois, 372 

U.S. 528, 534 (1963) (quoting Blackburn v. Alabama, 361 U.S. 199, 208 (1960)) (other citations 

omitted). “This Court must make an independent evaluation of the evidence to determine 

whether [appellant’s] statement was voluntary. In doing so, we may rely upon the observations 

of the trial judge and his findings of fact, except as to the ultimate issue of voluntariness.” 

Gwaltney v. Commonwealth, 19 Va. App. 468, 472-73, 452 S.E.2d 687, 689 (1995). 

 In assessing the voluntariness of a confession on appeal, “we 

must [independently] determine whether, in light of the totality of 

the circumstances, including not only the details of the 

interrogation, but also the characteristics of the accused, the 

statement was the product of an essentially free and unconstrained 
 - 5 -

choice by its maker, or whether the maker’s will was overcome 

and his capacity for self-determination critically impaired.” 

Novak v. Commonwealth, 20 Va. App. 373, 386-87, 457 S.E.2d 402, 408 (1995) (quoting 

Goodwin v. Commonwealth, 3 Va. App. 249, 253, 349 S.E.2d 161, 163-64 (1986)) (alteration in 

original). “Inasmuch as the degree of pressure necessary to crush one’s will varies with the 

individual and the circumstances of the arrest and detention, a finding of coercion and 

involuntariness must be based upon a careful consideration of the totality of the circumstances.” 

Ferguson v. Boyd, 566 F.2d 873, 877 (4th Cir. 1977) (citing Schneckloth v. Bustamonte, 412 

U.S. 218, 226 (1973)). 

The voluntariness issue is a question of law requiring an independent determination on 

appeal. See Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992). In 

making that independent determination, however, “we are bound by the trial court’s subsidiary 

factual findings unless those findings are plainly wrong.” Id. 

Voluntariness is not equated with the absolute absence of intimidation. United States v. 

Pelton, 835 F.2d 1067, 1072 (4th Cir. 1987). “[A] confession is not per se invalid merely 

because the confessor implicates himself in an effort to secure the best possible disposition of a 

charge pending against a relative or friend.” Ferguson, 566 F.2d at 878 n.7. 

In assessing the individual facts of this case, the trial court found that 1) appellant 

appeared to be an intelligent individual, 2) appellant has had prior experience with police, 

3) there was no indication of drug use on this particular evening, 4) there was no evidence of 

mental instability or disability, 5) there was no evidence of deprivation of physical comfort, and 

6) appellant was not a person of “tender years.” The court then noted that the police did not use 

trickery or deceit. The court reasoned that the only remaining issue is whether the police used 
 - 6 -

“psychological pressure” by telling appellant that his sister was charged with possession of the 

drugs recovered from the SUV.2 

On brief, appellant relies exclusively on Tipton, 224 Va. 256, 295 S.E.2d 880, to 

persuade us that his conviction should be reversed. We read Tipton differently. The issue in 

Tipton was simply whether the trial court erred in not allowing evidence concerning the 

voluntariness of a defendant’s confession. While we agree that Tipton is instructive on the rules 

regarding admissibility of confessions, Tipton merely holds that the trial court must hear all 

relevant evidence in determining whether a confession was procured by threats. Tipton, 224 Va. 

at 262, 295 S.E.2d at 882 (“Where the issue of admissibility turns upon voluntariness, the court 

should hear all pertinent evidence on the subject.”). Tipton does not hold that a threat to 

prosecute a family member is a per se violation, nor does Tipton instruct on what quantum of 

evidence is necessary to render a confession involuntary and therefore inadmissible. 

We also find the Supreme Court of Virginia’s decision in Hammer v. Commonwealth, 

207 Va. 135, 148 S.E.2d 878 (1966), distinguishable on its facts. In Hammer, the Court found 

appellant’s incriminating statement inadmissible because the Chief of Police required Hammer to 

make the statement as a condition to the Chief’s promise to refrain from prosecuting members of 

Hammer’s family. Id. at 148, 148 S.E.2d at 886. The appellant in Hammer was accused of 

breaking and entering with the intent to commit rape. Id. at 137, 148 S.E.2d at 878. He 

ultimately confessed to that offense after the police threatened to prosecute his parents for 

possession of stolen property that was recovered from the home he shared with his parents. Id. at 

147, 148 S.E.2d at 885. In Hammer, the parents were not yet arrested, and the record is unclear 

 2

 Appellant does not challenge the trial court’s other factual findings. The only issue 

raised by appellant is the trial court’s ruling as to the psychological pressure applied by the 

officers. 
 - 7 -

whether the arrest would have been valid or unjustified. In other words, the Hammer analysis 

addressed a threat to prosecute potentially innocent parties as an act of retribution. 

Here, appellant’s sister was already validly arrested pursuant to probable cause. The 

question is whether a promise to forgo a valid prosecution against a lawfully charged party is 

coercive. We find that appellant’s desire to extricate his sister from a valid arrest does not in 

itself render his confession involuntary. 

Other jurisdictions have also held that a desire to disentangle a family member from a 

good faith arrest does not render a confession involuntary. In Allen v. McCotter, 804 F.2d 1362 

(5th Cir. 1986), the United States Court of Appeals for the Fifth Circuit examined whether a 

confession was voluntary in light of arrest threats against a defendant’s family members. The 

appellant’s wife had driven him to a bar where he was going to sell a shotgun. Id. at 1363. The 

prospective purchaser did not arrive, and defendant “tried to rob” the bar at gunpoint. Id. 

During his post-arrest interrogation, a police detective told defendant that because his wife was 

“directly involved” in the robbery, charges could be filed against her; however, if he confessed, 

the detective told him that the police would not file charges against his wife. Id. Appellant 

confessed, and the court held that his confession was voluntary: 

Petitioner . . . argues that his confession should have been 

excluded as involuntary. Petitioner insists that his wife was not 

involved in the robbery and that his confession was therefore 

impermissibly induced by Detective Payne’s threat to “file” on her. 

We disagree. Petitioner concedes in his reply brief that his wife 

drove him to the bar where the robbery took place. It is undisputed 

that petitioner’s wife drove petitioner to the bar where he removed 

a shotgun from the trunk of the automobile and entered the bar. 

Based on these objective facts known by Detective Payne at the 

time of the interrogation, Detective Payne had probable cause to 

arrest the petitioner’s wife for aiding in the commission of the 

robbery. The petitioner’s confession was therefore not involuntary 

by reason of his desire to extricate his wife from a possible good 

faith arrest. 
 - 8 -

Id. at 1364. See also United States v. Stewart, 353 F. Supp. 2d 703, 707 (E.D. La. 2004) (“Any 

threat to arrest [appellant’s] family members if [appellant] did not confess would therefore have 

been in good faith. [Appellant’s] desire to extricate them from the consequences of a good faith 

arrest does not render his statements involuntary.” (footnote omitted)); United States v. 

Contreras-Del Toro, 892 F. Supp. 159, 160 (N.D. Tex. 1995) (“A confession motivated by desire 

to extricate a friend or relative from a possible good-faith arrest is not involuntary. What renders 

a confession involuntary is not any threat or promise, but rather a threat or promise of 

illegitimate action.” (citation omitted)), aff’d, 129 F.3d 612 (5th Cir. 1997); United States v. 

Mullens, 536 F.2d 997, 1000 (2d Cir. 1976) (noting that no federal court has yet held that a 

confession or consent is involuntary solely on the ground that it was prompted by the defendant’s 

desire to shield a relative from the rigors of arrest, interrogation, and possible confinement). 

It is undisputed that appellant’s sister was driving a vehicle that contained fifty to sixty 

grams of cocaine. The sister attempted to conceal the drugs from Officer Geary as she was 

retrieving the vehicle registration from the glove compartment. Based on these facts, Officer 

Geary had probable cause to arrest appellant’s sister for possession of cocaine. Indeed, the trial 

court found the arrest was valid. We find that Officer Geary’s intimation that appellant’s sister 

may be prosecuted was based on fact and was not an act of retribution. Although appellant may 

have felt a genuine concern for his sister and the circumstances may have presented a difficult 

choice for appellant, the facts here do not show that appellant was coerced. Officer Geary was 

accurately informing appellant of the possible consequences of his and his sister’s illegal acts. 

Thus, we conclude that appellant was not induced to incriminate himself in order to exculpate his 

sister. 
 - 9 -

CONCLUSION

 For the foregoing reasons, we conclude that appellant’s incriminating statement 

concerning ownership of the cocaine located in the green SUV was voluntary. The trial court did 

not err in denying appellant’s motion to suppress. 

Affirmed.