Thomas v. Com.

• Decision Date: 16 November 2010
• Docket Number: Record No. 1288-09-3.
• Citation: 57 Va.App. 267,701 S.E.2d 87
• Parties: Leroy THOMAS, s/k/a Leroy Michael Thomas v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

701 S.E.2d 87

57 Va.App. 267

Leroy THOMAS, s/k/a Leroy Michael Thomas

v.COMMONWEALTH of Virginia.

Record No. 1288-09-3.

Court of Appeals of Virginia,

Salem.

Nov. 16, 2010.

Keith Orgera, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Benjamin H. Katz, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and KELSEY and McCLANAHAN, JJ.

KELSEY, Judge.

The trial court found Leroy Thomas guilty of possessing a firearm as a convicted felon, unlawfully possessing a concealed weapon, and possessing marijuana, a second or subsequent offense. On appeal, Thomas argues the court should have suppressed the evidence of his crimes because the arresting officers allegedly used the traffic stop as a pretext for conducting a drug investigation. Disagreeing with the legal assumptions underlying Thomas's assertion, we affirm.

I.

When reviewing a denial of a suppression motion, we review the evidence "in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences." Glenn v. Commonwealth, 49 Va.App. 413, 416, 642 S.E.2d 282, 283 (2007) ( en banc ) (citation omitted), aff'd, 275 Va. 123, 654 S.E.2d 910 (2008). This standard requires us to "give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Malbrough v. Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 3 (2008) (citation omitted). In doing so, we "consider facts presented both at the suppression hearing and at trial." Testa v. Commonwealth, 55 Va.App. 275, 279, 685 S.E.2d 213, 215 (2009) (citation omitted).

At about 11:30 p.m. one evening in September 2008, a Virginia State Trooper and a Lynchburg police officer onpatrol together in a marked vehicle made a traffic stop of a Chevrolet Impala. The officers had just observed the Impala, while proceeding under a railroad trestle, cross over a double yellow line with both left wheels into the oncoming traffic lane. See Code § 46.2-804(6) (prohibiting crossing "double traffic lines" except when turning). ¹ Thomas was seated in the front passenger seat of the Impala. After obtaining identification and vehicle registration information from the driver and Thomas, the officer returned to the patrol vehicle to request radio confirmation of their identities and the registration status of the vehicle.

While waiting for the results of the radio check, backup officers arrived and asked the driver if he had drugs in the vehicle. The driver said no and then refused a request for a consensual vehicle search. The trooper brought his "narcotics detecting canine" out from the patrol vehicle and advised the driver he intended to walk the dog around the Impala. The trooper directed the driver and Thomas to exit the car. As Thomas got out, one of the officers asked if he would consent to a pat down for weapons. Thomas stepped away, asking the officer why he thought that was necessary. When Thomas turned around, the officer saw the butt of a handgun partially sticking out from underneath Thomas's shirt. The officer yelled "gun" and then immediately seized a fully loaded .45 caliber handgun.

Moments after the seizure of the handgun, police dispatch responded to the officers' initial request for information on the driver and Thomas. Dispatch advised that Thomas was wanted on an outstanding capias warrant issued by a juvenile and domestic relations district court.² Dispatch provided this informationto the officers within five to seven minutes after the initiation of the traffic stop.

The officer arrested Thomas on the outstanding warrant and for carrying a concealed weapon. Prior to searching Thomas incident to this arrest, the officer asked him if there was "anything else on his person" the officer needed to know about. Thomas saidhe possessed marijuana. The officer then searched Thomas and found on him both marijuana and imitation crack cocaine.

Prior to trial, Thomas filed a motion to suppress both his statement that he possessed marijuana and the contraband found on his person. He argued that the "questions about drugs and so forth" constituted "an additional seizure above and beyond the traffic stop itself that was not based on any reasonable suspicion of criminal activity and that because of that everything should be suppressed, because they abandoned the purpose of the traffic stop." ³

The prosecutor argued that under any objective standard the officers had authority to stop the vehicle for a traffic infraction. And before the stop had come to closure, the officers also had the authority to inquire into matters unrelated to the stop. "On top of all of that," the prosecutor added, "this defendant did have an outstanding capias. He was going to be arrested on that capias regardless of whether or not [the officer] ever saw the gun."

The trial court denied the motion to suppress. In its ruling from the bench, the court explained that the

primary question is whether there was a pretext for a stop and that has to be judged by objective reasonable standards.... I would grant the motion if they didn't have a-a reason to stop the car but they have-on the objective standards they have a reason. They crossed the doubleyellow line. That violates the law. And I don't think there was another seizure within a seizure. I think we're still waiting on the traffic stop.

After this ruling, the trial court proceeded to hear additional evidence and found Thomas guilty of carrying a firearm as a convicted felon, unlawfully carrying a concealed weapon, and possessing marijuana, a second or subsequent offense. Thomas appeals, challenging only the trial court's denial of his motion to suppress.

II.

On appeal, Thomas contends "the officers here wanted to investigate for drugs. They found a legal pretext to stop the car, and after accomplishing that, immediately and utterly abandoned the pretext in favor of their narcotics investigation." Appellant's Br. at 11. This argument, however, relies upon the false premise that the officers' subjective motivations can render unlawful an otherwise objectively reasonable exercise of police authority.⁴

For purposes of assessing the legality of an officer's actions, his "subjective motivation is irrelevant." Robinson v. Commonwealth, 273 Va. 26, 37, 639 S.E.2d 217, 223 (2007) (quoting Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 1948, 164 L.Ed.2d 650 (2006)). A police officer's "action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.' " Stuart, 547 U.S. at 404, 126 S.Ct. at 1948 (emphasis in original and citations omitted). Cf. Jones v. Commonwealth, 279 Va. 665, 673, 691 S.E.2d 801, 805 (2010) (holding an "officer's subjective characterization of observed conduct is not relevant" to anobjective application of the Fourth Amendment (citation omitted)).

Thus, faced with a suppression motion, a court should not limit itself "to what the stopping officer says or to evidence of his subjective rationale," Raab v. Commonwealth, 50 Va.App. 577, 583 n. 2, 652 S.E.2d 144, 148 n. 2 (2007) ( en banc ) (citation omitted), but instead should make " 'an objective assessment of the officer's actions in light ofthe facts and circumstances confronting [them] at the time,' and not on the officer's actual state of mind at the time the challenged action was taken," Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1985) (quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978)).

Thomas's invocation of the "pretext" talisman presupposes a subjective standard. "Use of the word 'pretext' in such an evaluation does not resolve the question of fourth amendment compliance." Bosworth v. Commonwealth, 7 Va.App. 567, 570, 375 S.E.2d 756, 758 (1989). When " 'pretext' is used to describe a police officer's reliance on an insufficient basis for stopping an automobile where a sufficient basis also exists, the word only identifies the officer's subjective intent which does not affect the constitutionality of the stop." Id. at 570-71, 375 S.E.2d at 758.

Stated another way, we do not consider allegations of the "officer's real motive" for his actions if they otherwise satisfy the objective reasonableness standard adopted by the Fourth Amendment. Id. at 571, 375 S.E.2d at 758. An officer's "ulterior motive," whatever it might be, does not nullify an objectively valid "legal justification" for his actions. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996). Nor does it matter that the challenged detention involves a "fine-only traffic violation" rather than a more serious offense. Arkansas v. Sullivan, 532 U.S. 769, 772, 121 S.Ct. 1876, 1878-79, 149 L.Ed.2d 994 (2001) ( per curiam ). Under settled precedent, "a traffic-violation arrest ... [will] not be rendered invalid by the fact that it was'a mere pretext for a narcotics search.' " Id. (citation omitted).

An objective standard governs temporary investigatory detentions,⁵ detentions for the purposes of issuing traffic citations,⁶ detentions for purposes of serving an arrest summons under Code § 19.2-74,⁷ full custodial arrests based upon probable cause,⁸ as well as the scope and duration of each. Applied to the roadside stops, the

temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.

Arizona v. Johnson, --- U.S. ----, 129 S.Ct. 781, 788, 172

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