797 S.E.2d 794 (Va.App. 2017), 0714-16-3, Hairston v. Commonwealth

Docket Nº:0714-16-3
Citation:797 S.E.2d 794, 67 Va.App. 552
Opinion Judge:MARLA GRAFF DECKER, JUDGE
Party Name:NAJEE FINIQUE HAIRSTON v. COMMONWEALTH OF VIRGINIA
Attorney:M. Lee Smallwood, II, Deputy Public Defender, for appellant. Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Judge Panel:Present: Chief Judge Huff, Judges Chafin and Decker.
Case Date:April 11, 2017
Court:Court of Appeals of Virginia

Page 794

797 S.E.2d 794 (Va.App. 2017)

67 Va.App. 552

NAJEE FINIQUE HAIRSTON

v.

COMMONWEALTH OF VIRGINIA

No. 0714-16-3

Court of Appeals of Virginia

April 11, 2017

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE. Joseph W. Milam, Jr., Judge.

M. Lee Smallwood, II, Deputy Public Defender, for appellant.

Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Huff, Judges Chafin and Decker.

OPINION

[67 Va.App. 556] MARLA GRAFF DECKER, JUDGE

Najee Finique Hairston appeals his convictions for possession of cocaine and possession of a cannabimimetic agent, both with the intent to distribute, in violation of Code § 18.2-248, as well as for driving on a suspended license, third or subsequent offense, in violation of Code § 46.2-301. He contends that the circuit court erred by denying his motion to suppress. As the basis for his claim, the appellant argues that the stop of the [67 Va.App. 557] vehicle he was driving and the seizure of his person were unreasonable because any basis for conducting the stop had grown stale. We hold that the stop and seizure of the appellant were supported by probable cause, which had not grown stale during the three hours that passed after the law enforcement officer observed him driving recklessly in violation of the law. Consequently, we hold that the court's denial of the motion to suppress was correct, and we affirm the challenged convictions.

I. BACKGROUND1

On March 7, 2015, between 2:15 and 2:30 p.m., Detective Karen Fraser of the City of Danville Police Department was driving on a two-lane road through adjacent Pittsylvania County on her way to begin her shift in Danville at 2:45 p.m. A white Camaro traveling in the same direction passed her vehicle " in a curve on the double [solid-yellow] line[s]." Fraser recognized the car from " dealing with it in the city." As she continued to watch, the Camaro passed a second vehicle and then a third one in a similar fashion, each time crossing the double solid-yellow lines and " veer[ing] into the left lane of oncoming traffic." The third of these traffic violations occurred within a mile of the Danville city limits. Additionally, the Camaro was " traveling at a high rate of speed" as it drove toward the city.

Detective Fraser continued to follow the car as it entered the city limits. She did so because she " planned on taking warrants out on the person for reckless driving" and needed " to know who the driver was." When the Camaro stopped at a traffic light, she photographed its license plate. Fraser then pulled into the lane adjacent to the Camaro's right side, and while the cars were three to five feet apart, she photographed [67 Va.App. 558] the driver. Additionally, the driver lowered the front passenger window, giving her an unobstructed view of his face. The driver, who was alone in the car, was not the person she knew to be its owner, and she did not recognize him. After he made some comments to her, while still stopped at the traffic light, she told him that she was a police officer. Fraser added that " as soon as [she] found out who he was[,] . . . [she] would be trying to obtain a warrant on him for the way he was driving."

When Fraser arrived at the police precinct to begin her shift, she showed the photographs to other officers and described the man by race and hairstyle. None of the officers were able to identify him. Fraser asked them to look for the Camaro while on duty that night because she " wanted to try to obtain the driver's information."

At about 5:00 p.m. that evening, while Detective Fraser was on patrol with Officer L.D. Land, he pointed out a white Camaro and asked Fraser if it was the car she had seen earlier. Fraser positively identified the car and determined that its driver was the same person she had seen driving in a reckless manner earlier that day. She also looked at the photographs she had taken and confirmed that the license plate number matched.

Fraser told Land to stop the car so that she could identify the driver. The Camaro pulled into a convenience store, and Land parked behind it. Officer Land approached the driver, who was the appellant.2 Detective Fraser went to the passenger's side and recognized the passenger as the owner of the vehicle.

As soon as Land made contact with the appellant, before the officers had identified the appellant by name, Land detected the odor of burned marijuana. The officers ordered the occupants out of the car and searched it. They found a large [67 Va.App. 559] quantity of cocaine and synthetic marijuana, as well as various packaging materials and other paraphernalia.

The appellant was arrested for possession of cocaine with intent to distribute and possession of a cannabimimetic agent with the intent to distribute. He was later indicted for those offenses, as well as for driving on a suspended license, third or subsequent offense. He was not charged with or prosecuted for reckless driving.

Prior to trial, the appellant filed a motion to suppress the evidence obtained in what he contended was an unconstitutional seizure. At the hearing on the motion, he argued that the stop was " clearly pretextual," emphasizing that Detective Fraser made no attempt to get the appellant's name when she spoke to him at the traffic light during their original encounter. He also suggested that she lacked reasonable suspicion to conduct a traffic stop when she and Land detained the appellant later in the convenience store parking lot because the information regarding the " mere traffic infraction" had become " stale."

The trial court denied the motion to suppress. In doing so, it found that Detective Fraser identified the car and the driver less than three hours after she observed the traffic offense. Additionally, the court held that the fact that the detective needed the driver's name to pursue reckless driving charges against him, whether by a summons she issued during the encounter or under an arrest warrant issued later by a magistrate, provided reasonable suspicion for an investigatory stop.

The appellant was later convicted of the charged offenses in a bench trial. For each drug offense, he was sentenced to ten years' incarceration with seven years six months suspended. He was sentenced to six months' incarceration with five months ten days suspended for the driving offense.

II. ANALYSIS

The appellant contends that the stop of the vehicle he was driving violated the Fourth Amendment of the United States Constitution [67 Va.App. 560] because the only information supporting the stop was stale. He emphasizes that he was not, at that time, committing any crime or " doing anything suspicious" and that the only basis for the stop was a traffic infraction witnessed by one of the officers earlier in the day.3 He suggests that his earlier actions did not justify a seizure because the officers did not have an arrest warrant based on that conduct.4

In reviewing the denial of a motion to suppress, we " consider the facts in the light most favorable to the Commonwealth, the prevailing party at trial." Malbrough v. Commonwealth, 275 Va. 163, 168, 655 S.E.2d 1, 3 (2008). It is the appellant's burden to show that when viewing the evidence in such a manner, the trial court committed reversible error. Harris v. Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145 (2008). The question of whether a search or seizure violated the Fourth Amendment is " a mixed question of law and fact that we review de novo " on appeal. Id. at 694, 668 S.E.2d at 145. An appellate court independently reviews the trial court's application of relevant legal principles such as [67 Va.App. 561] whether reasonable suspicion or probable cause supported a seizure. Brooks v. Commonwealth, 282 Va. 90, 95, 712 S.E.2d 464, 466 (2011) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). In doing so, however, the Court is " bound by the trial court's factual findings unless those findings are plainly wrong or unsupported by the evidence." Malbrough, 275 Va. at 168, 655 S.E.2d at 3. Moreover, " we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc ).

A law enforcement officer has a legitimate constitutional basis for seizing a person if the officer has either reasonable suspicion or probable cause to believe, " based on objective facts, that the [person] is involved in criminal activity." Whitaker v. Commonwealth, 279 Va. 268, 274, 687 S.E.2d 733, 736 (2010) (alteration in original) (quoting Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722 (1997)).

Reasonable suspicion " is more than an 'unparticularized suspicion or " hunch." '" Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923 (2000) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Nevertheless, it " requires only 'some minimal level of objective justification.'" Branham v. Commonwealth, 283 Va. 273, 280, 720 S.E.2d 74, 78 (2012) (quoting I.N.S. v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)). The existence of reasonable suspicion permits a brief seizure " while the officer questions [the suspect], tries to identify him[,] and attempts to gather additional information to . . . dispel or confirm his suspicions." Id. at 279-80, 720 S.E.2d at 78.

Probable cause for a warrantless arrest " exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or...

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16 practice notes
  • Commonwealth v. Coleman, 112018 VACA, 1017-18-2
    • United States
    • Virginia Court of Appeals of Virginia
    • November 20, 2018
    ...that when viewing the evidence in such a manner, the trial court committed reversible error." Hairston v. Commonwealth, 67 Va.App. 552, 560, 797 S.E.2d 794, 798 (2017). Any claim of Fourth Amendment violation presents "a mixed question of law and fact that......
  • Commonwealth v. Peyton, 041619 VACA, 2006-18-1
    • United States
    • Virginia Court of Appeals of Virginia
    • April 16, 2019
    ...when viewing the evidence in such a manner, the trial court committed reversible error." Hairston v. Commonwealth, 67 Va.App. 552, 560 (2017). Any claim of Fourth Amendment violation presents "a mixed question of law and fact that we review de novo on appeal.&q......
  • Commonwealth v. Ray, 110519 VACA, 0975-19-3
    • United States
    • Virginia Court of Appeals of Virginia
    • November 5, 2019
    ...that when viewing the evidence in such a manner, the trial court committed reversible error." Hairston v. Commonwealth, 67 Va.App. 552, 560 (2017). Furthermore, "[i]n a bench trial, a trial judge's 'major role is the determination of fact, and with experie......
  • Commonwealth v. Ferguson, 011420 VACA, 1245-19-2
    • United States
    • Virginia Court of Appeals of Virginia
    • January 14, 2020
    ...the burden of showing that the circuit court's ruling constituted reversible error. See, e.g., Hairston v. Commonwealth, 67 Va.App. 552, 560 (2017). An appellate court reviews de novo the legal question whether double jeopardy bars a subsequent prosecution. See ......
  • Free signup to view additional results
16 cases
  • Commonwealth v. Coleman, 112018 VACA, 1017-18-2
    • United States
    • Virginia Court of Appeals of Virginia
    • November 20, 2018
    ...that when viewing the evidence in such a manner, the trial court committed reversible error." Hairston v. Commonwealth, 67 Va.App. 552, 560, 797 S.E.2d 794, 798 (2017). Any claim of Fourth Amendment violation presents "a mixed question of law and fact that......
  • Commonwealth v. Peyton, 041619 VACA, 2006-18-1
    • United States
    • Virginia Court of Appeals of Virginia
    • April 16, 2019
    ...when viewing the evidence in such a manner, the trial court committed reversible error." Hairston v. Commonwealth, 67 Va.App. 552, 560 (2017). Any claim of Fourth Amendment violation presents "a mixed question of law and fact that we review de novo on appeal.&q......
  • Commonwealth v. Ray, 110519 VACA, 0975-19-3
    • United States
    • Virginia Court of Appeals of Virginia
    • November 5, 2019
    ...that when viewing the evidence in such a manner, the trial court committed reversible error." Hairston v. Commonwealth, 67 Va.App. 552, 560 (2017). Furthermore, "[i]n a bench trial, a trial judge's 'major role is the determination of fact, and with experie......
  • Commonwealth v. Ferguson, 011420 VACA, 1245-19-2
    • United States
    • Virginia Court of Appeals of Virginia
    • January 14, 2020
    ...the burden of showing that the circuit court's ruling constituted reversible error. See, e.g., Hairston v. Commonwealth, 67 Va.App. 552, 560 (2017). An appellate court reviews de novo the legal question whether double jeopardy bars a subsequent prosecution. See ......
  • Free signup to view additional results