Andrews v. Com.
| Citation | 559 S.E.2d 401,37 Va.App. 479 |
| Decision Date | 12 February 2002 |
| Docket Number | Record No. 2085-00-1. |
| Court | Virginia Court of Appeals |
| Parties | Travis Wesley ANDREWS v. COMMONWEALTH of Virginia. |
(Michael P. Jones, on brief), Newport News, for appellant. Appellant submitting on brief.
Michael T. Judge, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Present: BRAY, FRANK and CLEMENTS, JJ.
Travis Wesley Andrews was convicted in a bench trial of robbery, in violation of Code § 18.2-58, abduction, in violation of Code § 18.2-48, two counts of use of a firearm during the commission of a felony, in violation of Code § 18.2-53.1, possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2, resisting arrest, in violation of Code § 18.2-460, and carrying a concealed weapon, in violation of Code § 18.2-308(A). On appeal, Andrews contends (1) the trial court erred in denying his motion to suppress the gun as the product of an illegal search and seizure and (2) he was denied due process of law because, after successfully challenging his initial convictions, he was prosecuted on retrial for two additional charges that were known at the time of the original prosecution. For the reasons that follow, we affirm the convictions.
We view the evidence relevant to the motion to suppress and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party prevailing below. See Weathers v. Commonwealth, 32 Va.App. 652, 656, 529 S.E.2d 847, 849 (2000)
. So viewed, the evidence established that, on the night of January 13, 1996, Lieutenant Larry Wilson, a fourteen-year police veteran who commanded the special investigations unit of the Suffolk City Police Department, was in charge of a selective enforcement detail working in a residential, racially mixed area of Suffolk known as College Square. Wilson testified at the suppression hearing that the detail of six officers was working in the College Square area because several armed robberies of food-delivery drivers had taken place there in the prior months. The most recent of those robberies, reportedly committed by several young African American males acting in concert, had occurred on January 11, 1996.1
At approximately 8:45 p.m., patrolling the College Square area in an unmarked police car behind two marked police cars, Wilson observed three young African-American males walking down Brookwood Drive toward the police vehicles.2 The two marked police cars stopped, and uniformed officers got out of those cars and approached the three individuals. Two of the individuals stopped to talk to the officers, but the third, Andrews, continued walking down the street without conversing with the officers or looking back at them, Wilson testified that he "thought that was somewhat odd that [Andrews], out of the group of three, would continue to walk."
When Andrews reached Wilson's car, Officer John DeBusk, with whom Wilson was patrolling, asked Andrews if he could talk to him. Andrews continued walking past the car without responding. Wilson then got out of the car and, walking "to him at an angle," approached Andrews from the front. DeBusk, who followed Wilson from the car, initially remained behind and to the side of Wilson during the encounter. Upon Wilson's approach, Andrews stopped walking and Wilson engaged him in conversation. Wilson testified that, in approaching Andrews, he did not "ask [Andrews] to stop" or "place [his] hands on him in any way."
Wilson, who was in plainclothes with his badge displayed, identified himself as a police officer and asked Andrews his name. Andrews, who was carrying a small cassette player and a tape in his hand, replied that his name was Travis Morton. Asked by Wilson where he lived, Andrews pointed to a duplex farther down the street but could not identify the numerical address, indicating he had been living there only a short time with his cousin. When asked again where he lived, Andrews did not respond. Asked how old he was, Andrews said he was eighteen. Wilson testified that Andrews "looked extremely young" and "did not appear to be eighteen."
While talking to Andrews, Wilson noticed that Andrews "had something extremely heavy in the center pocket" of his jacket. According to Wilson, Andrews appeared, despite having the cassette player and tape in his hand, to be trying to support the object against his body so it would not hang down in the pocket. Wilson testified that, when not supported, the item moved forward in the pocket and was noticeably heavy.
Wilson stated that, based on Andrews' suspicious conduct, including his leaving his companions behind when they stopped to talk with the police, his trying to support the object in his pocket to make it less noticeable, and his dubious responses to the questions posed about his residence and age, in conjunction with the noticeably heavy weight of the object in Andrews' pocket, he "felt [Andrews] had a weapon" in his pocket. Concerned for his safety, Wilson asked Andrews "if he had any knives, guns, or hand grenades on his person" and "told him to place his hands out to his sides." Andrews stated that Wilson was not going to search him, and Wilson agreed, explaining that he was going to "only pat him down for weapons." Andrews extended his arms to his sides. Wilson "reached directly for the center pocket," touched the outside of it, and "knew right away that it contained a gun." He informed DeBusk that he had located a gun, and the two officers escorted Andrews to the front of the police car. After directing Andrews to place his hands on the hood of the car, Wilson removed a fully loaded .22 caliber handgun with a sawed-off barrel from the center pocket. Wilson then placed Andrews under arrest for possession of a concealed weapon. Once in custody, Andrews gave the officers his correct name and informed them he was only sixteen years old.
Andrews testified at the suppression hearing that he kept walking when first approached by the uniformed police officers because they asked to speak solely with one of his companions. Andrews further testified that a plainclothes officer subsequently approached him from the front with another plainclothes officer not "too far behind." Andrews stated that he stopped initially and the first plainclothes officer asked if he could search him. Andrews asked the officer why he wanted to search him and continued walking past the officer. According to Andrews, the second plainclothes officer then asked if he could search Andrews. Andrews told the officer he had no reason to search him and kept walking. Andrews testified that the second officer then reached for the center pocket of his jacket.
In 1996, Andrews was convicted of robbery, use of a firearm in the commission of a felony, possession of a firearm by a convicted felon, carrying a concealed weapon, resisting arrest, and possession of a handgun by a minor.3 He was sentenced to thirty-one years in prison, with twenty years suspended on certain terms and conditions. Andrews' convictions were subsequently vacated in accordance, apparently, with our decision in Baker v. Commonwealth, 28 Va.App. 306, 504 S.E.2d 394 (1998), aff'd per curiam, 258 Va. 1, 516 S.E.2d 219 (1999)
.4
On May 26, 2000, Andrews was retried for the same criminal conduct upon which the 1996 convictions were based. Prior to trial, Andrews moved to suppress the gun as the product of an illegal search and seizure. The trial court denied the motion, finding that Officer Wilson had reasonable suspicion sufficient to justify an investigative stop and patdown search of Andrews. Andrews was subsequently tried and convicted of robbery, abduction, two counts of use of a firearm during the commission of a felony, possession of a firearm by a convicted felon, resisting arrest, and carrying a concealed weapon. The trial court imposed a total sentence of forty-five years in prison, twenty-nine years of which were suspended on certain terms and conditions. This appeal followed.
"In reviewing a trial court's denial of a motion to suppress, `[t]he burden is upon [the defendant] to show that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.'" McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) (en band) (alterations in original) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). "`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." Id. (quoting Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996)). "Similarly, the question whether a person has been seized in violation of the Fourth Amendment is reviewed de novo on appeal." Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000). However, "we are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee, 25 Va.App. at 198, 487 S.E.2d at 261 (citing Ornelas, 517 U.S. at 699, 116 S.Ct. 1657).
Andrews contends he was seized by Officers Wilson and DeBusk when they approached him from the front and started asking him questions. That seizure, he further contends, violated his Fourth Amendment rights because it was not based on a reasonable, articulable suspicion that he was engaged in criminal activity or armed and dangerous. Thus, he concludes, the trial court erred in refusing to suppress the gun, a product of the unlawful seizure.
The Commonwealth contends that the encounter was initially consensual and that Andrews was not seized until...
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