Beasley v. Commonwealth

Decision Date17 July 2012
Docket NumberRecord No. 1534–11–1.
Citation60 Va.App. 381,728 S.E.2d 499
CourtVirginia Court of Appeals
PartiesVan Andre BEASLEY v. COMMONWEALTH of Virginia.

OPINION TEXT STARTS HERE

J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Steven A. Witmer, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: PETTY, BEALES and ALSTON, JJ.

BEALES, Judge.

Van Andre Beasley (appellant) was convicted in the trial court of possession of cocaine, in violation of Code § 18.2–250, and possession of heroin with intent to distribute (third or subsequent offense), in violation of Code § 18.2–248. Appellant argues on appeal that the trial court erred when it denied his motion to suppress these illegal drugs from the evidence admitted at trial. We disagree with appellant's argument, and, for the following reasons, we affirm the convictions.

I. BACKGROUND 1

During the overnight hours of June 19, 2010, Sergeant Lee Tennis of the Norfolk Police Department conducted a routine patrol of that city's Lexington Park area—a high-crime area noted for drug activity, gun violence, and homicides. Sergeant Tennis was very familiar with the Lexington Park area, and he had made narcotics arrests, recovered weapons, and responded to calls of shots being fired there.

At about 3:30 a.m., while driving his patrol car near the 900 block of Goff Street, Sergeant Tennis noticed a blue minivan that was legally parked on the street in front of the rental office of the Lexington Square apartment complex. Sergeant Tennis observed that there was a person in the driver's seat (Lawson) and a person in the back seat on the passenger's side (Bowman). In addition, Sergeant Tennis also noticed that a person wearing a long-sleeve white shirt and jeans was walking toward the minivan. At the time Sergeant Tennis noticed him, this person was [i]n the parking lot towards the rental office, right around the mailbox.” According to Sergeant Tennis, the area surrounding the apartment complex was clearly marked with no trespassing signs.

Sergeant Tennis continued on his patrol of the Lexington Park area—returning within five minutes to find that the minivan was still parked in the same place on Goff Street. From his vantage point in his patrol car, Sergeant Tennis observed Lawson, the driver of the minivan, appear “to bend down towards the center console of the van or where the center console would be.” Sergeant Tennis testified that Lawson's act of bending down in this way “kind of alerted me a little bit” given that the minivan was parked in a high-crime area. Sergeant Tennis then “illuminated the [minivan's] interior” with his patrol car's “right side alley light” and noticed that Lawson “was still bent down towards the center console.”

Sergeant Tennis's suspicions were also raised because he could see that there were now three people inside the minivan—Lawson in the driver's seat, Bowman in the back seat on the passenger's side of the vehicle, and, in addition, appellant in the front passenger's seat. Appellant was wearing a long-sleeve white shirt and jeans—the same type of clothes as the clothing worn by the person who had been walking towards the minivan a few moments earlier.

Sergeant Tennis exited his patrol car and approached the driver's side of the minivan.2 Illuminating the interior of the minivan somewhat with his hand-held flashlight, SergeantTennis observed appellant “reaching underneath his shirt.” Appellant also reached down with his right hand “towards the side of his seat, towards the back of the minivan.” Sergeant Tennis could not see what was in appellant's right hand from his vantage point.

“At that exact moment,” Sergeant Tennis testified, “I noticed that Mr. Bowman, who was seated right behind [appellant], began to reach towards the seat where” appellant was sitting. Bowman “was also reaching with his right hand towards [appellant's] right hand.” Sergeant Tennis testified that these “furtive movements” made him “very uneasy and very suspicious” because appellant and Bowman “were moving their hands all around”—raising the suspicion that they had a gun.” In his “extensive experience,” Sergeant Tennis explained to the trial court, when people move their hands in this type of furtive manner, they have either had narcotics or a weapon in the vehicle. Mainly a weapon.”

Sergeant Tennis told the minivan's occupants, “Let me see your hands. Put your hands in your laps.” Appellant initially complied with this instruction—as did the other two occupants. However, while Sergeant Tennis was waiting to determine if any of the minivan's occupants had outstanding arrest warrants, 3 the sergeant “noticed, once again, [appellant] take his hands and mov[e] [them] around.” Sergeant Tennis testified that appellant “once again tried to drop his hand down towards the right side of the seat,” like he was going to reach towards the back once again.”

Sergeant Tennis repeated his instruction to appellant “to put his hands back on his lap” where the sergeant could see them. However, Sergeant Tennis then “noticed that the passenger side window was down” and that appellant “had his hand rested slightly outside of that window.” Sergeant Tennis directed appellant, for a third time, to “put his hands on his lap and keep them that way.” At that point, according to Sergeant Tennis, appellant “complied.” Sergeant Tennis testified that appellant “didn't move his hands anymore.”

When Officer Simpson and Officer Folston arrived on the scene, Sergeant Tennis decided to conduct a pat down of the minivan's occupants to determine if they were carrying any weapons. The occupants were ordered out of the minivan so that the limited pat-down search for weapons could be conducted. However, appellant did not comply with Officer Folston's directions for conducting the pat down. According to Sergeant Tennis's testimony, appellant was not spreading his feet apart and was keeping his hands tense so that they could not be interlocked, contrary to Officer Folston's instructions to him.

Sergeant Tennis directed his flashlight at appellant's feet and noticed that there was a small, black, “change-type bag” mostly underneath appellant's right foot. Sergeant Tennis told appellant to lift his foot, but appellant refused. Sergeant Tennis tried “to slightly push his foot out,” but appellant “had his foot firmly planted on the ground.” When appellant ignored another command to move his foot, Sergeant Tennis then “used a lot more force” and “pushed his foot out, spreading his feet.” Sergeant Tennis then recovered the small bag, which contained heroin and cocaine.

Appellant moved to suppress the illegal drugs from the trial evidence—contending that he was seized without reasonable, articulable suspicion of criminal activity (and, therefore, that the illegal drugs must be suppressed as “fruit of the poisonous tree”). Sergeant Tennis was the only witness at the suppression hearing. At the conclusion of the suppression hearing, the trial court denied appellant's motion to suppress based on all of the circumstances presented in Sergeant Tennis's testimony—including the “furtive movement” that the sergeant observed, which the trial court found significant based on Sergeant Tennis's “lengthy experience.”

II. ANALYSIS
Standard of Review and General Fourth Amendment Principles

This Court reviews appellant's challenge to the denial of his motion to suppress under settled principles. The Virginia Supreme Court has explained:

When reviewing a denial of a motion to suppress evidence, an appellate court considers the evidence in the light most favorable to the Commonwealth and will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence. Sidney v. Commonwealth, 280 Va. 517, 520, 702 S.E.2d 124, 126 (2010). The defendant has the burden of showing that even when the evidence is reviewed in that light, denying the motion to suppress was reversible error. Id. at 522, 702 S.E.2d at 127. We review de novo the trial court's application of the law to the particular facts of the case. Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913, (2008).

Branham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 (2012). On appeal from the denial of a suppression motion, an appellate court should ‘give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.’ Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)).

“The Fourth Amendment guarantees, in relevant part, [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ Brooks v. Commonwealth, 282 Va. 90, 95, 712 S.E.2d 464, 466 (2011) (quoting U.S. Const. amend. IV).

However, [n]ot every encounter that the police have with a member of the public is a seizure.” Washington v. Commonwealth, 29 Va.App. 5, 10, 509 S.E.2d 512, 514 (1999). A consensual encounter between the police and an individual “will not trigger Fourth Amendment scrutiny unless it loses its consensual nature” and renders the person seized under the Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). Moreover, case law makes clear that a person is seized for Fourth Amendment purposes only when the person “is either physically restrained or has submitted to a show of authority.” McGee v. Commonwealth, 25 Va.App. 193, 199, 487 S.E.2d 259, 262 (1997) (en banc) (citing California v. Hodari D., 499 U.S. 621, 625, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991)).

Moss v. Commonwealth is Not Controlling Here

Appellant argues that he was seized under the Fourth Amendment before the encounter with Sergeant Tennis actually occurred—i.e., when Sergeant Tennis illuminated the interior of the...

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