Bethea v. Com., 921005

• Decision Date: 16 April 1993
• Docket Number: No. 921005,921005
• Citation: 429 S.E.2d 211,245 Va. 416
• Parties: George BETHEA, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 211

429 S.E.2d 211

245 Va. 416

George BETHEA, Jr. v. COMMONWEALTH of Virginia.

Record No. 921005.

Supreme Court of Virginia.

April 16, 1993.

Jody Ann Jacobson, Asst. Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen. on brief), for appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING, LACY, and HASSELL, JJ., and COCHRAN, Retired Justice.

LACY, Justice.

In this case we consider whether a police officer violated the Fourth Amendment rights of a passenger in a motor vehicle when the officer requested the passenger to get out of the vehicle during a lawful traffic stop.

On August 13, 1988, George Bethea, Jr., was riding in a vehicle operated by Tony Dodson. Dodson was driving south in the left-hand lane of Commerce Road in the City of Richmond. Sergeants Marvin T. Paulus and Harry F. Warren of the Richmond Police Department also were driving south in the same area of Commerce Road. The area was a known high-crime area, and the officers were on assignment, taking pictures for potential identification purposes of anyone who drew their "attention for any unusual circumstances."

The officers pulled alongside the passenger side of Dodson's vehicle. Observing Bethea in the front passenger seat "making faces", "moving his hands", and "waving" at the officers, they took pictures of his behavior. Warren, a 22-year veteran of the police department, testified that he had never seen similar behavior and that it had "startled" and "scared" him. The officers then observed that the Dodson vehicle had no City of Richmond registration decal and stopped the car for that reason.

At Paulus's request Dodson got out of the car. Warren went to Bethea's side of the car and asked Bethea to "please step out of the car" because he was concerned that Bethea might have had weapons in the car. When Bethea stepped out, Warren conducted a visual check and determined that Bethea was not armed. Warren directed Bethea to move to the front of the car and then asked the passenger in the back seat, Walter Robinson, to step out of the car as well. Warren testified that he felt safer once Bethea was outside the car.

A third policeman, Officer Duncan A. Pence, arrived on the scene, bringing Paulus the summons for the decal violation. Pence looked into the car and noticed loose grains of rice on the front floorboard. Pence testified that, based on his knowledge of drug distribution practices, he knew that rice is often used to keep powdered heroin and cocaine from absorbing moisture. Pence observed Bethea jumping on and off the front of the car, and repeatedly putting his hand in and around the waistband of his shorts. Pence approached Bethea and asked him to take his hands away from his waist. Pence told Bethea that he was going to pat down Bethea's waist area to check for weapons. As Pence pulled Bethea away from the car to begin the frisk, a plastic bag containing rice and several packets of cocaine fell from the left leg of Bethea's shorts.

Bethea was charged with possession of cocaine with intent to distribute. Code § 18.2-248. Bethea moved to suppress the cocaine from evidence, alleging that Warren violated his Fourth Amendment rights when he asked Bethea to get out of the car. Specifically, Bethea charged that Warren did not have sufficient cause to justify that request. The trial court denied the motion.

On March 10, 1989, at a bench trial, the court convicted Bethea of the charge against him and sentenced him to 15 years' imprisonment, with seven years' suspended. On April 16, 1991, a panel of the Court of Appeals reversed Bethea's conviction based on its finding that Warren violated Bethea's Fourth Amendment rights when he asked Bethea to get out of the car. Bethea v. Commonwealth, 12 Va.App. 303, 404 S.E.2d 65 (1991).

In a rehearing en banc, however, the Court of Appeals reversed the panel decision and affirmed the conviction. Bethea v. Commonwealth, 14 Va.App. 474, 419 S.E.2d 249 (1992). We awarded Bethea this appeal.

In reaching its decision, the Court of Appeals adopted the rationale of the United States Supreme Court in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In that case, the Supreme Court found that the intrusion on a driver's personal liberty by an officer's request to get out of a vehicle is de minimis when balanced against the "legitimate and weighty" interest of protecting the safety of policemen. Id. at 110, 98 S.Ct. at 333. Bethea contends that Mimms is not applicable here because it involved the Fourth Amendment interests of a driver, not a passenger, and that the Supreme Court concluded that the intrusion was de minimis because the driver's personal liberty interest was already compromised by the valid stop of the vehicle.

The Court of Appeals, in applying Mimms to this case, concluded that "the principles upon which [Mimms ] is based logically extend to encompass a passenger in a lawfully detained vehicle," and, after citing both federal and state cases, observed that state courts have "consistently held" that asking a passenger to get out of the car "is consonant with fourth amendment protections." Bethea, 14 Va.App. at 476, 419 S.E.2d at 251. Initially, we note that the Supreme Court specifically limited its holding in Mimms to circumstances in which a police officer orders the driver to get out of a vehicle after the vehicle has been lawfully stopped. Mimms, 434 U.S. at 111 n. 6, 98 S.Ct. at 336 n. 6. Further, our review of the cases cited by the Court of Appeals shows that the Mimms analysis often was not specifically addressed, see Foley v. Connelie, 435 U.S. 291, 297-98, 98 S.Ct. 1067, 1071, 55 L.Ed.2d 287 (1978); U.S. v. Taylor, 857 F.2d 210, 214 (4th Cir.1988) and that state courts have not uniformly adopted the Mimms rationale when considering the Fourth Amendment rights of passengers in vehicles, compare, e.g., State v. Becker, 458 N.W.2d 604, 607 (Iowa 1990) with State v. Landry, 588 So.2d 345, 346-47 (La.1991).

Nevertheless, we need not determine whether the de minimis rationale utilized in Mimms is applicable to a passenger in a vehicle when the initial vehicle stop is predicated solely on matters pertaining to the driver. The facts of this case only require the application of the more general principle that Fourth Amendment interests are not violated when a police officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Lansdown v. Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110 (1983), cert. denied, 465 U.S. 1104, 104 S.Ct. 1604, 80 L.Ed.2d 134 (1984) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)).

The totality of the circumstances we consider here, Lansdown, 226 Va. at 212, 308 S.E.2d at 112, included a traffic stop in a high-crime area; similar traffic stops by the same officers two days earlier in the same neighborhood where weapons were discovered in a car; Bethea's actions immediately prior to the stop; Warren's 22 years of experience and his statements that Bethea's actions "startled" and "scared" him; and Warren's concern that Bethea might have weapons in the car. These circumstances constitute "specific and articulable facts" which show that Warren was reasonably concerned for his safety and believed that Bethea might have had access to weapons with which to assault him. These facts justified the intrusion on Bethea's Fourth Amendment rights that occurred when Warren asked him to get out of the car.

The fact that Warren did not immediately pat down or frisk Bethea does not belie Warren's concern for his own safety, as Bethea contends. Warren stated that he felt safer with Bethea outside the vehicle not only because of Bethea's behavior, but also because of his concern that there might be weapons in the car.

For these reasons, we hold that Warren did not violate Bethea's Fourth Amendment rights when he asked Bethea to get out of the vehicle. Therefore, we will affirm the judgment of the Court of Appeals.

Affirmed.

HASSELL, J., dissenting.

HASSELL, Justice, dissenting.

The majority, applying the totality of circumstances test that we approved in Lansdown v. Commonwealth, 226 Va....