Bethea v. Com.

• Decision Date: 16 April 1991
• Docket Number: No. 0371-89-2,0371-89-2
• Citation: 404 S.E.2d 65,12 Va.App. 303
• Parties: George BETHEA, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 65

404 S.E.2d 65

12 Va.App. 303

George BETHEA, Jr. v. COMMONWEALTH of Virginia.

Record No. 0371-89-2.

Court of Appeals of Virginia.

April 16, 1991.

Rehearing En Banc Granted May 30, 1991.

[12 Va.App. 304] Russell C. Williams, Asst. Public Defender, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, BENTON and COLEMAN, JJ.

BENTON, Judge.

George Bethea, Jr. was convicted at a bench trial for possession of cocaine with the intent to distribute. His appeal questions whether a police officer unreasonably detained him during a routine traffic stop of an automobile in which he was a passenger. We hold that the trial judge erred in overruling Bethea's motion to suppress.

Viewed in the light most favorable to the Commonwealth, Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), the evidence established that police officers Marvin T. Paulus and Henry F. Warren were in an unmarked automobile at 2:15 p.m., when they noticed Bethea and two other men in an automobile. Bethea was in the front passenger seat of the automobile. The officers were to the right of the automobile and headed in the same direction. Both officers testified that Paulus had a camera which he used to take photographs while the automobiles were side-by-side. Paulus testified that Bethea was waving and "making faces before [he] took the pictures." Paulus further testified that he was taking photographs because he and Warren "had just moved into that area, and [were] tak[ing] pictures of the people for identification."

Bethea and the other men in the automobile testified that when their automobile came to a stop at the traffic light, they saw two police officers in an unmarked automobile beside their automobile. They all testified that one of the officers had a camera in his hand and was taking pictures of them. Warren testified that Bethea "was making gestures before and during the picture taking." He also testified:

As we approached the car, Sergeant Paulus brought to my attention to look over here, and I looked to my left, and I observed Mr. Bethea, and he was making faces, moving his hands and things like this here, and first, it just really frightened me. I didn't know what was coming off.

Warren said that Bethea was not shaking his fist, pointing his finger, or making obscene gestures at the officers. During his testimony, Warren demonstrated the hand gestures to the trial judge. After Warren observed Bethea's actions, Warren then:

told Sergeant Paulus to pull back behind him a little bit. As we were pulling behind him, I checked his car. I wanted to see if there was anything suspicious. First thing I observed was the lack of a city sticker when we got back in the back of his car. I told Sergeant Paulus let's go ahead and pull him.

After the automobile stopped, Paulus walked to the driver's window and asked the driver to get out of the automobile and stand on the sidewalk. Paulus was standing in the street while talking to the driver. He testified that he asked the driver to exit the automobile in order that "he could get out of traffic" while talking to the driver. When Paulus learned that the driver did not have an operator's license with him, Paulus "ran [a] check through the Department of Motor Vehicles to be sure that he did have a driver's license." After about ten minutes, the dispatcher informed Paulus that the driver had a valid operator's license.

Warren had positioned himself on the automobile's passenger side. When he approached the automobile, Bethea did not say anything, make any threats, or resist. Warren described the scene:

I looked at Mr. Bethea first. I glanced into the car. I had--I didn't know at that time if there was a weapon or what in the car. Couple of seconds later I asked him, would you please step out of the car. I took him in position right in front of his door near the hood of the car. There was a passenger in the rear Warren did not frisk either passenger after they exited the automobile. As they were standing by the automobile, Officer Pence arrived at the scene. Pence testified that when he looked in the automobile, he saw rice in the front passenger seat and on the floor board. He testified "that rice is sometimes used to keep heroin and cocaine dry."

seat, so at this time I asked the passenger in the rear seat to step out of the vehicle.

Pence noticed that Bethea was holding his waistline and appeared to be adjusting something as he jumped onto the trunk of the automobile. Pence asked Bethea to move his hands within view and pulled Bethea away from the automobile to frisk him. At that moment, a bag containing cocaine fell from Bethea's shorts. After all three of the occupants were searched, Bethea was arrested. Pence then gave the driver a citation for not having a city license affixed to the automobile and allowed the driver and other passenger to depart.

The trial judge overruled Bethea's motion to suppress the cocaine, stating that the stop was justified. The judge stated that Bethea exited the automobile upon Warren's polite request and that Pence frisked Bethea after Pence developed a suspicion that Bethea might be carrying a weapon. The issue presented by this appeal is narrow because the Commonwealth concedes that when the police stopped the automobile Bethea was seized and detained for Fourth Amendment purposes. Further, Bethea does not contest the lawfulness of the initial stop. Thus, we address the sole issue whether it was unreasonable for Warren to ask Bethea to step out of the automobile under these circumstances.

Once an automobile has been stopped a police officer's request, albeit polite, that the occupants get out of the vehicle can only be interpreted as a command. See State v. Becker, 458 N.W.2d 604, 606-07 (Iowa 1990) (where the court construed an officer's request under similar circumstances to be an order). In this case, Warren testified that after asking Bethea to get out of the automobile he "took him in position at the front of his door near the hood of the car." Warren's display of authority refutes any suggestion that Bethea's movements were consensual. Thus, the question becomes whether Warren, in the course of a traffic stop, reasonably suspected that Bethea had committed, was committing, or was about to commit a felony or whether he criminally possessed a concealed weapon. If Warren did not have a suspicion of criminal activity, he improperly elevated the intrusion beyond the incidental restraint imposed by the traffic stop. ¹

"[I]n justifying the particular intrusion the police officer must be able to 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) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)), cert. denied, 465 U.S. 1104, 104 S.Ct. 1604, 80 L.Ed.2d 134 (1984). Prior to the stop, Warren observed Bethea making faces and moving his hands up and down. Neither officer testified that Bethea's actions were indicative of criminal conduct or suggested that a crime was occurring. Although Paulus testified that he took photographs of Bethea because he photographs "anyone that draws our attention for any unusual circumstance," none of the photographs were produced at trial. It is likewise a significant circumstance that Bethea's facial and hand gestures occurred contemporaneously with Paulus' attempt to obtain photographs of Bethea and his companions The record leaves unanswered whether Bethea saw the officers taking photographs before the officers first saw him and, thus, does not negate an inference that the gestures were prompted by the display of the camera. The facts do not create a reasonable suspicion that Bethea had committed, was committing, or was about to commit a felony. In addition, "the officer's action [must be] reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20, 88 S.Ct. at 1879. It is undisputed that Bethea's conduct was not the justification for the police stopping the automobile. The occupants of the automobile were not suspects of any reported crime. Compare Harris v. Commonwealth, 9 Va.App. 355, 388 S.E.2d 280 (1990), rev'd on other grounds, 241 Va. 146, 400 S.E.2d 191 (1991). The officers stopped the automobile because it did not display a city automobile license. There is no suggestion that the driver was considered to be a threat. Paulus testified that he asked the driver to exit the automobile and stand on the sidewalk in order to give Paulus protection from the traffic flow.

while taking "pictures of the people for identification." ²

We reject the Commonwealth's contention that Warren was justified in ordering Bethea out of the automobile for the officer's protection. Warren simply testified, without elaboration or explanation, that the facial and hand gestures frightened him. Paulus observed the same conduct and testified only that Bethea "was waving and making faces." The trial judge's observation that persons who make faces at police officers bear watching is too generalized a reason to conclude that Warren's subjective apprehension was reasonable.

When Warren approached the automobile, Bethea remained calm in the front seat, making no threatening statements or actions. The record does not reflect that Warren made an inquiry of Bethea regarding the face and hand gestures that he observed. There is no evidence of furtive gestures, belligerence, or uncooperative behavior by Bethea or the other passenger. Moreover, Warren did not testify that there was anything to indicate that Bethea may have been concealing a gun, knife, club, or other dangerous weapon. Compare Simmons v. Commonwealth, 217 Va. 552, 556, 231 S.E.2d 218, 220-21 (1977) (where the investigating officer...