Billups v. Commonwealth
| Decision Date | 05 May 2015 |
| Docket Number | Record No. 1037-14-1 |
| Court | Virginia Court of Appeals |
| Parties | WILLIE BILLUPS v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Humphreys, Beales and Decker
Argued by teleconference
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Susan Mozley Harris, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Willie Billups was convicted of possession of cocaine in violation of Code § 18.2-250. He contends that the trial court erred in denying his motion to suppress evidence because law enforcement did not have reasonable articulable suspicion of either criminal conduct or a traffic infraction to justify a stop of the vehicle in which he was a passenger. For the following reasons, we affirm the conviction.
"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." Branham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 (2012). Applying these principles, the evidence established the following.
On the morning of June 5, 2013, Investigators L.C. Heinzen and Keith Ryan ("the officers") of the Norfolk Police Department were on patrol in an unmarked police car in the Lafayette neighborhood of Norfolk. The officers were on their way to investigate suspected drug activity at a house in that neighborhood. Heinzen noticed a parked car on Grandy Avenue, with an unknown man ("first man") standing next to it. Heinzen saw this individual "meeting" with another unknown man ("second man") on the corner of Grandy Avenue and Tait Terrace. The officers parked in a lot across the street and continued to watch the two individuals. Heinzen used her binoculars to further observe the two men. She saw a hand-to-hand transaction between the individuals. Heinzen testified that she saw the second man hand the first man "something . . . cupped in his left hand." The officer was unable to specifically identify the object exchanged between the men. After the encounter, the first man went to the driver's seat of the car parked on Grandy Avenue, and "look[ed] towards his lap once he got in the vehicle." The interaction between the two men was brief, lasting less than a minute.
While Heinzen was watching the interaction through her binoculars, the appellant came into her line of sight. He arrived in a Honda and then walked over to the second man while the first man was walking away. Heinzen saw the appellant "meet up" with the second man, who had remained at the corner. According to Ryan, they appeared to have a brief conservation. The second man handed the appellant something "cupped in his right hand." This interaction lasted approximately thirty seconds. Ryan did not see the actual exchange that Heinzen saw through her binoculars, but he did see the appellant and the other individual standing very close to each other with their hands down low. He agreed that they could have been shaking hands.
After this encounter, the appellant went back to the Honda and got into the front passenger seat. The Honda proceeded to drive away, and shortly thereafter, Heinzen and Ryan stopped the car. Ryan asked for consent to search the car. The driver and the appellantconsented to a search. While Ryan was conducting the search, he was informed over the police radio that the appellant had an outstanding warrant. Ryan arrested the appellant based on the warrant. The officer then returned to his search of the vehicle. He discovered two "folded-up lottery tickets" with "an off-white substance" in both tickets in the pocket of the front passenger door. The appellant, who was seated in the back of a police car, motioned to Ryan to come over to him. He said to the officer, "[The] stuff that you found is just my cut." The substance was later determined to be cocaine.
At the suppression hearing, Heinzen testified that she had been employed by the Norfolk Police Department for eight years. Ryan testified that he had been with the department for thirteen years. They both had been working with the vice and narcotics team for approximately six years. Heinzen had witnessed approximately 100 to 200 hand-to-hand transactions over a period of six to eight years. Of those transactions, about nine out of ten either were determined to be drug transactions or led to drug arrests when further investigated. Ryan had observed, on the "low end," approximately twenty-five hand-to-hand transactions. After investigating these incidents further, he found evidence of drug activity "a majority of the time." According to the officers, the incident involving the appellant was very similar to the hand-to-hand transactions in other drug transactions they had encountered. Heinzen noted the similarity between the encounter involving the appellant and other hand-to-hand transactions, as both were "two people meeting for seconds and then parting ways."
Heinzen described the southern part of the Lafayette neighborhood as "an open-area drug market," where one "can just go to that area and request to purchase narcotics." She also agreed with the characterization of the neighborhood as a high-crime area. Ryan testified that the area was "known for drugs." The officers had both personally investigated drug activity in that area prior to this incident. Heinzen had conducted approximately ten drug arrests in the area. Ryanhad personally only handled one investigation in south Lafayette, but had "been involved in execution of search warrants . . . , arrests and several other things in that area." Further, he had participated in "several operations and search warrants within probably half-a-mile of that area."
Prior to trial, the appellant filed a motion to suppress the evidence. At the conclusion of the suppression hearing, the judge denied the motion. He found that this incident involved a high-crime, drug activity area and two hand-to-hand transactions. The judge concluded that these "two factors alone [were] sufficient, more than sufficient to indicate that [the officers] had articulable bases to believe that what they observed was a narcotics transaction." At the conclusion of the appellant's trial, the court found him guilty of possession of cocaine and sentenced him to three years in prison, with one year four months suspended.
The appellant argues that the trial court erred in denying his motion to suppress the evidence. Specifically, he contends that he was unlawfully seized because law enforcement officers did not have a reasonable articulable suspicion that he was engaged in criminal activity or had committed a traffic infraction.1
"In reviewing a trial court's denial of a motion to suppress, 'the burden is upon [the defendant] to show that the 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 banc) (alteration 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. at 197-98, 487 S.E.2d at 261 (quotingOrnelas v. United States, 517 U.S. 690, 691 (1996)). Similarly, "whether a defendant is seized in violation of the Fourth Amendment is a question that is reviewed de novo on appeal." Davis v. Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378 (2002). In conducting this review, the Court is "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.
The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. By stopping the vehicle in which the appellant was a passenger, the officers effected a seizure of the appellant under the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 653 (1979); Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). However, the Fourth Amendment prohibits only unreasonable searches and seizures. See, e.g., Buhrman v. Commonwealth, 275 Va. 501, 505, 659 S.E.2d 325, 327 (2008); Roberts v. Commonwealth, 55 Va. App. 146, 152, 684 S.E.2d 824, 827 (2009). Thus, the question before this Court is whether the stop and attendant seizure was reasonable under the facts and circumstances of the case.
"In order to justify an investigatory stop of a vehicle, the officer must have some reasonable, articulable suspicion that the vehicle or its occupants are involved in, or have recently been involved in, some form of criminal activity." Logan v. Commonwealth, 19 Va. App. 437, 441, 452 S.E.2d 364, 367 (1994) (en banc). The purpose of an investigatory stop is "to permit an officer with reasonable suspicion of criminal activity to quickly confirm or dispel that suspicion." Davis v. Commonwealth, 35 Va. App. 533, 539, 546 S.E.2d 252, 255 (2001). "'Actual proof that criminal activity is afoot is not necessary.'" Shiflett v.Commonwealth, 47 Va. App. 141, 146, 622 S.E.2d 758, 760 (2005) (quoting Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77, 79 (1992)). "A 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 (1968)). "However, it is something less than probable cause." Jackson, ...
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