Burgess v. Com.

• Decision Date: 18 August 1992
• Docket Number: No. 0846-91-1,0846-91-1
• Parties: Arnold BURGESS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 664

421 S.E.2d 664

14 Va.App. 1018

Arnold BURGESS v. COMMONWEALTH of Virginia.

Record No. 0846-91-1.

Court of Appeals of Virginia.

Aug. 18, 1992.

Albert W. Patrick, III, Hampton (Cumming, Hatchett, Moschel & Patrick, on brief), for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, BENTON and MOON, JJ.

BENTON, Judge.

Arnold Burgess appeals from his convictions for grand larceny and possession of cocaine. Burgess claims the trial judge erred (1) in dismissing his motion to suppress cocaine found in his jacket, and (2) in finding sufficient evidence to convict him of grand larceny. For the reasons that follow, we affirm the ruling on the motion to suppress and we reverse the grand larceny conviction.

I.

At 1:15 in the morning, police officers Mezo and Kangas responded to a complaint of vandalism in progress on a motel's parking lot. Upon arriving, the officers observed three individuals in the parking lot. One man, David Turner, was seated behind the wheel of a Mazda automobile. Burgess was standing outside the automobile with his arm leaning on the opened passenger door. The other man, who is unidentified on the record, was questioned and released. Mezo questioned Turner and Burgess, obtaining their addresses, birth dates, and social security numbers. Mezo testified that he made the following additional inquiries of Burgess:

Q Specifically directed to this defendant, Mr. Arnold Burgess, what was it that you asked him and what was his response?

A I asked Mr. Burgess why he was at the McThrift Motor Inn this evening, he said he was up there to see some friends. Then I asked Mr. Burgess whose vehicle that he was with. And he said Mr. Lewis Johnson. Then I asked him who Mr. Lewis Johnson was or where he went. He said, he didn't know where he lived and he didn't know where he went.

* * * * * *

Q And what was your questioning of Mr. Burgess at that point in time other than asking him his name, address and Social Security number?

A We asked him what occasion he had come to McThrift Motor Inn that evening. And we asked him whose car he was sitting in.

Q You asked him whose car he was sitting in, and he responded that he was sitting in a car?

A No, sir, he didn't. I asked him whose car that was that he was beside.

While Mezo questioned Burgess and Turner, the other officer approached the Mazda and observed that the ignition had been altered or "punched." Because the officers concluded that the Mazda might have been stolen, they frisked Turner and Burgess and placed them inside the police vehicle. The officers detained Burgess and Turner for forty minutes before obtaining verification that the Mazda had been stolen. While waiting for verification, Mezo also learned that Burgess had given him false identification. Mezo arrested Burgess and Turner for possession of a stolen automobile.

During further questioning at the station, Burgess stated that he did not know that the Mazda had been stolen. He gave no additional information about Lewis Johnson and could state no reason why he gave Mezo a false name. When Burgess was searched at police headquarters, two plastic envelopes of cocaine were discovered in his coat pocket. He was tried and convicted of larceny of the Mazda and possession of cocaine.

II.

Burgess first claims that the trial judge erred in failing to grant his motion to suppress the cocaine that was discovered in his jacket after his arrest. Burgess claims his detention in the police vehicle after the police began to suspect the Mazda had been stolen constituted a full custodial arrest without probable cause, thus invalidating the subsequent formal arrest and rendering inadmissible any contraband discovered during the search incident to arrest.

It is well established that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is not probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The record indicates that the police articulated facts which supported their initial detention of Burgess. The officers had received a report of vandalism and glass being broken in the parking lot. When the police approached Burgess, he was standing in the door of a Mazda opposite a row of cars where the officers had seen broken glass on the ground. As one officer was questioning Burgess, the other officer detected that the Mazda's ignition had been "punched" so as to allow it to be driven without a key. The officers could reasonably assume that the Mazda may have been stolen and that Turner, who was sitting behind the wheel, may have been implicated in its theft. After Burgess told the officers the Mazda belonged to Lewis Johnson, who was not the person behind the wheel and whose address Burgess could not supply, the officers also could have reasonably concluded that Burgess may have known something about the circumstances. With these known facts the officers had a basis upon which to detain Burgess while attempting to obtain additional information. " '[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly, while attempting to obtain additional information.' " DePriest v. Commonwealth, 4 Va.App. 577, 585, 359 S.E.2d 540, 544 (1987), cert. denied, 488 U.S. 985, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988) (quoting Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705 (1985)).

"In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). Burgess was detained for approximately forty minutes. Mezo testified that after detaining Burgess by placing him in the back of the police vehicle, he questioned Burgess and Turner about the reported vandalism and tried to ascertain if the Mazda had been reported stolen. When Officer Mezo learned the computers were down, he used the telephone in the motel's office to call police headquarters to determine if the Mazda had been reported stolen. Burgess does not claim that the police did not pursue their investigation diligently, nor does the evidence suggest any reason to believe the police could have more quickly determined whether the Mazda was stolen. The forty minutes delay was attributable to computer failure rather than any deliberate delay on the part of the police officers.

During the detention, the officers also learned that Burgess had not given them his correct name. He was found "standing next to [the stolen Mazda] with the door open with his arm on the window" and talking to a man behind the wheel who Burgess did not identify as the owner. Burgess gave the name of another person as the one who possessed the Mazda, did not know any other details about the person he identified, and gave the police a false name.

As an articulated legal standard, probable cause deals with probabilities concerning the factual and practical considerations in everyday life as perceived by reasonable and prudent persons. It is not predicated upon a clinical analysis applied by legal technicians. In determining whether probable cause exists courts will test what the totality of the circumstances meant to police officers trained in analyzing the observed conduct for purposes of crime control.

Hollis v. Commonwealth, 216 Va. 874, 876-877, 223 S.E.2d 887, 889 (1976).

We cannot say the trial judge erred in concluding that the officers had probable cause to make the arrest. Thus, the trial judge did not err in refusing to suppress the cocaine found in the search of Burgess' jacket.

III.

Although the trial judge did not err in finding the police had probable cause to arrest Burgess, the evidence is insufficient to prove that Burgess is guilty of larceny of the Mazda. The evidence proved that the Mazda was stolen in Hampton, Virginia, on December 3, 1990. Nine days later, Burgess was seen standing at the passenger side door talking to Turner who was sitting behind the wheel of the stolen Mazda. After Burgess' arrest, "he stated that he had been picked up in the car [and] did not know it had been stolen." The record contains no evidence to justify an inference that he knew the automobile was stolen. Burgess denied knowing that the Mazda was stolen. That Burgess was in the stolen Mazda nine days after the theft does not prove that Burgess either stole the Mazda...