Clarke v. Com.

• Decision Date: 25 April 2000
• Docket Number: Record No. 0425-99-1.
• Parties: Jamar Duane CLARKE v. COMMONWEALTH of Virginia and City of Hampton.
• Court: Virginia Court of Appeals

527 S.E.2d 484

32 Va. App. 286

Jamar Duane CLARKE v. COMMONWEALTH of Virginia and City of Hampton.

Record No. 0425-99-1.

Court of Appeals of Virginia, Chesapeake.

April 25, 2000.

Charles E. Haden, Hampton, for appellant.

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellees.

Present: FITZPATRICK, C.J., and WILLIS and ANNUNZIATA, JJ. ANNUNZIATA, Judge.

The appellant, Jamar Duane Clarke, contends: 1) the trial court erred in denying his motions to suppress evidence concerning three distinct incidents; and 2) the trial court erred in finding the evidence sufficient to convict Clarke of the charged offenses arising from the March 12, 1998 and April 30, 1998 incidents. We find that the trial court correctly denied Clarke's motions to suppress, and we find the evidence sufficient to support his convictions. Accordingly, we affirm the decision of the trial court.

INCIDENT OF SEPTEMBER 6, 1997

Facts

On September 6, 1997, at approximately 12:30 a.m., Officer Christopher McIntire of the Hampton City Police encountered Clarke while Officer McIntire was investigating loud music being played in violation of a city ordinance. Officer McIntire, who was on uniformed bicycle patrol, determined the source of the music to be a van parked in the yard of a house located at the intersection of Lombard Street and Shell Road. He observed three men and one woman standing near the vehicle. When Officer McIntire approached the intersection, the four individuals near the van saw him and immediately separated and began to walk away. One of the van's doors stood ajar. When Officer McIntire approached it, he observed that the keys remained inside. The music emanated from the van's radio. McIntire and other officers on patrol with him decided to question the four individuals in regard to the loud music and in order to determine whether the van might be stolen. McIntire cited as grounds for reasonable suspicion on the latter point the careless manner in which the four persons abandoned the vehicle.

McIntire intercepted Clarke before Clarke was able to leave the immediate vicinity of the van. McIntire identified himself as a police officer and asked to speak to Clarke. McIntire detected the odor of alcohol on Clarke's breath and person. He also noticed that Clarke's eyes were bloodshot and observed that Clarke's voice rose and dropped in pitch and volume, leading him to believe Clarke was intoxicated. When McIntire asked Clarke to identify himself, Clarke gave a false name and refused to provide an address. McIntire decided to place Clarke under arrest for public drunkenness. When he reached for Clarke's left arm to place a handcuff on it, Clarke began to yell loudly and to physically resist the arrest. Sergeant Lewis, also of the Hampton City Police, was on patrol with Officer McIntire. When Lewis saw Clarke resisting arrest, he dismounted his bicycle and came to McIntire's assistance. Together the two officers subdued Clarke and placed him in handcuffs.

Upon cuffing Clarke, the officers searched Clarke incident to arrest to check for weapons. They discovered a handgun secreted in Clarke's clothing. Clarke again became disorderly, and the officers ultimately decided to place him in leg restraints, called "kick stops," to prevent Clarke from attempting to kick windows out of the patrol car in which he was placed.

Based on the above-stated course of events, Clarke was charged with carrying a concealed weapon, second or subsequent offense, and with resisting arrest. He was convicted of both charges in a bench trial on November 12, 1998.

Analysis

In appealing a denial of a motion to suppress evidence deriving from an illegal search without a warrant, an appellant must prove that the warrantless search violated his or her Fourth Amendment rights. See Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980). Generally, an officer may make a warrantless arrest if he or she has probable cause to believe that the arrestee has committed a crime. See Thompson v. Commonwealth, 10 Va.App. 117, 121, 390 S.E.2d 198, 201 (1990) (citing United States v. Watson, 423 U.S. 411, 423, 96 S.Ct. 820, 827-28, 46 L.Ed.2d 598 (1976)). An officer may search the arrestee incident to such lawful arrest. See DePriest v. Commonwealth, 4 Va.App. 577, 583, 359 S.E.2d 540, 543 (1987) (citing Illinois v. Lafayette, 462 U.S. 640, 646, 103 S.Ct. 2605, 2609-10, 77 L.Ed.2d 65 (1983)). If the officer lacked probable cause to arrest, however, any evidence seized pursuant to the arrest will be excluded from trial. See Lugar v. Commonwealth, 214 Va. 609, 611, 202 S.E.2d 894, 897 (1974).

In appropriate circumstances, an officer, lacking probable cause to arrest, may nevertheless approach a person he or she suspects of being engaged in criminal activity to investigate such activity. See Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2d 645, 647 (1992) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). An officer may detain a person in a "Terry stop" if the officer possesses articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, is engaging in one, or is about to engage in one. See Terry, 392 U.S. at 22,88 S.Ct. at 1880-81. In determining whether an officer had a particularized and objective basis for suspecting a person of criminal activity, a court must consider the totality of the circumstances. See United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981); Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722-23 (1997). The test for reasonable suspicion under Terry is less stringent than the test for probable cause. Reasonable suspicion can be established with information different in quantity or content than that required to establish probable cause. Reasonable suspicion differs from probable cause "also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Washington v. Commonwealth, 29 Va.App. 5, 12, 509 S.E.2d 512, 515 (1999) (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990)).

The subjective intent of a police officer in making a stop is irrelevant. If the officer had probable cause to arrest or reasonable suspicion to conduct a Terry stop, evidence of criminal activity arising from the detention may be admitted against the defendant. See Glasco v. Commonwealth, 257 Va. 433, 448, 513 S.E.2d 137, 146 (1999) (citing Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996)).

Officer McIntire testified that he heard loud music before he observed Clarke and others standing near the van. Because the Hampton ordinance makes the playing of loud music after 10:00 p.m. a misdemeanor offense, McIntire had reasonable suspicion, if not probable cause, to believe that a crime was being committed and that the four persons near the van were involved. At a minimum, McIntire had lawful grounds to detain¹ Clarke briefly while McIntire investigated the incident involving the van. In the course of questioning Clarke concerning the music and the van, McIntire detected the odor of alcohol on Clarke, observed his bloodshot eyes, and noted his erratic speech. These observations provided probable cause to arrest Clarke for public drunkenness. During the struggle with Clarke to subdue him, McIntire and another officer found a concealed weapon secreted on Clarke's person. Because "incriminating property lawfully seized during [a] warrantless search incident to arrest may be introduced in evidence," Commonwealth v. Brunson, 248 Va. 347, 357, 448 S.E.2d 393, 399 (1994), we find no error and affirm Clarke's concealed weapon conviction arising from the September 6, 1997 arrest. As Clarke physically resisted a lawful arrest, we likewise affirm his conviction on that charge.

INCIDENT OF MARCH 12, 1998

Facts

At approximately 3:00 a.m. on March 12, 1998, Officer Richard Sypher of the Hampton police was patrolling Shell Road in the City of Hampton. He observed three persons standing in the middle of the roadway, partly obscured by the shadow from a tree. Although he testified that these persons were not impeding traffic, Officer Sypher decided to investigate. When he turned his patrol car around and approached the persons, they separated. One of them, Clarke, got into a red two-door coupe bearing temporary license tags. Officer Sypher testified that, as he pulled up behind the vehicle, he thought the tags listed "March 10, 1998" as their expiration date. Because that date indicated they had expired, Sypher activated his emergency lights and ordered the vehicle to stop. Clarke complied with Officer Sypher's signal and stopped his car.

Officer Sypher parked his patrol car. As Sypher was rummaging for his flashlight, Clarke debarked his vehicle, turned, and faced Sypher's patrol car. As Sypher was about to speak to him, Clarke turned again and fled on foot. Sypher chased him some distance through a maze of residential privacy fences in an area bounded by Powhatan Parkway and Teach Street. As Sypher chased Clarke across Powhatan Parkway, he observed Clarke lifting his jacket and reaching for something secured in his waistband. As the two men approached a six-foot high privacy fence, Clarke threw the object he had removed from his waistband over the fence. At that point, Sypher ordered Clarke to lie flat upon the ground. Officer Sypher could only identify the object he had seen Clarke throw as a bundle roughly eight inches in length, "a fairly large object." As in the incident of September 6, 1997, Clarke resisted Officer Sypher's efforts to place him in custody. Two other officers arrived on the scene and helped Sypher subdue Clarke. Once Clarke was in custody, Officer Sypher investigated the other side of the...