Coleman v. Commonwealth, Record No. 2021-07-2 (Va. App. 10/14/2008)
| Decision Date | 14 October 2008 |
| Docket Number | Record No. 2021-07-2. |
| Court | Virginia Court of Appeals |
| Parties | CHRISTOPHER RICHMOND COLEMAN v. COMMONWEALTH OF VIRGINIA. |
Appeal from the Circuit Court of the City of Richmond, Beverly W. Snukals, Judge.
Catherine French, Assistant Public Defender (Karen L. Stallard, Supervising Appellate Defender; Office of the Public Defender, on brief), for appellant.
J. Robert Bryden, II, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges Elder, Frank and Clements
Christopher Richmond Coleman (appellant) appeals from his bench trial convictions for possession of oxycodone, possession of heroin with intent to distribute, possession of a firearm while in possession of heroin, possession of a firearm by a convicted felon, and obstruction of a law enforcement officer in the performance of his duty. On appeal, he argues the trial court erroneously denied his motion to suppress because the officers lacked probable cause to arrest or, alternatively, that if they had probable cause, they were required to release him on a summons. He also contends he was authorized to resist the arrest because it was unlawful and that, even if it was not unlawful, the evidence was insufficient to support his conviction for obstruction.
We hold the trial court did not err in denying the motion to suppress because, even assuming the arrest and search violated state law requiring release on a summons, the officers had probable cause to believe appellant committed the misdemeanor of possessing a concealed weapon and, thus, the arrest and search did not run afoul of the United States or Virginia Constitution. We also hold the evidence supported appellant's conviction for obstructing a law enforcement officer in the performance of his duties. Accordingly, we affirm the challenged convictions, subject to remand solely for correction of a clerical error in the conviction and sentencing orders.1
On appeal of a ruling on a motion to suppress, we view the evidence in the light most favorable to the prevailing party, here the Commonwealth. Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). "In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all . . . evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988). "[W]e are 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 v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). However, we review de novo the trial court's application of defined legal standards, such as whether the police had reasonable suspicion or probable cause for a search or seizure. Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911, 920 (1996); see also, e.g., Lowe v. Commonwealth, 230 Va. 346, 348 n.1, 337 S.E.2d 273, 275 n.1 (1985) ().
Here, the trial court implicitly found the officers had first reasonable suspicion and then probable cause to believe appellant possessed a weapon that was concealed in violation of Code § 18.2-308, and the evidence and reasonable inferences therefrom supported that finding. Pursuant to Code § 18.2-308,
If any person carries about his person, hidden from common observation, (i) any pistol, revolver, or other weapon [as defined in the statute] . . ., he shall be guilty of a Class 1 misdemeanor. . . . For the purpose of this section, a weapon shall be deemed to be hidden from common observation when it is observable but is of such deceptive appearance as to disguise the weapon's true nature.
Code § 18.2-308(A). We have held that where the handle of a weapon protruded from an individual's back pocket but was largely obscured by a duffel bag hanging from the individual's shoulder, "the weapon was hidden from common observation." Main v. Commonwealth, 20 Va. App. 370, 372-73, 457 S.E.2d 400, 401-02 (1995) (en banc); see also Slayton v. Commonwealth, 41 Va. App. 101, 106-07, 582 S.E.2d 448, 450-51 (2003) (). Although that statute provides for the issuance of a "permit to carry a concealed handgun," it states that only persons "21 years of age or older may apply" for such a permit. Code § 18.2-308(D).
An officer may effect an investigatory detention upon reasonable suspicion that the detainee is "`subject to seizure for violation of the law.'" Murphy v. Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989) (quoting Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979)). In order to justify an investigatory detention, an "officer must be able to articulate more than an `inchoate and unparticularized suspicion or "hunch,"'" Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570, 576 (2000) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968)), but the articulable suspicion "need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard," United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 751, 151 L. Ed. 2d 740, 750 (2002).
An officer who develops such reasonable suspicion concerning a person may "detain him briefly[] while attempting to obtain additional information" in order to confirm or dispel his suspicions. Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705, 711 (1985). Even "[b]rief, complete deprivations of a suspect's liberty, including handcuffing, `do not convert [an investigative detention] into an arrest so long as the methods of restraint used are reasonable to the circumstances.'" Thomas v. Commonwealth, 16 Va. App. 851, 857, 434 S.E.2d 319, 323 (1993) (quoting United States v. Crittendon, 883 F.2d 326, 329 (4th Cir. 1989)), aff'd on reh'g en banc, 18 Va. App. 454, 444 S.E.2d 275 (1994).
Probable cause, although requiring a higher quantum of evidence than reasonable suspicion, nevertheless
relates to probabilities that are based upon the factual and practical considerations in everyday life as perceived by reasonable and prudent persons. The presence or absence of probable cause is not to be examined from the perspective of a legal technician. Rather probable cause exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed.
Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981). " " Slayton, 41 Va. App. at 107, 582 S.E.2d at 451 (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 2d 1879, 1890 (1949) (citations and internal quotation marks omitted)). Thus, evidence sufficient to provide probable cause to arrest for a crime need not be evidence sufficient to convict for that offense. Id.
The evidence and the reasonable inferences therefrom, viewed in the light most favorable to the Commonwealth, support a finding that when the officers forcibly removed appellant from the vehicle, they had reasonable suspicion to believe he was carrying a weapon that was concealed within the meaning of the statute. When the officers first turned onto the street where the car was improperly parked and observed the argument taking place, appellant was wearing a flight jacket that came down to "waist level," and none of the officers observed the weapon in appellant's rear pocket. Officer Neville testified he first saw what he thought was the butt of a firearm protruding from appellant's rear pants pocket "[a]s [appellant] got into the back [of the improperly parked car], as he sat down." (Emphasis added). A reasonable inference from this evidence is that the handle of the firearm was partially obscured by appellant's jacket until he began to climb into the back seat of the vehicle. Officer Neville relayed to Officers Verbena and Fitzpatrick what he thought he had seen. Only after Officer Verbena examined appellant's identification, which indicated appellant was eighteen years old, did Officers Verbena and Neville remove appellant from the vehicle. Thus, when the officers seized appellant to remove him from the vehicle, they knew he was eighteen years old, and they had reasonable suspicion to believe he was carrying a concealed weapon without a permit in violation of the statute.
This reasonable suspicion justified their removing appellant from the vehicle by force in order to permit them to investigate further, and once they did so, Officer Neville immediately saw a semiautomatic handgun where appellant had been sitting.2 At that time, the officers had probable cause3 to believe appellant had been carrying a weapon that was concealed within the meaning of the statute.4
We need not consider whether appellant's arrest violated Code § 19.2-74, which requires that an individual arrested for a Class 1 misdemeanor be released on a summons unless one of several statutory conditions applies. Even assuming the terms of Code § 19.2-74 entitled appe...
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