Commonwealth of Va. v. Smith

• Decision Date: 21 April 2011
• Docket Number: Record No. 092561.
• Citation: 709 S.E.2d 139,281 Va. 582
• Parties: COMMONWEALTH of Virginiav.Corey Tayvon SMITH.
• Court: Virginia Supreme Court

281 Va. 582

709 S.E.2d 139

COMMONWEALTH of Virginia

v.Corey Tayvon SMITH.

Record No. 092561.

Supreme Court of Virginia.

April 21, 2011.

Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General, on brief), for appellant.Jessica M. Bulos, for appellee.Present: KINSER, C.J., HASSELL, LEMONS, GOODWYN, and MILLETTE, JJ., and LACY and KOONTZ, S.JJ.¹OPINION BY Justice LEROY F. MILLETTE, JR.

In this appeal, we address whether a frisk of a passenger conducted during a valid traffic stop was supported by reasonable suspicion based upon an alert by a police computer system that the passenger was “ probably armed and a narcotics seller/user.”

BACKGROUND

Corey Tayvon Smith was a passenger in a vehicle stopped on September 18, 2007 by Richmond police officers, Robert Hedman and Steven Moore, for a broken rear brake light. The officers asked the driver and Smith for their identification and processed that information using the Richmond police database known as PISTOL (Police Information System Totally On Line), which was accessed through a computer in the police patrol car. The PISTOL database returned an “alert” stating that Smith was “probably armed and a narcotics seller/user.” Upon receiving the PISTOL alert, Officer Moore asked Smith to “step out” of the vehicle and Smith complied. Smith denied having any weapons or drugs on his person in response to Officer Moore's inquiry. Officer Moore stated that he was going to pat Smith down to make sure he did not have any weapons. Smith replied to Officer Moore, “[Y]ou're not going to search me.” During the pat down, Officer Moore felt a gun in Smith's front left pocket. Officer Moore retrieved a .38 caliber “two-shot Derringer” from Smith's pocket.

Smith was arrested and charged with possession of a firearm by a convicted felon in violation of Code § 18.2–308.2. Prior to trial, Smith filed a motion to suppress the evidence obtained as a result of the pat down arguing that the search, based solely on the information obtained from the PISTOL database, was unreasonable and in violation of the Fourth Amendment to the United States Constitution. During the suppression hearing, Detective Timothy Neville testified that he obtained a warrant on October 18, 2006—eleven months before the incident at issue in this case—for Smith's arrest for possession of a firearm by a convicted felon. Detective Neville further testified that Officer Roger Harris arrested Smith on the warrant and placed the arrest information in the PISTOL system. Detective Neville stated that this information would have caused the alert “probably armed” to be put into the PISTOL system.

Smith argued that for a frisk to be lawful, it must be based upon reasonable suspicion of present criminal activity. Smith continued:

If this were to be allowed, basically anybody that's been convicted of a firearm offense within maybe a certain period of time, can be patted down with absolutely no other indication of suspicion for any other criminal activity any time the police come into contact with them. And I would suggest to the Court that that has to be clearly wrong.

In response, the Commonwealth argued that because PISTOL is the police's own system, “there is inherent[ ] [re]liability [and] that [the police] should be able to rely on [PISTOL alerts] when they are out in the field doing their work.” The Commonwealth further asserted the police should be permitted to use PISTOL alerts not only for determining whether criminal activity is afoot, but in order to protect themselves.

After hearing argument from counsel and taking the motion under advisement, the trial court denied Smith's motion to suppress, stating:

The Court believes that under the circumstances of the search, the stop being appropriate, and there not being any challenge to the stop, and the officer receiving information with regards to the fact that the person had been known to carry firearms, did not act impermissibly in conducting a pat-down in the search, and the same was appropriate for purposes of the officer's safety.

Smith entered a conditional guilty plea to the charge. At the hearing for the entry of the plea, the Commonwealth introduced a criminal conviction order showing that Smith had previously been convicted of both possession of a firearm by a person convicted of a felony, with an offense date of October 18, 2006, and possession of cocaine with intent to distribute, with an offense date of March 13, 2007.

On appeal to the Court of Appeals, Smith asserted that the trial court erred in denying his motion to suppress. The Court of Appeals agreed and reversed his conviction. Smith v. Commonwealth, 55 Va.App. 30, 54, 683 S.E.2d 316, 328 (2009). In considering whether Officers Hedman and Moore had reasonable suspicion to frisk Smith, the Court of Appeals held that the holding of United States v. Hensley, 469 U.S. 221, 229–33, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), “permits imputation of the knowledge of the officers who entered the information in the police department's PISTOL system to Officers Hedman and Moore.” Smith, 55 Va.App. at 42–43, 683 S.E.2d at 322. According to the Court of Appeals,

[t]he officers who entered the data into PISTOL were not shown to have done so based on any more information than that [Smith] had been arrested for possession of a firearm by a convicted felon for an incident that had occurred eleven months earlier and possession of cocaine with an intent to distribute for an incident that had occurred six months earlier.

Id. at 54, 683 S.E.2d at 328.

Even though knowledge of the two arrests was imputed to Officers Hedman and Moore, the Court of Appeals concluded that “in the absence of some contemporaneous indication that the individual might be carrying a weapon, these facts do not provide reasonable suspicion to believe he may be presently armed and dangerous.” Id. at 46, 683 S.E.2d at 324.

We awarded the Commonwealth this appeal.

DISCUSSION

In its appeal to this Court, the Commonwealth raised a number of assignments of error generally asserting that the PISTOL alert combined with the public's interest in officer safety qualified as sufficient reasonable suspicion to conduct a pat down search for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In our view, the record supports the conclusion that Officers Hedman and Moore had reasonable suspicion to justify the frisk.²

The standard of review in this case is well settled.

In reviewing the denial of a motion to suppress evidence claiming a violation of a person's Fourth Amendment rights, we consider the facts in the light most favorable to the Commonwealth, the prevailing party at trial. The burden is on the defendant to show that the trial court committed reversible error. We are bound by the trial court's factual findings unless those findings are plainly wrong or unsupported by the evidence. We will review the trial court's application of the law de novo.

Jones v. Commonwealth, 279 Va. 665, 670, 691 S.E.2d 801, 803 (2010).

As an initial matter, it is undisputed that the traffic stop was valid. The only issue in this case is whether the subsequent frisk was supported by reasonable suspicion.

Under settled constitutional principles, once a law enforcement officer has conducted a valid traffic stop, the officer is justified in conducting a frisk of the person for weapons if the officer reasonably suspects that the person stopped is armed and dangerous. Arizona v. Johnson, 555 U.S. 323, ––––, 129 S.Ct. 781, 784, 172 L.Ed.2d 694 (2009). In Johnson, the Court clarified that Terry stop and frisk principles apply to traffic stops:

[I]n a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

Id. at ––––, 129 S.Ct. at 784.

In explaining the officer's authority to conduct such a frisk, the Supreme Court has also stated:

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Terry, 392 U.S. at 27, 88 S.Ct. 1868 (citations omitted).

The Supreme Court recently reiterated its recognition that “traffic stops are especially fraught with danger to police officers.” Johnson, 555 U.S. at ––––, 129 S.Ct. at 786 (internal quotation marks omitted). Considering the danger posed to officers during traffic stops, the Supreme Court has held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures.” Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

Twenty years later, the Supreme Court extended the Mimms rule to passengers, holding that an officer may order passengers to get out of the vehicle during a valid traffic stop. Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). In Wilson, the Court recognized that “the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a...