Commonwealth v. Augustus

Decision Date25 September 2015
Docket NumberCriminal Docket No.: CR14-809
CourtCircuit Court of Virginia
PartiesRe: Commonwealth of Virginia v. Jevon Glenn Augustus, Sr.

Ramin Fatehi, Esq.


City of Norfolk

800 East City Hall Avenue, Suite 600

Norfolk, Virginia 23510

Andrew A. Protogyrou, Esq.


BB&T Building, Suite 1520

500 Main Street

P.O. Box 3205

Norfolk, Virginia 23514

Dear Counsel:

Today the Court rules on the motion filed by Defendant Jevon Glenn Augustus, Sr. ("Augustus") seeking to suppress evidence discovered during a vehicular stop and subsequent custodial search (the "Motion to Suppress"). The issues before the Court are: (1) whether there was reasonable, articulable suspicion that Augustus had been involved in a drug transaction to support an investigatory detention; (2) whether evidence of his subsequent alleged traffic infractions is admissible; (3) whether there was reasonable, articulable suspicion that he had committed traffic infractions to support an investigatory detention; (4) whether evidence of his alleged obstruction of justice is admissible; and (5) whether evidence from the drug-dog search and custodial search is admissible. The Court finds: (1) reasonable, articulable suspicion that Augustus was involved in a drug transaction did not exit; (2) evidence of the alleged traffic infractions is fruit of the poisonous tree and therefore is suppressed; (3) reasonable, articulable suspicion that he committed the alleged traffic infractions did not exist; (4) evidence of his alleged obstruction of justice is admissible; and (5) evidence from the drug-dog search and custodial search is not admissible.

Based on the totality of the circumstances, the Court GRANTS the Motion to Suppress except for evidence related to the events constituting Augustus's alleged obstruction of justice.


On January 4, 2014, Norfolk Vice and Narcotics Division Investigators B.P. Allison and J.A. McCarthy (the "Investigators") were parked in an unmarked police vehicle near the corner of Kincaid Avenue and Aspin Street in the City of Norfolk, an intersection described by one of the Investigators as a "suspected drug location."1 (Tr. 15, 36, 93-94). At approximately 11:38 p.m., a pickup truck driven by Augustus2 drove down Aspin Street and pulled over on the side of the road near a multi-unit housing complex.3 (Tr. 16). An individual approached the truck from the direction of the complex, opened the truck's passenger-side door, "leaned into the vehicle for a very brief period of time," shut the door he had opened, and "ran back towards where he came from." (Tr. 17). The truck departed immediately thereafter. (Tr. 17). From their vantage point, the Investigators could not see what transpired within the cabin of the truck4 and could not determine whether the individual who had approached the truck had anything in his hands before or after reaching into the truck. (Tr. 51-52). At no time during the encounter with the individual did the Investigators observe Augustus move within the truck cabin or observe the individual and Augustus touch or pass anything. (Tr. 53-54).

One of the Investigators notified Investigator R.W. Gillespie ("Gillespie")—who was in another unmarked car in the vicinity—that they had observed a narcotics transaction and asked Gillespie to assist in pulling over the truck. (Tr. 61-62, 94). Gillespie immediately sighted the truck and began following it. (Tr. 95). The Investigators' vehicle soon caught up and fell in behind Gillespie's vehicle. (Tr. 62-63). Gillespie activated his emergency equipment5 to initiate a stop based on the alleged drug transaction. (Tr. 96). Investigator Allison energized the Investigators' vehicle emergency equipment once he saw that Gillespie did the same. (Tr. 63). Testimony at the September 3, 2015, hearing indicated that the following occurred after Gillespie activated his vehicle emergency equipment: the truck sped up a little, but stayed under the posted speed limit; Augustus at one point appeared to "be almost standing up" behind thewheel; and the truck weaved several times within its lane.6 (Tr. 65-66, 96-98, 104). Gillespie testified that the truck was "a full size, one of the really large, like dually-type pickup truck[s]"7 and that when he observed it, the truck "filled up the entire lane almost." (Tr. 108). He further testified that: Augustus's actions after the emergency equipment was energized were not "outlandish"; the weaving was the extent of any sort of traffic violation; and his stop was based solely on the alleged drug transaction. (Tr. 105-07). Augustus stopped his truck less than two blocks after Gillespie activated his emergency equipment. (Tr. 65, 109).8 After the stop and after he realized Augustus would not consent to a vehicular search, Investigator Allison called for a drug dog and handler. (Tr. 73).

When approached after the stop, Augustus was minimally cooperative. (Tr. 99-100, 122). He merely cracked the driver-side truck window "just a little bit about maybe an inch" in order to pass through his driver's license and registration. (Tr. 99). According to Gillespie, Augustus appeared nervous, was breathing heavily, was staring straight ahead and wouldn't make eye contact, and was "a little shaky." (Tr. 99-100). When the drug dog and its handler, Investigator D.W. Todd ("Todd"), arrived, Augustus was asked to exit the truck;9 he refused. (Tr. 24). In light of the circumstances, Todd elected to conduct the narcotics sweep with Augustus still in his truck,10 and the dog subsequently alerted on the truck's driver-side door handle. (Tr. 151-52). Augustus again was asked to exit the truck, and he again refused. (Tr. 31). Augustus was informed that by not exiting the truck as instructed, he was obstructing justice; Augustus still remained in his truck. (Tr. 88). Investigator Allison then broke the truck's passenger-side window and unlocked the passenger-side door,11 and several law enforcement personnel forciblyAugustus removed from the vehicle and placed in custody.12 (Tr. 31, 78-80, 124). Investigator McCarthy searched Augustus's person, felt a suspect object in Augustus's groin area, and informed Augustus that he would be taken to the Police Operations Center (the "POC"), where the item would be retrieved.13 (Tr. 125-26). Augustus subsequently was taken to the POC, where another custodial search was conducted; the suspect object—which turned out to be cocaine—fell from Augustus's pants during the search. (Tr. 127-28). Augustus was charged with possession of cocaine and obstruction of justice.

Augustus subsequently filed the Motion to Suppress that is the subject of this Opinion, along with a supporting brief. The parties were before the Court for a hearing on September 3, 2015. The Court granted leave for the parties to file post-hearing briefs; Augustus filed a brief, but the Commonwealth elected not to do so.

Positions of the Parties
Defendant's Motion to Suppress

During the hearing and in his pre- and post-hearing briefs in support of his Motion to Suppress, Augustus argued that the Investigators lacked reasonable, articulable suspicion to stop him based on the alleged drug transaction. He claimed that—contrary to claims by the Investigators—the location of the housing complex at which he stopped was not within a high-drug neighborhood and that there was no evidence of a drug transaction. According to Augustus, the Investigators at best were reacting to a "hunch" and not on reasonable, articulable suspicion of a drug transaction. He also asserted that the alleged traffic infractions—speeding up, standing up, and weaving—did not in fact constitute criminal activity and that, in any case, the alleged infractions occurred only after Gillespie activated his emergency equipment while pursuing an unconstitutional stop. Augustus further argued that his actions after the stop did not constitute obstruction of justice and that the custodial search was not justified.

Augustus requests that the Court suppress all evidence and statements resulting from the stop and the subsequent custodial search.

Commonwealth's Response

At the hearing,14 the Commonwealth argued that reasonable, articulable suspicion existed to stop Augustus based on the suspected drug transaction. Specifically, the Commonwealth claimed that the stop was supported by the unusual actions taken at a roadside at night in a high-drug neighborhood during a very short period of time. The Commonwealth further asserted that even if there were not reasonable suspicion of a drug transaction, Augustus committed traffic infractions that provided the reasonable suspicion necessary to support an investigatory detention. The Commonwealth also argued that Augustus's actions after the stop constituted obstruction of justice and that the drug-dog alert provided probable cause, either of which justified the custodial search of Augustus that yielded the drugs.

Legal Standard

Pursuant to the exclusionary rule, evidence must be suppressed if it is seized by the government in violation of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). A court shall exclude evidence that was obtained either: (1) as a direct result of an illegal search and seizure; or (2) as a proximate result of an illegal search and seizure. Wong Sun v. United States, 371 U.S. 471, 485-86 (1963). For Fourth Amendment purposes, a search or seizure typically requires a warrant, and the required standard of proof for issuance of such a warrant is probable cause. U.S. Const. amend. IV.

Police can detain a person without probable cause if there is reasonable, articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 22 (1968). In determining whether an officer had an objective basis for reasonable, articulable suspicion, a court must consider the totality of the circumstances. Whitaker v. Commonwealth, 279 Va. 268, 274, 687...

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