Cost v. Com.

• Decision Date: 29 February 2008
• Docket Number: Record No. 070496.
• Citation: 275 Va. 246,657 S.E.2d 505
• Parties: Darrio L. COST v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

657 S.E.2d 505

275 Va. 246

Darrio L. COST v. COMMONWEALTH of Virginia.

Record No. 070496.

Supreme Court of Virginia.

February 29, 2008.

Sonya Weaver Roots (Weaver Law Offices, on brief), Portsmouth, for appellant.

Eugene Murphy, Senior Asst. Atty. Gen. (Robert F, McDonnell, Atty. Gen., on brief), for appellee.

Present: All the Justices.

OPINION BY Justice LAWRENCE L. KOONTZ, JR.

In this appeal, we consider whether the Court of Appeals erred in affirming a circuit court's judgment denying a motion to suppress evidence seized by a police officer from inside the defendant's pants pocket during a "pat-down" search. The sole issue presented is whether the officer had sufficient probable cause to seize a number of capsules based upon his assertion that by the "plain feel" of the capsules he knew, through his training and experience, that they contained an illegal drug packaged in capsule form.

BACKGROUND

The pertinent facts in this case are not in dispute. Around 12:40 a.m. on December 14, 2004, Portsmouth Police Officer B.C. Davis, who was assigned as a full-time agent of the Portsmouth Redevelopment and Housing Authority with responsibility for patrolling residential developments of the Authority, approached Darrio L. Cost, who was sitting in the passenger seat of a vehicle parked in a parking lot designated for residents of the Jeffry Wilson housing complex. This property was owned by the Authority. As Davis approached the vehicle's passenger side window, he observed as Cost "immediately reach[edj across his body towards his left front pants pocket." Davis asked Cost what he was reaching for, but Cost did not answer. Davis told Cost "to' get away from" his pocket, but Cost reached toward the pocket again. Davis then directed Cost to exit the vehicle.

Upon exiting the vehicle, Cost immediately told Officer Davis, "[y]ou can't search me, but you can pat me down." Davis conducted a "pat down" search of Cost for concealed weapons. In doing so, Davis immediately frisked the left front pants pocket toward which Cost had been reaching. When Davis touched the pocket, he felt numerous capsules inside. Davis reached into Cost's pocket and removed a plastic bag containing twenty capsules. Subsequent analysis of' the contents of those capsules showed that they contained heroin.

Cost was indicted by a grand jury in the Circuit Court of the City of Portsmouth on the charge of possession of heroin with the intent to distribute in violation of Code § 18.2-248. Prior to trial, Cost moved to suppress the heroin capsules seized from his person during the pat-down search, claiming they were discovered in violation of his rights under the Fourth Amendment. At the suppression hearing, Officer Davis testified that he had been a police officer for approximately four and a half years. Davis testified that he did not feel what he thought to be a weapon in Cost's pocket and that he did not think that there was a weapon in that pocket after he felt the capsules there. Davis contended that upon feeling the capsules in Cost's pocket he "knew" that they were heroin because "[t]hrough my training and experience, I know that that's what heroin is packaged in." On cross-examination, Davis admitted that over-the-counter medications such as "Motrin, Tylenol, or something along those lines" are sometimes "packaged in capsules."

The circuit court denied Cost's motion to suppress the evidence seized from his person. Cost was tried without a jury and found guilty of the offense charged in the indictment. The circuit court sentenced Cost to ten years imprisonment, with a portion of the sentence suspended. Cost appealed his conviction to the Court of Appeals challenging the circuit court's failure to suppress the evidence. The Court of Appeals affirmed the conviction in a published opinion, Cost v. Commonwealth, 49 Va.App. 215, 638 S.E.2d 714 (2006). We granted Cost this appeal.

DISCUSSION

A defendant's claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo on appeal. Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002); Bolden v. Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002); McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d 541, 545 (2001); see also Ornelas v. United States, 517 U.S. 690, 691, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In making such a determination, we give deference to the factual findings of the circuit court, but we independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment. Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at 545; Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000). The defendant has the burden to show that, considering the evidence in the light most favorable to the Commonwealth, the circuit court's denial of his suppression motion was reversible error. Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at 545; Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).

Cost does not dispute that during an investigative stop, a law enforcement officer may conduct a limited search for concealed weapons if the officer reasonably believes that a criminal suspect may be armed and dangerous. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also Florida v. J.L., 529 U.S. 266, 269-70, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Harris v. Commonwealth, 241 Va. 146, 150, 400 S.E.2d 191, 193-94 (1991); Jones v. Commonwealth, 230 Va. 14, 19, 334 S.E.2d 536, 539-40 (1985). Indeed, Cost expressly consented to such a limited search of his person by Officer Davis. Rather, Cost argues that his Fourth Amendment right to be free from unreasonable searches and seizures was violated because Officer Davis exceeded the proper scope of a Terry pat-down search. Cost contends that this is so because the character of the capsules as containing heroin, or some other form of contraband, would not be immediately apparent merely by feeling the capsules through his clothing, and Davis could discern that what he did feel in Cost's pocket was not a weapon. Thus, Cost asserts that the heroin capsules removed from his pocket should have been excluded from evidence.

The Commonwealth responds that the Court of Appeals correctly held that determining whether a law enforcement officer conducting a Terry pat-down search had sufficient probable cause to seize an item suspected to be contraband based upon the feel of the object through the suspect's clothing requires a consideration of the totality of the circumstances. Cost, 49 Va.App. at 227, 638 S.E.2d at 719-20. Thus, the Commonwealth contends that the circuit court correctly ruled, and the Court of Appeals properly agreed, that Officer Davis was justified in seizing the capsules from Cost's pocket because "[a]lthough other [legal] substances are contained in capsules, his own experience and common sense told Davis that one does not carry numerous loose capsules of legal substances in one's pocket."

We agree with the Commonwealth that the determination whether a law enforcement officer had sufficient probable cause to seize contraband from a person in the course of a Terry pat-down search requires a consideration of the totality of the circumstances surrounding the search, as well as a consideration of the officer's knowledge, training and experience. As we have recently observed, "[a]n officer who conducts a Terry pat-down search is justified in removing 'an item from a subject's pocket if the officer reasonably believes that the object might be a weapon. Lansdown v. Commonwealth, 226 Va. 204, 213, 308 S.E.2d 106, 112 (1983). Additionally, the removal of an item from a subject's pocket is also justified if the officer can identify the object as suspicious under the `plain feel' variation of the plain view doctrine. Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); see Murphy v. Commonwealth, 264 Va. 568, 574, 570 S.E.2d 836, 839 (2002)." Grandison v. Commonwealth, 274 Va. 316, 319-20, 645 S.E.2d 298, 300 (2007).

The "plain feel" doctrine comports with the traditional application of the Fourth Amendment because, when the character of the object felt by the officer is immediately apparent either as a weapon or some form of contraband, the object is for all practical purposes within the plain view of the officer. The Fourth Amendment does not require the officer to be subjected unreasonably to the risk of harm from a dangerous weapon or to ignore criminal activity occurring in his presence. In Dickerson, the United States Supreme Court explained that when the identity of the object is immediately apparent to the officer conducting a legal pat-down search of a suspect "there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context." 508 U.S. at 375-76, 113 S.Ct. 2130.

"However, an item may not be retrieved under the plain view doctrine unless it is `immediately apparent' to the officer that the item is evidence of a crime. Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Murphy, 264 Va. at 574, 570 S.E.2d at 839." Grandison, 274 Va. at 320, 645 S.E.2d at 300. It is not sufficient probable cause to seize an item from inside the suspect's clothing if the officer has no more than an educated "hunch" based upon the "plain feel" that the item might be contraband. See Harris v. Commonwealth, 241 Va. 146, 151, 400 S.E.2d 191, 194 (1991) (addressing officer's "hunch" that a closed canister contained illegal drugs).

Consistent with these principles, we have stated that ...