Fitzgerald v. Commonwealth, Record No. 2030-08-3 (Va. App. 11/3/2009)

Decision Date03 November 2009
Docket NumberRecord No. 2030-08-3.
CourtCourt of Appeals of Virginia
PartiesCARL ANTHONY FITZGERALD v. COMMONWEALTH OF VIRGINIA

Appeal from the Circuit Court of the City of Martinsville, G. Carter Greer, Judge.

S. Jane Chittom, Appellate Defender (Patricia P. Nagel, Assistant Appellate Defender II; Office of the Appellate Defender, on briefs), for appellant.

John W. Blanton, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: Judges Elder, Alston and Senior Judge Clements.

MEMORANDUM OPINION*

JUDGE LARRY G. ELDER

Carl Anthony Fitzgerald (appellant) appeals from his bench trial conviction for possession of a firearm by a convicted felon. On appeal, he contends the trial court erroneously found that (1) the encounter that led to the discovery of firearms in the vehicle in which appellant had been a passenger did not violate the Fourth Amendment and (2) that the evidence was sufficient to prove he possessed the firearms. We hold the evidence supports the trial court's determination that no Fourth Amendment violation occurred and that the evidence was sufficient to prove appellant constructively possessed the firearms. Thus, we affirm his conviction.

I.
A. MOTION TO SUPPRESS

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, granting to the evidence all reasonable inferences fairly deducible therefrom. Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). "[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); see McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001). 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). Our review of the existence of probable cause or reasonable suspicion involves application of an objective rather than subjective standard. See, e.g., Whren v. United States, 517 U.S. 806, 812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89, 97-98 (1996); see also Robinson v. Commonwealth, 273 Va. 26, 35-38, 639 S.E.2d 217, 222-24 (2007).

Fourth Amendment jurisprudence recognizes three categories of police-citizen contact: "(1) consensual encounters, (2) brief, minimally intrusive investigatory detentions, based upon specific, articulable facts, commonly referred to as Terry stops, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and (3) highly intrusive arrests and searches founded on probable cause." Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995). Consensual encounters "`need not be predicated on any suspicion of the person's involvement in wrongdoing,' and remain consensual `as long as the citizen voluntarily cooperates with the police.'" Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870 (1992) (quoting United States v. Wilson, 953 F.2d 116, 121 (4th Cir. 1991)). "`As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.'" Greene v. Commonwealth, 17 Va. App. 606, 610, 440 S.E.2d 138, 140 (1994) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980)).

"A seizure occurs when an individual is either physically restrained or has submitted to a show of authority." McGee, 25 Va. App. at 199, 487 S.E.2d at 262. "Whether a seizure has occurred . . . depends upon whether, under the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave." Id. at 199-200, 487 S.E.2d at 262.

Various factors have been identified as relevant in determining whether a seizure has occurred, including the threatening presence of a number of police officers, the display of weapons by officers, physical contact between an officer and a citizen, an officer's language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave. The decision whether the encounter was consensual must be made based on the totality of the circumstances.

Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003) (citations omitted). As the Virginia Supreme Court has recently observed in this context,

There is good reason for the rule that appellate courts must defer to the factual findings of the trial judge in Fourth Amendment cases. The fact patterns in such cases arrive in infinite variety, seldom or never exactly duplicated. Moreover, they involve consideration of nuances such as tone of voice, facial expression, gestures and body language seldom discernable from a printed record. The controlling inquiry [in determining whether a person was seized] is the effect of such matters on a reasonable person in the light of all the surrounding circumstances.

Malbrough v. Commonwealth, 275 Va. 163, 171, 655 S.E.2d 1, 5 (2008).

An officer may effect a Terry stop, i.e., a seizure constituting a "brief, minimally intrusive investigatory detention[]," Wechsler, 20 Va. App. at 169, 455 S.E.2d at 747 (citing Terry, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889), if he becomes aware of facts that "lead[] him reasonably to believe in light of his experience that criminal activity may be afoot" and that the person he detains is involved in it, Terry, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911, or that the detainee "`is otherwise subject to seizure for violation of the law,'" see 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)). "[T]he likelihood of criminal activity [required for a Terry stop] 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). Nevertheless, 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, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909); see Arvizu, 534 U.S. at 274, 122 S. Ct. at 751, 151 L. Ed. 2d at 750.

An officer who develops such reasonable suspicion concerning a person may stop that person "in order to identify him, to question him briefly, or to 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). In the course of a valid Terry stop, an officer may draw his weapon and handcuff the detainee without converting the encounter into an arrest. See Thomas v. Commonwealth, 16 Va. App. 851, 857, 434 S.E.2d 319, 323 (1993), aff'd on reh'g en banc, 18 Va. App. 454, 444 S.E.2d 275 (1994).

Whether an officer has reasonable suspicion for a Terry stop is based on an assessment of the totality of the circumstances, "which includes `the content of information possessed by police and its degree of reliability,' i.e., `quantity and quality.'" Jackson, 267 Va. at 673, 594 S.E.2d at 599 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990)). Reasonable suspicion "need not rule out the possibility of innocent conduct." Arvizu, 534 U.S. at 277, 122 S. Ct. at 753, 151 L. Ed. 2d at 7.

We have also recognized the emergency aid doctrine and the community caretaker doctrine, which are overlapping in nature. The former permits law enforcement officers to engage in properly circumscribed searches or seizures without violating the Fourth Amendment "when someone's health or physical safety is genuinely threatened," and the latter "recognizes that `police owe duties to the public, such as rendering aid to individuals in danger of physical harm, reducing the commission of crimes through patrol and other preventive measures, and providing services on an emergency basis.'" Kyer v. Commonwealth, 45 Va. App. 473, 480-81, 612 S.E.2d 213, 217 (2005) (en banc) (quoting Reynolds v. Commonwealth, 9 Va. App. 430, 436-37, 388 S.E.2d 659, 663-64 (1990)). Although our prior case law may have implied that neither of these doctrines legitimizes a search that is objectively reasonable but pretextual, see, e.g., Commonwealth v. Waters, 20 Va. App. 285, 290, 456 S.E.2d 527, 530 (1995); Reynolds, 9 Va. App. at 437, 438, 388 S.E.2d at 664, the Supreme Court has implicitly overruled those holdings, see Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 1947, 164 L. Ed. 2d 650, 657-58 (2006) (holding that as long as a search is objectively reasonable under the emergency aid doctrine, it does not violate the Fourth Amendment); see also Kyer, 45 Va. App. at 481 n.2, 612 S.E.2d at 217 n.2 (holding question of whether officers entered the defendant's residence under a pretext that an emergency existed was not relevant under the applicable test of objective reasonableness). Thus, regardless of whether a particular search or seizure is viewed as a criminal investigation, on the one hand, or an emergency or community caretaking function on the other, the analysis under the Fourth Amendment is the same—"An action is `reasonable' under the Fourth Amendment,...

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