Gates v. Commonwealth, Record No. 1877-10-2

CitationRecord No. 1877-10-2
Case DateNovember 08, 2011
CourtCourt of Appeals of Virginia


Record No. 1877-10-2


NOVEMBER 8, 2011

Present: Judges Humphreys, Beales and Senior Judge Clements
Argued at Richmond, Virginia


Margaret P. Spencer, Judge

James A. Bullard, Jr., for appellant.

Craig W. Stallard, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.

Christopher Morris Gates (appellant) appeals his convictions for possession of heroin with the intent to distribute (under Code § 18.2-248) and possession of heroin with the intent to distribute while within 1,000 feet of school property (under Code § 18.2-255.2). Appellant entered a conditional guilty plea to these charges in the trial court, preserving his right to appeal the denial of his motion to suppress. On appeal, we conclude that the trial court did not err when it denied appellant's motion to suppress, and, therefore, we affirm both convictions for the following reasons.


"Under familiar principles of appellate review, we will state 'the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court, and will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.'"

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Sidney v. Commonwealth, 280 Va. 517, 520, 702 S.E.2d 124, 126 (2010) (quoting Murphy v. Commonwealth, 264 Va. 568, 570, 570 S.E.2d 836, 837 (2002)).

So viewed, the evidence at the suppression hearing established that Officer Michael Verbena observed appellant and some other men standing near the 1400 block of Coalter Street in the Mosby Court neighborhood of the City of Richmond on October 21, 2009. Officer Verbena described this area as "a high drug, high crime area," and he testified that the police had made several drug-related arrests and had conducted several controlled drug transactions there. Officer Verbena specifically noted that the "cut" between buildings where appellant and the other men were standing was known as a place frequented by trespassers and drug dealers.

Officer Verbena readily recognized appellant because the officer had investigated prior incidents or allegations involving appellant. Previously, the officer testified, he had recovered heroin from an upstairs bedroom of appellant's residence and also had responded a year earlier to a call alleging that appellant was involved in a domestic shooting. In addition, according to Officer Verbena, a reliable informant had told him that a person named Chris and resembling appellant's physical appearance was dealing drugs at the 1400 block of Coalter Street about two to three weeks before the officer observed appellant in that "exact vicinity" on October 21, 2009. This information from the reliable informant matched Officer Verbena's own information about appellant. On cross-examination, Officer Verbena testified, without objection, "I know [appellant] hangs out in that area and I've known him to deal drugs from there before."

When Officer Verbena pulled his patrol car within fifteen feet of appellant and the other men, they began walking deeper into Mosby Court. According to Officer Verbena, appellant then looked in the direction of the patrol car, but "bladed his body" so as to conceal his right hand and the right side of his body from the officer's view. Describing for the trial court what the term

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"blading" meant, Officer Verbena testified, "He basically turned his body so we1 could not see his backside. He was concealing his side from us." Officer Verbena testified that appellant then appeared to "put something in his backside area towards his right side specifically."

At this point, Officer Verbena exited the patrol car, approached appellant, and "patted down that exact area where I watched his arm go for our safety to make sure he had put no weapons there." During this brief pat down, Officer Verbena felt a key and also felt a "hard knot," which he "believed to be" indicative of "some type of narcotic" packaged in a plastic baggie. Officer Verbena asked appellant what was in his pocket, and appellant replied, "Nothing." Officer Verbena then placed appellant in handcuffs and retrieved what was later determined to be heroin from appellant's pocket.

Based on this testimony, the trial court found that several circumstances justified Officer Verbena's decision to detain appellant and perform a pat down of appellant under Terry v. Ohio, 392 U.S. 1 (1968), including: (1) appellant's "blading" of his body, which the trial court found was "furtive" and "suspicious"; (2) the location of the encounter in an area known for drug transactions; (3) the information about the drug dealer named Chris that the reliable informant supplied to Officer Verbena; (4) Officer Verbena's knowledge that appellant "had a gun on a prior occasion"2 ; and

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(5) Officer Verbena's recovery of heroin from appellant's residence on a prior occasion. The trial court also found that the pat down of appellant was "not for drugs, but for weapons."

Furthermore, discussing the circumstances relating to the actual search of appellant for contraband and the subsequent seizure of the heroin, the trial court found:

At that time the officer felt something which appeared to feel like drugs. Still, however, the officer does not have probable cause. Now, what gives the officer probable cause is when the officer asked the defendant, what do you have in your pocket, and the defendant said, nothing, the officer clearly felt something in the defendant's pocket. So the response, "nothing," at that point I think gave him probable cause to believe that the defendant possessed contraband in his pocket.

Therefore, rather than basing its finding of probable cause solely on the "plain feel doctrine," see, e.g., Murphy, 264 Va. at 572, 570 S.E.2d at 838, the trial court noted that its finding of probable cause was also supported by the evidence that appellant simply "was not telling the truth" to the officer when asked what was in his pocket.


Appellant contends that the trial court erred when it denied his motion to suppress.

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. Ward v. Commonwealth, 273 Va. 211, 218, 639 S.E.2d 269, 272 (2007).

Malbrough v. Commonwealth, 275 Va. 163, 168-69, 655 S.E.2d 1, 3 (2008). An appellate court reviewing the denial of a motion to suppress should "'give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'" Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).

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Appellant argues that Officer Verbena unlawfully detained him and unlawfully patted him down for weapons. "A police officer may conduct a brief investigatory stop when the officer, in light of his training and experience, has reasonable, articulable suspicion that criminal activity is afoot." Jones v. Commonwealth, 279 Va. 665, 673, 691 S.E.2d 801, 805 (2010); see Terry, 392 U.S. at 22. In addition, "[a]n officer may conduct a pat-down search for weapons if the officer can point to specific and articulable facts which reasonably lead him to believe criminal activity may be afoot and the person subjected to the search may be armed and dangerous." Lowe v. Commonwealth, 33 Va. App. 656, 660-61, 536 S.E.2d 454, 456-57 (2000) (emphasis added).

Viewing the evidence "in the light most favorable to the Commonwealth, the prevailing party at trial," Malborough, 275 Va. at 168, 655 S.E.2d at 3, Officer Verbena had far more than an "unparticularized suspicion or hunch" that criminal activity was afoot. Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000). Appellant was present with other persons in a high crime area where drug transactions tend to occur. See Whitaker v. Commonwealth, 279 Va. 268, 276, 687 S.E.2d 733, 737 (2010) ("[W]hile a suspect's presence in a high crime area, standing alone, is not enough to support a reasonable particularized suspicion, it is a relevant contextual consideration in a Terry analysis."). Officer Verbena's past investigations of appellant had involved heroin and a firearm, and the officer had received information from a reliable informant that a man named Chris who had a similar physical appearance as appellant was dealing drugs in that "exact vicinity" two to three weeks earlier. See Purdie v. Commonwealth, 36 Va. App. 178, 187-88, 549 S.E.2d 33, 38 (2002) (noting that an officer is permitted to rely on knowledge of the suspect's prior acts). Moreover, when Officer Verbena pulled his patrol car within fifteen feet of the group of people that included appellant, the officer observed appellant "blade" his body - in an apparent attempt to conceal an object that he had been holding while he placed that object in his pocket - which the...

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