Harris v. Com.

Decision Date16 June 1998
Docket NumberRecord No. 0955-97-2.
Citation500 S.E.2d 257,27 Va. App. 554
PartiesJames Edward HARRIS, Jr. v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

James J. Ilijevich (Office of the Public Defender, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Present: BENTON, ELDER and BUMGARDNER, JJ.

ELDER, Judge.

James E. Harris, Jr. (appellant) appeals his conviction of possession of cocaine in violation of Code § 18.2-250. He contends the trial court erred when it (1) denied his motion to suppress evidence obtained during a traffic stop of a car in which he was a passenger and (2) admitted into evidence a police officer's testimony regarding out-of-court statements made by the car's driver. For the reasons that follow, we affirm.

I. FACTS

The evidence in the record, when viewed in the light most favorable to the Commonwealth, proved that, on June 7, 1996, Trooper John A. Jones of the State Police was patrolling Interstate 95 in a marked police cruiser. At around 11:00 a.m., Trooper Jones noticed a vehicle that was both speeding and making improper lane changes. The car was driven by Tony Maurice Horne, and appellant was a passenger in the front seat. Trooper Jones stopped the vehicle. As Trooper Jones exited his cruiser, appellant opened the passenger side door and leaned over as if he was reaching for something. Appellant then exited the vehicle, appeared "nervous and jittery," and took "a step or two" in the direction of Trooper Jones' cruiser. Trooper Jones, who by this time had exited his cruiser, commanded appellant to stay where he was and to show his hands. When appellant failed to comply with the trooper's request, Trooper Jones drew his weapon, pointed it at appellant, and again ordered him to show his hands. Appellant continued moving around and did not display his hands to Trooper Jones.

"Less than a minute" after Trooper Jones first ordered appellant to show his hands, Trooper Scott Luddy arrived at the scene. Shortly after Trooper Luddy's arrival, Trooper Jones put away his weapon. Trooper Luddy approached appellant, told him to "calm down," and escorted him to the side of the vehicle. Trooper Luddy neither drew his weapon nor pushed appellant to the side of the car. At this point, Trooper Jones walked over to the driver side of the vehicle to investigate whether Horne, the operator, was driving under the influence.

Trooper Luddy remained with appellant. Appellant appeared agitated and continued shifting his weight back and forth and moving his hands. At about this time, Trooper Paul D. Watts arrived at the scene and approached Trooper Luddy and appellant. Appellant continued to fidget and appeared excited and argumentative. Trooper Watts, who was qualified as an expert in drug investigations and drug paraphernalia, testified that, based on appellant's demeanor and behavior, he believed appellant was "high on crack." According to Trooper Watts, appellant was neither free to turn around nor to leave.

Appellant consented to Trooper Luddy's request to conduct a pat-down of appellant's clothing. During the pat-down, Trooper Luddy felt a "pipe-like device" in appellant's front pocket. One of the troopers asked appellant to retrieve the object from his pocket, and appellant complied. Appellant pulled out a corn cob pipe and handed it to Trooper Luddy. Trooper Watts examined the pipe and concluded it was a "crack pipe" because it contained metal meshing typical of such pipes.

After examining the pipe, Trooper Watts asked appellant a series of questions. Trooper Watts asked appellant if he used the pipe to "smoke crack." Appellant replied that he did not smoke crack cocaine. Trooper Watts then asked appellant where his tobacco was located. Appellant replied that it was in the car and offered to show it to the trooper. Appellant entered his car and retrieved a pouch from the front seat. When appellant opened the pouch, Trooper Watts saw a clear vial with a green cap that is typically used to store illegal drugs. The vial was "sitting right on top of the tobacco." Trooper Watts watched as appellant manipulated the tobacco in the pouch until it covered the vial. Appellant then said, "this is my tobacco" and handed the pouch to Trooper Watts. Trooper Watts recovered the vial from the bottom of the pouch. The vial contained crack cocaine. Within minutes of this discovery, at 11:20 a.m., Trooper Watts arrested appellant and placed him in handcuffs. Six minutes later, Trooper Watts first informed appellant of his Miranda rights.

After a grand jury indicted appellant for possessing cocaine in violation of Code § 18.2-250, appellant moved the trial court to suppress the cocaine retrieved by Trooper Watts. Following a hearing, the trial court made extensive factual findings and denied appellant's motion.

At trial during the Commonwealth's case-in-chief, Trooper Jones testified about an exchange he had with the driver, Horne, after the trooper learned that crack cocaine had been retrieved from appellant. Trooper Jones testified that he asked Horne what he knew about "the crack in the car." Trooper Jones testified that Horne made the following statement: "We went together to buy it last night so we could give it to some whores for sex, but we didn't use any." Trooper Jones also testified that Horne stated that he and appellant intended to use the remaining amount to "get a bitch when we get to the beach." Appellant objected to the admission of Horne's out-of-court statements on the ground they were inadmissible hearsay. The trial court overruled appellant's objection.

Following the presentation of the evidence, the trial court found appellant guilty of possession of cocaine. During its ruling from the bench, the trial court stated that it would not consider Horne's out-of-court statements when determining appellant's guilt. The trial court subsequently sentenced appellant to serve three years in prison with all but ninety days suspended.

II. MOTION TO SUPPRESS

Appellant contends the trial court erred when it denied his motion to suppress. First, appellant argues the trial court erred when it concluded he was lawfully detained after he exited the vehicle. Second, appellant argues Trooper Watts subjected him to custodial interrogation before he was given his Miranda warnings and that his subsequent responses to this unlawful interrogation resulted in the discovery of the crack cocaine in the tobacco pouch. We disagree with both contentions.

On appeal from a trial court's denial of a motion to suppress, the burden is on the appellant to show that the trial court's decision constituted reversible error. See Stanley v. Commonwealth, 16 Va.App. 873, 874, 433 S.E.2d 512, 513 (1993). We view the evidence in the light most favorable to the prevailing party, granting to it all reasonable inferences fairly deducible therefrom. See Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). We review the trial court's findings of historical fact only for "clear error," but we review de novo the trial court's application of defined legal standards to the particular facts of a case. See Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996); see also Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996).

A.

We first hold that appellant was not unlawfully detained by the troopers after he exited the vehicle.

It is well established that "stopping an automobile and detaining its occupants constitute a seizure within the meaning [of the Fourth Amendment] even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979) (citations omitted).

A police officer may stop the driver or occupants of an automobile for investigatory purposes if the officer has "a reasonable articulable suspicion, based on objective facts, that the individual is involved in criminal activity."

Jones v. Commonwealth, 24 Va.App. 519, 522, 484 S.E.2d 125, 126 (1997) (citations omitted). Following a lawful traffic stop, the Fourth Amendment permits the police to order the passengers to get out of the car pending the completion of the stop.1 See Maryland v. Wilson, 519 U.S. 408, ___, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997). Although the United States Supreme Court has yet to address the issue, see id. at ___ n. 3, 117 S.Ct. at 886 n. 3, this Court has previously held that police officers may also detain passengers beside an automobile until the completion of a lawful traffic stop. See Hatcher v. Commonwealth, 14 Va.App. 487, 491-92, 419 S.E.2d 256, 259 (1992). This authority over passengers at a lawful traffic stop is deemed a "reasonable" seizure under the Fourth Amendment because the "weighty [public] interest in officer safety" during traffic stops, which "may be dangerous encounters," sufficiently outweighs the minimal additional intrusion upon the private interests of passengers, who "are already stopped by virtue of the [lawful] stop of the vehicle." Wilson, 519 U.S. at ___ - ___, 117 S.Ct. at 885-86; see also Hatcher, 14 Va.App. at 490-92, 419 S.E.2d at 258-59.

When the troopers detained appellant, they acted reasonably, as required by the Fourth Amendment, to protect their safety and maintain the status quo during the course of the investigatory traffic stop. Trooper Jones lawfully stopped the vehicle for investigatory purposes after observing Horne drive the car in excess of the speed limit and make improper lane changes. After appellant exited the car and failed to comply with Trooper Jones' order to show his hands, Trooper Jones drew his gun upon appellant. This show of authority effectively prevented appellant from leaving the scene of the traffic stop. Troopers Luddy and Watts arrived within minutes and detained appellant at the front of the car while Trooper...

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