Hatcher v. Com., 2044-90-4

• Docket Nº: No. 2044-90-4
• Citation: 14 Va.App. 487, 419 S.E.2d 256
• Case Date: May 26, 1992
• Court: Court of Appeals of Virginia

Page 256

419 S.E.2d 256 14 Va.App. 487 Bruce Alfonso HATCHER, s/k/a Bruce Alponso Hatcher
v.
COMMONWEALTH of Virginia. Record No. 2044-90-4. Court of Appeals of Virginia. May 26, 1992.

[14 Va.App. 488]

Page 257

E.E. Sanders, Jr., Woodbridge, for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BRAY, ELDER and MOON, JJ.

[14 Va.App. 489] ELDER, Judge.

Bruce A. Hatcher, appellant, appeals from his conviction at a September 25, 1990, bench trial of possession of cocaine. Prior to trial, on April 10, 1990, appellant moved to suppress evidence against him, which motion the trial court denied. On appeal, appellant asserts: (1) that the officer who detained him did not have the requisite reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); (2) that the trial court erred in failing to suppress evidence seized in violation of Code § 19.2-83; and (3) that the court erred in failing to exclude a statement he made allegedly in response to police interrogation, while he was in custody, and without a Miranda warning. We affirm the judgment of the trial court.

Using radar at about midnight on August 13, 1989, Officer Robert Reetz of the Manassas Police Department detected a car approaching him at a high rate of speed. Without activating his emergency lights, Reetz started in pursuit, accelerated in order to keep up with the suddenly accelerating car, and watched as the car turned abruptly onto a side street, pulled to a stop, and went dark. Interpreting this as an evasive maneuver meant to elude his pursuit, Reetz pulled to a stop behind the car and activated his emergency lights. Appellant immediately exited the car from the passenger side and walked about twenty-five feet away before Reetz identified himself as a police officer and asked him to stop and return.

Pursuant to the driver's consent, Reetz conducted a search of the car. He then searched the immediate vicinity of the car and discovered a "stem," a device used to smoke crack cocaine, immediately behind the right front wheel on the passenger side of the car. Relying on his experience as a narcotics investigator, Reetz surmised that crack cocaine was present in the stem. He asked the four occupants of the car, "Whose is it?" and received no response. Reasoning that only appellant had been in a position to place the stem where Reetz had found it, and that it had to have been placed there after the car had rolled to a stop or it would have been crushed, Reetz placed appellant under arrest, handcuffed him, and put him in the back of the cruiser. He then issued the driver a summons for speeding, arrested a second passenger for

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possession of cocaine, and gained control of the situation following a small altercation.

[14 Va.App. 490] During his ride in the police cruiser, apparently without any prompting by Reetz whatsoever, appellant announced, "It's not mine." Reetz answered, "What?" or "Pardon me?" Appellant repeated, "It's not mine. It was the man behind me. He saw you turning on us. He said he'd pay me $50 to get rid of it, so I took it, and I dumped it out of the car."

I.

Appellant's first argument on appeal is that the officer who initially detained him did not have the requisite reasonable suspicion to do so under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Appellant's initial detention constituted a seizure under Terry, 392 U.S. at 16, 88 S.Ct. at 1877. In order to justify such a seizure, an officer must have a "reasonable and articulable suspicion of criminal activity on the part of the defendant." Commonwealth v. Holloway, 9 Va.App. 11, 15, 384 S.E.2d 99, 101 (1989). However, an officer need not suspect an individual of a particular crime in order to justify a Terry stop. A general suspicion of some criminal activity is enough, as long as the officer can, based on the circumstances before him at the time, articulate a reasonable basis for his suspicion.

Here, Officer Reetz personally observed highly evasive maneuvers on the part of the car he pursued. Moreover, at the moment Reetz stopped behind this car and activated his emergency lights, appellant exited and began to walk briskly away. While Reetz acknowledged that appellant apparently was not the driver of the vehicle, and thus was not responsible for the evasive driving, appellant had been a passenger in the vehicle. Moreover, it was appellant alone who sought to elude Reetz's investigation after the car had stopped.

As the United States Supreme Court noted in Pennsylvania v. Mimms, "[t]he touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' " 434 U.S. 106, 108-09, 98 S.Ct. 330, 332-33, 54 L.Ed.2d 331 (1977) (quoting Terry, 392 U.S. at 19, 88 S.Ct. at 1878). In Mimms, the Court found that, under all the circumstances of that case, a police officer making a routine traffic stop had been justified in asking the driver of the stopped vehicle to exit his car and thereby establish "a face-to-face confrontation" which "diminishes[14 Va.App. 491] the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault." Id. at 110, 98 S.Ct. at 333. In reaching its conclusion, the Court noted the "inordinate risk confronting an officer as he approaches a person seated in an automobile." Id.

"According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings--A Tactical Evaluation, 54 Crim.L.C. & P.S. 93 (1963)." We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers...