Hill v. Commonwealth

• Decision Date: 24 April 2018
• Docket Number: Record No. 0482-17-1
• Parties: Patrick Darnell HILL v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

68 Va.App. 610

812 S.E.2d 452

Patrick Darnell HILL

v.COMMONWEALTH of Virginia

Record No. 0482-17-1

Court of Appeals of Virginia, Norfolk.

APRIL 24, 2018

Stephanie J. Pough (Eric O. Moody and Associates, P.C., Portsmouth, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Decker and O'Brien

OPINION BY JUDGE MARY GRACE O'BRIEN

Patrick Darnell Hill ("appellant") was indicted for possession of a Schedule I or II controlled substance with intent to distribute, third offense, in violation of Code § 18.2-248. Appellant filed a motion to suppress evidence recovered during a search of his vehicle, claiming that police officers improperly seized him and the drugs found in his car in violation of his Fourth Amendment rights. The court denied his motion, and appellant entered a conditional guilty plea to the lesser-included offense of possession with intent to distribute as a second offense, preserving his right to appeal pursuant to Code § 19.2-254. Finding no error in the court's denial of appellant's suppression motion, we affirm.

BACKGROUND

In an appeal of the denial of a motion to suppress evidence, we review the facts in the light most favorable to the prevailing party, the Commonwealth. Aponte v. Commonwealth, 68 Va. App. 146, 156, 804 S.E.2d 866, 870 (2017). So viewed, the evidence established that on the afternoon of April 5, 2016, Detectives Hunter and Whitson of the Portsmouth Police Department were "investigating some narcotics complaints" in the 600 block of Newport Avenue in the City of Portsmouth. Detective Hunter had been assigned to a unit specializing in narcotics transactions for two-and-a-half years of his seven years on the police force. Detective Whitson, a twenty-one-year employee of the police department, had been with the narcotics unit for four years.

Both detectives identified the 600 block of Newport Avenue as "a high drug, high crime area." Detective Whitson testified that he had previously "made several [drug arrests] in that area, mostly right behind that area." Detective Hunter confirmed that he had also "been [to] several places in that area ... about drug sales."

The detectives observed appellant sitting alone in a black Lexus, leaning back in the driver's seat and "[not] moving around." The vehicle was parked in front of a fence that bordered a "shop of some sort." The detectives drove their unmarked police car past the Lexus and executed a U-turn, without activating their lights or siren. As the detectives again approached the Lexus in their car, appellant looked in their direction. The detectives parked approximately twenty-five feet away and watched appellant's car for "a minute or so." During that period, the detectives observed appellant make "a bunch of movement inside of the vehicle" by repeatedly "looking up and down."

Detective Hunter testified that based on the character of the location and his experience with drug dealers waiting for their clients in "a secluded area," he was investigating possible narcotics activity. The detectives, who were wearing police vests and patches, exited their car and started walking toward the Lexus. Appellant again looked in their direction and immediately began to engage in more extensive movement inside the car. The detectives observed appellant place his left hand on the steering wheel, turn his back and head away from them, and use his right hand to "d[i]g down" next to the driver's seat. Neither detective was able to see what, if anything, was in appellant's right hand.

Concerned for their safety, the detectives verbally identified themselves as police officers and demanded that Hill show his hands. Detective Hunter later told appellant "that he thought [appellant] had a firearm [based on] the way he was acting and the way he was pulling away, reaching." Appellant did not obey the detectives' orders, and his right hand remained out of view. After shouting at appellant "at least ten times" to show his hands, the detectives grabbed appellant's left forearm, physically removed him from the vehicle, and placed him in handcuffs.

Once appellant was secured, Detective Hunter looked under the rear portion of the driver's seat where appellant had been reaching. There, he found a plastic bag containing individually wrapped rocks of crack cocaine. Appellant was subsequently charged with drug possession.

Appellant filed a motion to suppress the seized evidence and following a hearing, the court denied the motion. The court ruled that "the officers acted properly and in a constitutional manner and had reasonable articulable suspicion for what they did." On appeal, appellant's sole argument is that the detectives lacked reasonable suspicion for an investigative detention and subsequent search of the vehicle.¹

DISCUSSION

Upon review of the court's denial of a suppression motion, "the burden is upon [the appellant] to show that the ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error." Andrews v. Commonwealth, 37 Va. App. 479, 488, 559 S.E.2d 401, 406 (2002) (quoting McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc ) ). "[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, 25 Va. App. at 198 & n.1, 487 S.E.2d at 261 & n.1. We review de novo the application of law to the court's factual findings. Watts v. Commonwealth, 38 Va. App. 206, 213, 562 S.E.2d 699, 703 (2002).

Appellant asserts that he was impermissibly seized in violation of his Fourth Amendment rights, and as a result, the cocaine found by the police officers should be suppressed. He contends that the evidence, viewed in its entirety, did not support the conclusion that the detectives had a reasonable articulable suspicion sufficient to seize him and search his vehicle.

A. Fourth Amendment Seizures

The Fourth Amendment of the United States Constitution, as incorporated in and applied to the states through the Fourteenth Amendment, guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." A person is not seized according to the Fourth Amendment until he submits to a police officer's show of authority. Cochran v. Commonwealth, 258 Va. 604, 608, 521 S.E.2d 287, 289 (1999) ; see also California v. Hodari D., 499 U.S. 621, 625, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991) ; McGee, 25 Va. App. at 199, 487 S.E.2d at 262 (stating that no seizure occurs until "an individual is either physically restrained or has submitted to a show of authority"). "[T]here is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned." Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 2405, 168 L.Ed.2d 132 (2007). We addressed the issue of "submission to authority" in Beasley v. Commonwealth, 60 Va. App. 381, 728 S.E.2d 499 (2012). In Beasley, although the defendant and another passenger in a parked vehicle initially complied with an officer's directions to show their hands, they continued to make "furtive movements," and the defendant began reaching to the side of his seat. Id. at 386-88, 728 S.E.2d at 501-02. We held that it was not until the defendant responded to the officer's third command to keep his hands in his lap that he was seized for Fourth Amendment purposes. Id. at 394, 728 S.E.2d at 505. See also Jones v. Commonwealth, 52 Va. App. 548, 665 S.E.2d 261 (2008) (holding that the defendant was not seized until he stepped out of the vehicle because he did not submit to the detectives' authority until then).

Here, appellant did not comply with the detectives' requests to show his hands, and therefore he did not submit to their authority while sitting in the vehicle. The detectives were not required to articulate a suspicion of criminal behavior to explain their observation of appellant and their approach to his vehicle. Although Detectives Hunter and Whitson both testified that appellant was sitting in a parked car in an area known for drug transactions, and they were specifically investigating narcotics sales in that location, those facts were not necessary to justify their decision to approach the Lexus. Their initial interaction with appellant was constitutionally permissible; appellant was not seized at that point. No seizure occurred until the detectives physically removed him from the vehicle and placed him in handcuffs. It was only then that appellant submitted to their authority and was seized for purposes of the Fourth Amendment.

B. Reasonable Articulable Suspicion

Having determined when the seizure of appellant occurred, we turn to whether the detectives had a reasonable articulable suspicion that, at the time of the seizure, appellant may have been involved in criminal activity. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968) ; see also Jones, 52 Va. App. at 559, 665 S.E.2d at 267. The Supreme Court has described an "articulable suspicion" as a "conclusion that can be expressed in words sufficient to persuade a reasonable listener to come to a like conclusion." Mason v. Commonwealth, 291 Va. 362, 369, 786 S.E.2d 148, 152 (2016). However, " ‘[a]rticulable’ does not mean ‘articulated.’ " Id."A police officer conducting a stop is not required to precisely and individually articulate the facts that added up to suspicion in his mind." Id. (quoting United States v. Brown, 232 F.3d 589, 594 (7th Cir. 2000) ).

The test is not what the officer thought, but rather whether the facts and circumstances apparent to him at the time of the stop were such as to create in the mind of a reasonable officer in the same position a suspicion that a

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