Hill v. Commonwealth, Record No. 180681

• Docket Nº: Record No. 180681
• Citation: 832 S.E.2d 33, 297 Va. 804
• Case Date: August 30, 2019
• Court: Supreme Court of Virginia

297 Va. 804
832 S.E.2d 33

Patrick Darnell HILL
v.
COMMONWEALTH of Virginia

Record No. 180681

Supreme Court of Virginia.

August 30, 2019

Stephanie J. Pough (Eric O. Moody & Associates, on brief), for appellant.

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

PRESENT: Goodwyn, Mims, McClanahan, Powell, Kelsey, and McCullough, JJ., and Millette, S.J.

OPINION BY JUSTICE D. ARTHUR KELSEY

297 Va. 807

The trial court convicted Patrick Darnell Hill of possession of cocaine with intent to distribute, second offense, upon his conditional guilty plea under Code § 19.2-254. He appealed to the Court

297 Va. 808

of Appeals, claiming that the trial court erroneously denied his pretrial motion to suppress. The Court of Appeals disagreed and affirmed, see Hill v. Commonwealth , 68 Va. App. 610, 621, 625, 812 S.E.2d 452 (2018), as do we.

832 S.E.2d 35

I.

A.

"On appeal, we state the facts ‘in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.’ " Commonwealth v. White , 293 Va. 411, 413-14, 799 S.E.2d 494 (2017) (citation omitted). "This standard requires us ‘to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.’ " Id. at 414, 799 S.E.2d 494. We also presume — even in the absence of specific factual findings — that the trial court resolved all factual ambiguities or inconsistencies in the evidence in favor of the prevailing party and gave that party the benefit of all reasonably debatable inferences from the evidence. See Fitzgerald v. Commonwealth , 223 Va. 615, 627-28, 292 S.E.2d 798 (1982) (noting that "[a]bsent a statutory mandate, ... a trial court is not required to give findings of fact and conclusions of law" in support of a denial of a motion to suppress); cf. Bowman v. Commonwealth , 290 Va. 492, 500 & n.8, 777 S.E.2d 851 (2015) (explaining that when an appellate court is "faced with a record of historical facts that supports conflicting inferences," the court "must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of that prosecution, and must defer to that resolution" (quoting Jackson v. Virginia , 443 U.S. 307, 326, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ) (citing Wright v. West , 505 U.S. 277, 296-97, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (plurality opinion))).

"When considering whether to affirm the denial of a pretrial suppression motion, an appellate court reviews not only the evidence presented at the pretrial hearing but also the evidence later presented at trial." White , 293 Va. at 414, 799 S.E.2d 494 (collecting cases). But when an appellate court considers whether to "revers[e] a criminal conviction based on an erroneous pretrial ruling," evidence or proffers at trial are "relevant only if the defendant renews his pretrial motion at trial." Id. at n.2. A renewal of the motion is required to "satisfy Rule 5:25 by inviting the trial court to reconsider its pretrial ruling in light of the actual evidence

297 Va. 809

presented — rather than merely relying solely upon the charging documents, pretrial proffers of the parties, or cursory evidentiary presentations as the trial court sometimes must do when deciding the issue prior to trial." Id.¹

B.

On April 5, 2016, two detectives were patrolling the "600 block of Newport Avenue in the City of Portsmouth, which is a high crime, drug area," J.A. at 6; see id. at 12, 16, 22, while "investigating some narcotics complaints," id. at 21. Both detectives worked in the Special Investigations Unit specializing in narcotics transactions. See id. at 12, 22. The two detectives had a combined experience of over 28 years, nearly 7 of which they had spent investigating narcotics transactions. See id. In that same "high drug, high crime area," one of the detectives had "made several [arrests] ... , mostly right behind that area." Id. at 22.

In this "secluded" high-crime, high-drug area, id. at 16, the detectives saw Hill sitting alone in the driver’s seat of a parked car. He was "leaning back in the seat watching" and not "moving around." Id. at 20. The detectives made a U-turn and observed Hill for approximately "a minute or so." Id. at 22. As the detectives pulled up near Hill’s vehicle, Hill began "looking up and down, up and down, and he was constantly doing a bunch of movement inside of the vehicle." Id. at 7.

832 S.E.2d 36

The detectives pulled up "right beside [Hill’s] vehicle" and parked approximately 25 feet away without using any lights or sirens. Id. at 9-10. Wearing their "police vest[s]" and "badge[s] of authority," id. at 5, 10, 21; see id. at 23, the detectives walked up to Hill "on the driver’s side of the vehicle, at which time when [they ] approached [Hill], he put his left hand on the steering wheel and then .... he turned his back and head

297 Va. 810

away from [them]" and "began digging with his right hand between .... the driver’s seat," id. at 7 (emphasis added); see id. at 11, 19.

When the detectives "walked up" to Hill, he "looked up towards" the detectives and "immediately went towards the back of the car." Id. at 24. "[H]e hunched over behind the driver’s seat and [went] into the back seat area with his right hand." Id. Fearing that Hill might be reaching for a weapon, the detectives shouted: "Show us your hands, show us your hands," id. at 7; see id. at 11, 18, 24-25, and "[l]et’s see your hands, let’s see your hands," while identifying themselves as police officers, id. at 24. The detectives recalled shouting this command approximately 7 to 10 times. See id. at 11, 25. They were both "concerned for [their] safety." Id. at 26; see id. at 18.

While a detective was telling Hill, "Show me your hands, show me your hands," Hill "kept digging around inside the vehicle." Id. at 11 (emphasis added). He turned his back to the detective and put "his head down in the vehicle as he was digging down, reaching ." Id. (emphasis added); see id. at 8. As Hill was "digging down," id. at 11, one of the detectives opened the driver’s door and "grabbed [him] by his left forearm" as Hill "continued to pull away and dig down between the seats." Id. at 7-8 (emphasis added); see id. at 11. The seizing detective "thought [Hill] had a firearm" given "the way he was acting and the way he was pulling away, reaching." Id. at 11. Immediately after the seizure, the detective "informed" Hill that he "thought [Hill] may have been reaching for a firearm ." Id. at 18 (emphasis added). While the detective did not see a firearm, he understood that "if there was a firearm in that vehicle that it would have been concealed." Id. at 19.

One of the detectives immediately checked "under the driver’s seat in the same area the subject was reaching" and discovered "a clear plastic baggie containing cocaine." Id. at 8. Hill was subsequently arrested and indicted for possession of cocaine with intent to distribute. Hill moved to suppress the cocaine, but the trial court denied the motion. The trial court held that Hill "did certain actions within the car that [the detectives testified] made them feel like they were in danger based on his actions" and that "[t]he officers acted properly and in a constitutional manner and had reasonable suspicion for what they did." Id. at 55. The Court of

297 Va. 811

Appeals affirmed this decision, and Hill now continues his challenge to the trial court’s denial of his motion to suppress on appeal to this Court.²

II.

Hill argues on appeal that the detectives seized him in violation of the reasonable-suspicion standard adopted in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). His assignment of error asserts that the detectives "lacked a reasonable, articulable suspicion that [he] was engaged in criminal activity when he was found in a high crime area and did not respond to the officers’ commands to show his hands." Appellant’s Br. at 1. This argument rests on two assumptions: First, that the seizure in this case occurred when Hill refused to "show his hands,"³ and second, that a Terry seizure can

832 S.E.2d 37

take place only when the suspect is "engaged in criminal activity," id. We disagree with both assumptions.

A.

A Fourth Amendment seizure of a person occurs either by physical force or submission of the person to the assertion of law enforcement authority. California v. Hodari D. , 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ; see also Hall v. Commonwealth , 280 Va. 566, 570-71, 701 S.E.2d 68 (2010) ; Bristol v. Commonwealth , 272 Va. 568, 573, 636 S.E.2d 460 (2006) ; McCain v. Commonwealth , 261 Va. 483, 491, 545 S.E.2d 541 (2001). The detectives’ commands for Hill to show his hands did not, by themselves, result in a seizure because Hill never submitted to this assertion...