James v. Com., 2367-94-2

• Court: Court of Appeals of Virginia
• Citation: 473 S.E.2d 90,22 Va.App. 740
• Docket Number: No. 2367-94-2,2367-94-2
• Parties: Ronald Eric JAMES, a/k/a Timothy Johnson v. COMMONWEALTH of Virginia. Record
• Decision Date: 30 July 1996

Page 90

473 S.E.2d 90 22 Va.App. 740 Ronald Eric JAMES, a/k/a Timothy Johnson
v.
COMMONWEALTH of Virginia. Record No. 2367-94-2. Court of Appeals of Virginia,
Richmond. July 30, 1996.

Page 91

Cullen D. Seltzer, Assistant Public Defender (David J. Johnson, Public Defender, on briefs), for appellant.

[22 Va.App. 743] Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: MOON, C.J., BAKER, J., and COLE, Senior Judge.

JOSEPH E. BAKER, Judge.

Ronald Eric James (appellant), also known as Timothy Johnson, appeals from his bench trial conviction by the Circuit Court of the City of Richmond (trial court) for possession of cocaine in violation of Code § 18.2-250. The sole issue presented is whether the trial court erred in denying appellant's motion to suppress evidence of the cocaine found on him during a pat-down search. Finding no error, we affirm the judgment of the trial court.

It is well established in Virginia that, on review of a trial court's denial of a motion to suppress, the appellate courts of this Commonwealth view the evidence in the light most favorable to the trial court's determination. E.g., Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980); Brown v. Commonwealth, 15 Va.App. 1, 7, 421 S.E.2d 877, 881 (1992). In light of Ornelas v. United States, 517 U.S. ----, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), it appears that in certain cases a deferential standard of review may no longer be appropriate. In Ornelas, Chief Justice Rehnquist wrote that henceforth, "as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Id. While generally calling for de novo review of reasonable suspicion and probable cause determinations, the Supreme Court "hasten[ed]" to add that a trial court's finding of "historical fact" should be reviewed only for "clear error" and noted that a reviewing court should "give due weight to inferences drawn from those [historical] facts by resident judges and local law enforcement officers." Id. Additionally, recognizing "that a police officer may draw inferences based on his own experience in deciding whether probable cause exists," id., the Supreme Court held that "[a]n [22 Va.App. 744] appeals court should give due weight to a trial court's finding that [an] officer was credible and [his or her] inference was reasonable." Id.

The record discloses that on May 27, 1994, Detective James P. Foust (Foust) of the Richmond Police Department and a detective named Burke (Burke) were looking for Charles Smyrie (Smyrie) in order to execute a felony warrant. At approximately noon, Burke drove into and stopped in a parking lot. A blue "Chevy Blazer," driven by Smyrie, pulled up next to Burke's vehicle. Smyrie was the "wanted person." Appellant was a passenger in the front seat of Smyrie's vehicle.

Burke asked Smyrie to get out of the car and began talking to him. Appellant addressed Burke, saying words to the effect of, "[W]hat's going on, why are you stopping, can I get out...." Foust told appellant to "hold on a second," then asked to talk to him. Appellant began "making gestures" with his hands, leaning down to the right where Foust could see only one of his hands and asked, "[W]hat's wrong?" Foust told appellant to "remain quiet" and to put his hands on the dashboard. At...