Johnson v. Commonwealth of Va.
| Decision Date | 17 May 2011 |
| Docket Number | Record No. 0768-10-1 |
| Parties | DAVID CHARLES JOHNSON v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
Present: Judges Elder, Petty and Alston
Argued at Chesapeake, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
David Charles Johnson (appellant) appeals from his bench trial conviction for possession of more than one-half ounce but less than five pounds of marijuana with intent to sell in violation of Code § 18.2-248.1. On appeal, appellant contends the trial court erroneously denied his motion to suppress the marijuana, which he argues was found as a result of an unconstitutional search of his vehicle. He also contends the evidence was insufficient to support his conviction because it failed to prove the quantity of marijuana he possessed was more than one-half ounce. We hold the search of appellant's vehicle was not unconstitutional but that the evidence was, in fact, insufficient to prove he possessed more than one-half ounce of marijuana. Thus, we remand for resentencing on the lesser-included offense of possession of marijuana with intent to distribute, based on the parties' consent to this remedy.
I.
On appeal of a ruling denying a motion to suppress, the appellant has the burden to show the trial court's ruling constituted reversible error. Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). Our examination of this issue Id (citations omitted).
Appellant contends the recent holding in Arizona v. Gant, 556 U.S._, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), which narrowed the scope of the automobile search that may be conducted upon the arrest of a recent occupant of a motor vehicle, rendered the search of his vehicle unconstitutional and required the suppression of all evidence obtained as a result. We disagree.
The United States Supreme Court held as follows in Gant:
Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
Id. at_, 129 S. Ct. at 1723-24, 173 L. Ed. 2d at 501 (emphases added). Thus, in deciding Gant, the Court specifically acknowledged the continuing viability of other bases justifying the search of an automobile or its passengers:
For instance, Michigan v. Long, 463 U.S. 1032[, 1049, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201, 1220] (1983), permits an officer to search a vehicle's passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is "dangerous" and might access the vehicle to "gain immediate control of weapons." If there is probable cause to believe a vehiclecontains evidence of criminal activity, United States v. Ross, 456 U.S. 798, 820-21[, 102 S. Ct. 2157, 2170-71, 72 L. Ed. 2d 572, 591] (1982), authorizes a search of any area of the vehicle in which the evidence might be found.... Ross allows searches for evidence relevant to offenses other than the offense of arrest....
Id. at_, 129 S. Ct. at 1721, 173 L. Ed. 2d at 498 (citations omitted).
Id. at 1049, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1220 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)); see Pierson v. Commonwealth, 16 Va. App. 202, 204-05, 428 S.E.2d 758, 759-60 (1993); Glover v. Commonwealth, 3 Va. App. 152, 156-57, 348 S.E.2d 434, 438-39 (1986). The facts that give rise to the reasonable suspicion guide the scope of what constitutes a reasonable search. See Terry, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911.
We applied these principles in Pierson, in which officers stopped the driver of a vehicle to issue a citation for an open container violation. 16 Va. App. at 203, 428 S.E.2d at 759. Whilethe driver and his passenger were still in the vehicle, the officers observed him hand something to his passenger, who attempted to hide the object first behind her leg and then under her arm. Id. When the officers asked the passenger what the object was, she "replied that she did not 'have anything, ' but 'at that time a velour bag fell out from under her arm.'" Id. at 204, 428 S.E.2d at 759. Fearing the bag might contain a weapon, the officers seized it and discovered it contained drugs rather than a weapon. Id. We held that, "during a lawful stop of defendant's vehicle, Officer Tosloskie observed suspicious and furtive conduct under circumstances that prompted understandable concern for his security, and he acted reasonably and appropriately to minimize the threat." Id. at 205, 428 S.E.2d at 760. We held those facts satisfied Long's requirement that "the police officer [must] possess[] a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons."1 Long, 463 U.S. at 1049, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1220 (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906).
Similarly here, the evidence supported a finding that a firearm may have been present in appellant's vehicle, thereby supporting a limited search of the vehicle. Officer Giles approached appellant's vehicle in a high crime neighborhood known for robberies and narcotics because the vehicle was improperly stopped on the side of the road facing oncoming traffic. When Officer Giles pulled his marked police cruiser to a stop facing appellant's front windshield and activated his lights, appellant, the vehicle's driver, "looked at [Officer Giles]" and immediately began to engage in what Giles viewed as furtive movements. Appellant "flipped his shoulder," and with his right arm, appellant appeared to be "shoving something underneath or behind the driver's seat," in an apparent effort to conceal something. Officer Giles testified that appellant's furtive movements caused him to fear appellant might be attempting to hide a weapon and caused Giles to be concerned "for officer safety." When Officer Giles' back-up officer arrived and stood with the three occupants outside the car, Giles began to check for weapons only in the area of the vehicle toward which appellant had directed his furtive movements. See Glover, 3 Va. App. at 155, 157, 348 S.E.2d at 437, 438 ().
Here, the evidence, viewed in the light most favorable to the Commonwealth, supports the conclusion that Officer Giles' actions were objectively reasonable and, therefore, constitutionally justified under the facts as they existed at the time of the detention and search, both (1) so that Giles could proceed safely with the original purpose of the encounter, which was to address the parking violation, without fear that appellant or one of his two passengers would leave the area at the rear of the car where they had been ordered to remain in order to re-enter the car and obtain a weapon and (2) so that Officer Giles could "ensure that there were no... weapons within [appellant's] immediate grasp before permitting him to reenter his automobile."2 Long, 463 U.S. at 1035-36, 1049, 103 S. Ct. at 3473, 3481, 77 L. Ed. 2d at 1210-11, 1220-21 ().
In the area toward which appellant had directed his furtive movements, Officer Giles observed a lunch cooler which was large enough to contain a weapon. As Officer Giles prepared to pick up the lunch cooler to look inside, he noted the distinctive "odor of marijuana coming from that area." At that point, Officer Giles had both reasonable suspicion to look inside the cooler for a weapon and probable cause to check the cooler for marijuana. See Pierson, 16 Va. App. at 204, 428 S.E.2d at...
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