Jones v. Com.

• Citation: 52 Va. App. 548,665 S.E.2d 261
• Decision Date: 26 August 2008
• Docket Number: Record No. 1069-07-2.
• Court: Court of Appeals of Virginia
• Parties: Jerald Vincent JONES v. COMMONWEALTH of Virginia.

665 S.E.2d 261

52 Va. App. 548

Jerald Vincent JONES v. COMMONWEALTH of Virginia.

Record No. 1069-07-2.

Court of Appeals of Virginia, Richmond.

August 26, 2008.

Karen L. Stallard, Supervising Appellate Defender (Office of the Appellate Defender, on briefs), for appellant.

Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FRANK, McCLANAHAN and HALEY, JJ.

HALEY, Judge.

Jerald Vincent Jones ("Jones") was convicted after a plea of guilty of possession of cocaine with the intent to distribute in violation of Code § 18.2-248. Jones entered his plea pursuant to an agreement allowing him to appeal the denial of his pretrial motion to suppress evidence of cocaine that police officers found inside of a bag in Jones' vehicle. Jones maintains that: 1) the police seized him in violation of the Fourth Amendment because they did not have a reasonable, articulable suspicion of criminal activity at the time of the seizure and 2) the subsequent search of a bag he dropped in the course of the seizure was likewise constitutionally infirm. For the following reasons, we disagree with Jones' arguments and affirm his conviction.

STATEMENT OF FACTS

A lengthy statement of relevant facts is necessary for resolution of this Fourth Amendment issue.

Sergeant Mauricio Tovar was a detective for three years and a supervisor for a year and one-half in the Narcotics Division of the Richmond Police Department. He and his partner, Detective Fred E. Bates, a five-year veteran of that Division, were on patrol in their vehicle at the Red Roof Inn during the night of March 3, 2006. They were in plain clothes, though each officer had a yellow emblem on his jacket identifying him as "Richmond Police."

Tovar described the Red Roof Inn as "known for the trafficking of drugs." Within the preceding two weeks, he had executed a search warrant there and recovered "several kilos of cocaine." Bates explained: "The Red Roof Inn has a known history for large narcotics transactions. It's right on the exit of 95. And that's where we've done numerous buys, take-downs, and also seizures of large narcotics at that hotel."

At 11:45 p.m., the officers noticed a white BMW backed into a parking space at the hotel. During a fifteen-minute period of observation, Jones did not leave the vehicle and no one approached it. But, as Bates testified, Jones was "looking down in [his] lap the entire time. I don't know what he's doing. I don't know if he's counting money or not...." Bates was asked what else made him suspicious that Jones may be involved in a narcotics transaction: "I have been doing it for 5 years. Narcotics deals never go down on time. If you set up a narcotics deal using an informant or undercover officer to meet someone, or someone to meet a dealer or a buyer, it never goes down on time. Someone is always late."

After the period of observation, the officers decided to walk over to the car and make inquiries. Bates approached the passenger's side and Tovar the driver's side. No lights were activated on the police vehicle, which was not blocking the BMW, nor did the officers draw their weapons.

Tovar: "I asked him like a couple of times, what are you doing ... he's using a Jamaican accent.... [A]nd then ... he starts to reach on the floorboard where I can't see.... I asked him to put his hands on the steering wheel." On cross-examination, Tovar specifically testified he said to Jones: "Can you put your hands on the steering wheel." Initially, Jones complied: "Hands are up. I can see them. That's fine. Does it a second time.... [S]tart reaching for the floorboard ... [with] ... the right hand." Because Tovar was on Jones' left side, Tovar "could not tell what's on the floorboard." At that point, Bates yelled: "Get him out of the car, Tovar. Get him out of the car."

Tovar continued:

I told him: Don't reach for the floorboard. If you reach for the floorboard, I'm going to assume you have a gun. And then prior to me opening the door, he starts reaching for the floorboard again ... [this was] the third time he went to the floorboard.... [A]t that point I started backing away as fast as I could from the car. And I did draw my gun at that point. And as his hands were coming up, in his right hand, he had a black bag.

The Commonwealth's attorney asked: "What was your concern as he's reaching for the floorboard that third time?" Tovar answered: "My concern was that I was going to get shot."

Bates had approached the passenger side with his flashlight. Bates:

I started looking in the backseat, and then I quickly noticed ... right behind the passenger seat was a large bowie knife ... the butt of the knife, the handle of it was resting up against the middle part of the seat ... the middle part of the console.... It was right next to [Jones] ... you can easily turn or barely even turn. You can use your right arm and grab the butt of the knife.

Bates responded affirmatively as to whether the knife was within arm's reach. "Q. What did you do once you saw the knife? A. I told Detective Sergeant Tovar that it was a knife right there, and get him out of the car." Bates continued: "[Tovar] is telling him to get out of the car, and no one is getting out of the car.... [Jones] was still talking to Sergeant Tovar.... And then with his right hand, I saw him going down underneath the seat ... near the middle hump of the vehicle." At that point, Bates continued,

I drew my gun ... and I started yelling: No, no, no. And he kept on. He kept on going for whatever was underneath the seat, and his hands were completely out of my view.... I was really scared.... Sergeant Tovar ... has his gun drawn ... and I saw [Jones] coming back up with a black object in his hand that was long.... I'm yelling: Stop it. Drop. Drop. Drop.

Jones stepped out of the car holding a black object, which he then tossed on the front driver's seat.

That object was a zippered bag, which Bates recovered. As Bates testified: "As soon as I grabbed it, I could feel ... something hard inside ... I didn't know what it was." On cross-examination, the following exchange occurred: "Q. Did it feel like a gun? A. I don't know.... It felt hard and that's— Q. So you didn't know it was a gun? A. [A] gun could be anything. It could have been a Derringer.... It was a hard object."

The bag contained a black metal electronic digital scale (with cocaine residue), 45 grams of cocaine hydrochloride, 27 grams of cocaine base and a small amount of marijuana. A photograph of the black bag taken on the car seat, and one taken with the scales, cocaine, and bills next to it for comparison as to size show that a reasonable fact finder could conclude that it could accommodate a small gun, a knife, or other weapon.¹

STANDARD OF REVIEW

Under our standard of review of the denial of a motion to suppress, the burden is on the appellant to demonstrate reversible error. Emerson v. Commonwealth, 43 Va.App. 263, 272, 597 S.E.2d 242, 246 (2004). We review the evidence, both adduced at the hearing on the motion and at trial. Blevins v. Commonwealth, 40 Va.App. 412, 420, 579 S.E.2d 658, 662 (2003), aff'd on other grounds, 267 Va. 291, 590 S.E.2d 365 (2004). We consider that evidence in the light most favorable to the Commonwealth, and grant to the Commonwealth all reasonable inferences that may be fairly deducible from that evidence. Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). And "we are bound by the trial court's findings of historical fact unless `plainly wrong' or `without evidence to support them.'" McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). However, despite the appellant's burden, and our deference to the Commonwealth and the trial court as to the evidence, it is our responsibility to review de novo questions of law and the "trial court's application of defined legal standards to the particular facts of a case." Watts v. Commonwealth, 38 Va.App. 206, 213, 562 S.E.2d 699, 703 (2002).

ANALYSIS

"Police officers are free to engage in consensual encounters with citizens, indeed, it is difficult to envision their ability to carry out their duties if that were not the case." Malbrough v. Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 4 (2008). "Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen." United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 2110, 153 L.Ed.2d 242 (2002).

Thus, in Londono v. Commonwealth, 40 Va.App. 377, 399, 579 S.E.2d 641, 651 (2003), we quoted with approval the following from McGee, 25 Va.App. 193, 487 S.E.2d 259: "An encounter between a law enforcement officer and a citizen in which the officer merely identifies himself and states that he is conducting an ... investigation, without more, is not a seizure within the meaning of the Fourth Amendment, but is, instead, a consensual encounter." Id. at 199, 487 S.E.2d at 262. See also, Barkley v. Commonwealth, 39 Va.App. 682, 691, 576 S.E.2d 234, 238 (2003).

Likewise, "interrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure." INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984). The police approached the defendant with "no show of force or authority that would cause a reasonable person to believe that he or she was compelled to remain at the scene of the encounter or otherwise cooperate with the police." Andrews v. Commonwealth, 37 Va.App. 479, 490, 559 S.E.2d 401, 407 (2002). "Thus, we conclude, Andrews was not `seized' within the meaning of the Fourth Amendment when [the police officer] first approached him and started asking him questions." Id.; see also McCain v. Commonwealth, 261 Va. 483, 490-91, 545 S.E.2d 541,...