Kidd v. Com.
| Decision Date | 02 July 2002 |
| Docket Number | Record No. 1887-00-2. |
| Citation | 565 S.E.2d 337,38 Va. App. 433 |
| Parties | Antonio Lamont KIDD v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
Christine A. Cestaro, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Jennifer R. Franklin, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Present: Judges BENTON, ANNUNZ TATA and HUMPHREYS.
Antonio Lamont Kidd appeals his conviction, after a bench trial, for possession of cocaine with intent to distribute, in violation of Code § 18.2-248. Kidd contends that the trial court erred in refusing to grant his motion to suppress the evidence against him, and in finding the evidence sufficient as a matter of law to sustain the conviction.
On appeal of a motion to suppress and where the sufficiency of the evidence as a matter of law is questioned, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible from the evidence.1 In addition, when we review the trial judge's refusal to suppress evidence, we consider the "evidence adduced at both the trial and the suppression hearing."2
So viewed, the evidence presented below established that on January 1, 2000, between 2:00 a.m. and 3:00 a.m., City of Richmond Police Officer James Hannah was patrolling an area near Mosby Court and Raven Street. Hannah had gotten out of his patrol car and was patrolling the area on foot when he observed Kidd, standing in the shadows about 100 yards away, leaning against a wall near some apartments. As Hannah watched Kidd, he observed one gentleman "coming in and out of an apartment" located to the right of where Kidd was standing. The gentleman "went in and out a couple times" and "kept going up to [Kidd]." Hannah then saw "a couple women [sic] come from around the front of the building and walk up to [Kidd]." Hannah testified The woman then left, while the other woman stayed behind. Hannah testified that "[t]hen there was a hand-to-hand with them, then she left around the opposite side of the building.. .." Hannah could not see the items that were being exchanged.
Hannah subsequently radioed members of his unit, who were in a van nearby. He notified them that he had observed a man fitting Kidd's description behind the apartments on Raven Street, near the stoop, and that he had observed what he believed to have been a hand-to-hand transaction, "possibly a drug transaction."
Approximately five seconds later, Officer John Cary and another officer arrived on the scene. The officers first noticed that the ground near where Kidd was standing was "littered" with "over hundreds" of shell casings from what appeared to be "semi[-]automatic pistol fire and shotgun shells, empty shotgun shells that had been expended."3 Cary observed Kidd standing on the stoop at the back of the apartment building. There was another man standing beside Kidd. Cary saw Kidd hand the man what "looked like a large wad of money." The man then went into the nearby apartment.
At that point, Kidd had "his right hand in his right side." He then sat down on the stoop and rolled over onto his right side, still keeping his right hand out of the officers' sight. Because of the shell casings on the ground and because the officers had heard shooting in the area shortly before they approached Kidd, Cary asked to see both of Kidd's hands. Cary testified "that [Kidd] was still fidgeting around with his right hand and then he eventually produced it."
Cary asked Kidd to stand. Kidd, who was wearing drawstring sweatpants stood and Cary immediately observed an "abnormal protrusion" in the "front of [Kidd's] crotch area." At that time, Cary began to pat Kidd down, patting down his crotch area first, as he suspected the item was a weapon. Cary felt that the object had a hard edge, but did not know what it was. He then pulled Kidd's "sweatpants back" and saw it was a change purse, with a zipper on one edge. The purse was tied to one of the drawstrings, and Cary used the string to draw the purse out of Kidd's sweatpants. Kidd then stated, "that's all I've got, you can check me." In response, Cary pulled back Kidd's sweatpants once again, "grabbed the inside of [Kidd's] boxer[] [shorts] and pulled [them] out the same way [he had pulled] his sweatpants and looked inside." He found a plastic baggie with individual baggies inside of it, just above Kidd's genital area. Cary testified that he could see the top of Kidd's genitals when he conducted the search.
Cary removed the baggie and later determined that it contained 36 individual baggies holding a total of 2.984 grams of cocaine. Cary found $30.00 in the change purse.
Prior to trial, Kidd filed a motion to suppress the evidence against him, arguing Kidd was unlawfully detained and searched, and that the officers unlawfully conducted a strip search and visual body cavity search. The trial court denied the motion.
At trial, Officer Hannah, who was qualified as an expert to testify regarding drug distribution, testified that the items found on Kidd's person were not consistent with personal drug use. Hannah based his opinion on the manner in which the cocaine was packaged. He testified that "the dosage in each one is each individual hit would be like taking a dosage." Hannah further testified that the Raven Street area was a high-crime area, with "a lot of shootings ... [and] a whole lot of drug activity...."
At the close of the Commonwealth's evidence, Kidd once again raised a motion to suppress, arguing the same grounds as before. The trial court again denied the motion, on the basis of our holding in Hughes v. Commonwealth, 31 Va.App. 447, 458, 524 S.E.2d 155, 161 (2000), finding that Kidd voluntarily consented to a pat-down search of his underwear and that there was no body cavity search.
Finally, Kidd raised a motion to strike at the close of evidence, contending tha the Commonwealth failed to establish he intended to distribute the drugs. The trial court denied the motion, finding the amount of the drugs and the packaging sufficient evidence of intent, and found Kidd guilty of the charge.
On appeal, Kidd first argues the trial court erred in refusing to grant his motion to suppress on the ground that he was illegally detained. Kidd contends that he was detained at the point Officer Cary asked him to stand and show his hands.
The Fourth Amendment to the Federal Constitution provides that "[t]he right of the people to be secure in their persons, ... and effects, against unreasonable searches and seizures, shall not be violated."4 Thus, lilt, is firmly established that warrantless searches and seizures are per se unreasonable, subject only to a few specifically-established and well-delineated exceptions."5 "`[T]he Commonwealth has the burden of proving the legitimacy of a warrantless search and seizure.'"6 Moreover, "[w]hether the Fourth Amendment has been violated `"is a question of fact to be determined from all the circumstances."'"7
The Commonwealth concedes that the initial encounter between Kidd and Officer Cary was "non-consensual." Therefore, "[i]n order to justify [the] seizure, [Officer Cary] must have [had] a `reasonable and articulable suspicion of criminal activity on the part of the defendant.'"8 In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.9 To establish this, "[a] general suspicion of some criminal activity is enough, as long as the officer can, based on the circumstances before him at the time, articulate a reasonable basis for his suspicion."10 Moreover, "[w]hen determining if reasonable suspicion exists, courts must consider that `[t]rained and experienced police officers ... may be able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.'"11
Here, it is clear that Officer Cary had sufficient reasonable suspicion that criminal activity was afoot to support a lawful detention of Kidd. Moreover, contrary to Kidd's argument, the fact that Hannah did not see and could not identify the items that were exchanged in the hand-to-hand transactions he observed, does not preclude a finding of reasonable suspicion under these circumstances.12
Kidd next argues that Officer Cary conducted an unlawful pat-down of his person. However, "[u]nder settled principles, once an officer has lawfully detained an individual, `he is "authorized to take such steps as [are] reasonably necessary to protect [his and others'] personal safety and to maintain the status quo during the course of the [detention]."`"13
An officer may preserve the status quo by ordering the person detained to place his hands where the officer can see them. Additional information may provide the basis for a frisk of the person for weapons. An officer "may conduct a limited pat-down search of the suspect's outer clothing to search for weapons if the officer reasonably believes, based on specific and articulable facts, that the suspect might be armed and dangerous." ... Additional factors appropriate for consideration may include the reputation of the neighborhood as a high-crime area.14
Indeed, "[i]n deciding whether to make a stop or effect a pat-down search, an officer is `entitled to rely upon the totality of the circumstances-the whole picture.'"15 "The totality of the circumstances includes the character of the offense.'"16 This Court has held that "`suspicion of narcotics possession and distribution gives rise to an inference of dangerousness.'"17
Thus, the protective pat-down search conducted here was reasonable in light of the fact that Cary had a...
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