King v. Commonwealth
Decision Date | 08 May 2012 |
Docket Number | Record No. 0513-11-2 |
Court | Virginia Court of Appeals |
Parties | BRIAN LAMONT KING v. COMMONWEALTH OF VIRGINIA |
Present: Chief Judge Felton, Judges Elder and Humphreys Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Catherine French, Supervising Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Following the denial of his motion to suppress by the Circuit Court of the City of Richmond ("trial court"), Brian Lamont King ("appellant") entered a conditional guilty plea and was convicted of possession of cocaine with the intent to distribute in violation of Code § 18.2-248. On appeal, appellant contends that the trial court erred in denying his motion to suppress, arguing that the officer had neither reasonable articulable suspicion of criminal activity to detain him nor probable cause to search him. For the following reasons, we affirm the judgment of the trial court.
When reviewing the "denial of a suppression motion, we review the evidence 'in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.'" Glenn v. Commonwealth, 49 Va. App. 413, 416, 642 S.E.2d 282, 283 (2007) (en banc) (quoting Kyer v. Commonwealth, 45 Va. App. 473, 477, 612 S.E.2d 213, 215 (2005) (en banc)), aff'd, 275 Va. 123,654 S.E.2d 910 (2008). So viewed, the evidence showed that around 7:30 p.m. on November 6, 2009, Richmond City Police Officers Custer and Ferguson observed a parked car containing four occupants in an area known for a high incidence of criminal and illegal drug activity.1 As they drove their police cruiser past the parked car, all four occupants "sat back" and "slouched down" in their seats. Officer Custer recognized one of the men in the car, Long, who was in the rear passenger seat. Officer Custer knew Long from frequent contacts in the past. The officers turned their cruiser around and stopped behind the parked car. When Officer Custer approached the car to speak with the occupants, he noticed appellant, who was in the front passenger seat, "turn his body away from [Officer Custer] as he was sitting in the seat and make a stuffing motion with his right hand inside of his mouth." Based on his training and experience, Officer Custer suspected that appellant was "trying to swallow drugs or conceal drugs in [his] mouth." Officer Custer testified that, at the time, he thought it was
After appellant stepped out of the car, Officer Custer performed a protective pat down of appellant's outer clothing for weapons. He then asked appellant what he had in his mouth. In a muffled tone, appellant denied having anything in his mouth. However, Officer Custer testified that he saw "a large bulge in [the] left side of [appellant's] cheek." Officer Custer asked appellant to open his mouth. When appellant opened his mouth, Officer Custer "observed a clear plastic baggy, which appeared to contain an off-white, rock-like substance, which [he] believed to be crackcocaine." After Officer Custer told appellant numerous times to spit out whatever was in his mouth, appellant eventually did so. Appellant was then arrested for possession of cocaine.2
Prior to trial, appellant asked the trial court to suppress the evidence of the cocaine that he spit from his mouth, arguing that Officer Custer unlawfully searched his mouth without probable cause to believe that contraband was within. The trial court denied appellant's motion to suppress that evidence, stating:
On appeal, appellant contends that the trial court erred in denying his motion to suppress, arguing that the officer lacked reasonable articulable suspicion of criminal activity to detain him and probable cause to search him. Based on our review of the record on appeal, we conclude that the trial court did not err in denying appellant's motion to suppress the cocaine.
The trial court's findings of historical fact are binding on appeal "unless 'plainly wrong.'" McGee v. Commonwealth, 25 Va. App. 193, 198 & n.1, 487 S.E.2d 259, 261 & n.1 (1997) (en banc). However, we review de novo the trial court's application of defined legal standards to the particular facts of a case. Ornelas v. United States, 517 U.S. 690, 697 (1996).
"The Fourth Amendment protects 'persons' from 'unreasonable searches and seizures.'" Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) ).
McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 515-16 (2008) (citations omitted).
When, as occurred here, an officer conducts an investigatory stop, the officer "must have 'a reasonable suspicion, based on objective facts, that the [person] is involved in criminal activity.'" Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722 (1997) (alteration in original) (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)). Jackson, 267 Va. at 673, 594 S.E.2d at 598 (quoting Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). It "requires only 'some minimal level of objective justification' for making such a stop." Branham v. Commonwealth, 283 Va. 273, 280, 720 S.E.2d 74, 78 (2012) (quoting I.N.S. v. Delgado, 466 U.S. 210, 217 (1984)). "Whether an officer has a reasonable suspicion to justify such a detention is 'based on an assessment of the totality of the circumstances.'" Id. (quoting Harris v. Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145 (2008)). A police officer may "'draw on [his] own experience and specialized training to make inferences from and deductions about the cumulative information available to[him] that might well elude an untrained person.'" Id. (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)).
"'[P]robable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Jones v. Commonwealth, 277 Va. 171, 178, 670 S.E.2d 727, 731 (2009) (alteration in original) (quoting United States v. Grubbs, 547 U.S. 90, 95 (2006)).
Derr v. Commonwealth, 242 Va. 413, 421, 410, S.E.2d 662, 666 (1991) (quoting Saunders v. Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977)).
"[T]he determination whether a law enforcement officer had sufficient probable cause to seize contraband from a person in the course of a Terry [v. Ohio, 392 U.S. 1 (1968),] pat-down search requires a consideration of the totality of the circumstances surrounding the search, as well as a consideration of the officer's knowledge, training and experience." Cost v. Commonwealth, 275 Va. 246, 251, 657 S.E.2d 505, 507 (2008); see Harris v. Commonwealth, 241 Va. 146, 149, 400 S.E.2d 191, 193 (1991) ( ); Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976) ( ).
"When an officer has probable cause to arrest a person, the officer may search the person, particularly where the evidence is of a highly evanescent nature." Buck v. Commonwealth, 20 Va. App. 298, 304, 456 S.E.2d 534, 537 (1995); see Williams v. Commonwealth, 21 Va. App. 263, 463 S.E.2d 679 (1995) ( ).
Here, considering the totality of the circumstances, the facts were sufficient to establish both reasonable suspicion for appellant's detention at the time appellant was removed from the car...
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