Lansdown v. Com., 822157

• Citation: 308 S.E.2d 106,226 Va. 204
• Decision Date: 14 October 1983
• Docket Number: No. 822157,822157
• Parties: Harold LANSDOWN v. COMMONWEALTH of Virginia. Record
• Court: Supreme Court of Virginia

Page 106

308 S.E.2d 106

226 Va. 204

Harold LANSDOWN v. COMMONWEALTH of Virginia.

Record No. 822157.

Supreme Court of Virginia.

Oct. 14, 1983.

John F. Lanham, Nikolas E. Parthemos, Leesburg (Hall, Monahan, Engle, Mahan & Mitchell, Leesburg, on briefs), for appellant.

Elizabeth J. Stewart, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

CARRICO, Chief Justice.

Convicted by a jury of two counts of robbery and two counts of use of a firearm in the commission of robbery, the defendant, Harold Lansdown, seeks reversal of his convictions on the grounds the trial court erred in denying a motion to suppress evidence and in granting certain instructions. Finding no error in either respect, we will affirm the convictions.

The evidence shows that around 5:40 a.m. on January 29, 1981, two masked men robbed Ronald and Nancy Evans in their home at Lenah in Loudoun County. Among other things, the robbers took Ronald Evans' Gulf credit card and a string of rosary beads belonging to Nancy Evans.

About 7:30 p.m. on the same date, Officer Stephen Missouri of the Arlington County Police Department observed a van speeding through an Arlington intersection. Activating his red light and siren, Missouri attempted to stop the van. In an apparent effort by its driver to evade arrest, the van sped away, prompting Missouri to radio for assistance. With Missouri in pursuit, the van exceeded 80 m.p.h., changed lanes, and forced other motorists off the road, "almost striking several." The van ultimately came to a halt in an unlit area.

With his service revolver drawn, Missouri approached the van, which had "no rear windows or side windows." He ordered the occupants from the vehicle, and three male subjects exited. The defendant was one of the three, but was not the driver. ¹ Although the defendant gave Missouri his correct name, he and his companions could produce no personal identification and no registration for the van.

Within two or three minutes, Officer Richard Alt arrived on the scene in response to Missouri's call for assistance. Missouri ordered the three subjects to place their hands on the van, and while Missouri stood guard, Alt proceeded to "pat [them] down."

As Alt was "patting ... down" the defendant, who was wearing a leather jacket, the officer felt a hard object in a shirt pocket. Alt reached under the defendant's jacket into the shirt pocket and removed what turned out to be a rectangular brass box. With the same motion, Alt inadvertently pulled from the pocket a Gulf credit card and a string of rosary beads. ² The credit card had been issued to Ronald Evans.

When asked where he got the credit card, the defendant said he found it in the back of the van. According to the testimony of Alt, he then placed the defendant under arrest for possession of a stolen credit card and proceeded to conduct a search of the defendant's person. Missouri testified, however, that Alt arrested the defendant after the search. In any event, the search produced several items of jewelry, some of which had been stolen in the robbery at the Evans' home earlier in the day.

After the defendant was arrested, he was asked again where he got the credit card. This time, he replied that he had found it at a gas station in Washington, D.C., and that he intended to return it to its owner. The defendant was then taken to the police station and advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In subsequent interviews with Officer Missouri, the defendant stated diversely that he found the credit card in the back of the van, that he found it at a filling station, and that he received it in exchange for marijuana.

Officer Missouri's investigation of the credit card theft ultimately led him to Mr. and Mrs. Evans and to consultation with Loudoun County authorities. On March 23, 1981, two Loudoun officers journeyed to the Arlington County Police Department. The defendant was brought from jail and placed in an interview room, where he was met by Officer Missouri and Arlington Detective James Hensley. The detective read the defendant the Miranda rights, and the defendant signed a form containing the rights and stating that he understood them. The defendant also signed a form waiving his right to counsel and reciting that he was willing to make a statement and to answer questions.

Missouri first questioned the defendant concerning a number of unrelated Arlington offenses and then interrogated him about the Evans robbery. Within two to seven minutes of the time the defendant was given the Miranda warnings, Missouri left the room and the two Loudoun officers entered. They proceeded to question the defendant about the items discovered on his person when arrested in Arlington. He said that he had found the credit card at a gas station, that the rosary beads belonged to his sister, and that the jewelry was his girlfriend's property.

I. Suppression of Physical Evidence

In a pretrial motion, the defendant sought to suppress the credit card, rosary beads, and jewelry. The trial court denied the motion. The court held that the circumstances existing on the night in question justified the belief that the defendant was engaged in "possibly criminal behavior" and warranted concern by the police officers for their safety. It was proper, therefore, the court said, to order the defendant from the van and to frisk him for weapons. The credit card and rosary beads, the court stated, were discovered inadvertently in the frisk for weapons and, hence, were admissible. With respect to the jewelry, the court found it was lawfully seized in a search incident to arrest and, for this reason, was admissible.

The defendant contends the trial court erred in refusing to suppress the items in dispute. He argues that, as a mere passenger in a vehicle whose driver was charged only with traffic infractions, he was not subject to either detention or search. Thus, he concludes, the items were products of an illegal detention, search, and seizure and should have been excluded from evidence.

The defendant submits that his case is controlled by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Va.Code § 19.2-83. In Terry, the Court considered the narrow question "whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest." 392 U.S. at 15, 88 S.Ct. at 1877. Resolving this question, the Court recognized the general principle that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Id. at 22, 88 S.Ct. at 1880.

Particularizing, the Court stated that where a police officer observes unusual conduct which reasonably leads him to conclude, in light of his experience, that "criminal activity may be afoot" and that the suspect "may be armed and presently dangerous," the officer may after identifying himself conduct a limited search of the subject's outer clothing "to discover weapons which might be used to assault him." Id. at 30, 88 S.Ct. at 1884. The Court stated further that "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." Id. at 21, 88 S.Ct. at 1880. The test, the Court said, is an objective one: "would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Id. at 21-22, 88 S.Ct. at 1880.

Virginia Code § 19.2-83, cited by the defendant, is entitled "Authority of police officers to stop, question and search suspicious persons." Its text reads:

Any police officer may detain a person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or possesses a concealed weapon in violation of § 18.2-308, and may require of such person his name and address. Provided further, that such police officer may, if he reasonably believes that such person intends to do him bodily harm, search his person for a dangerous weapon, and if such person is found illegally to possess a dangerous weapon, the police officer shall take possession of the same and dispose of it as is provided by law.

In Simmons v. Commonwealth, 217 Va. 552, 231 S.E.2d 218 (1977), we considered both the Terry holding and Va.Code § 19.2-83. We noted that the language of the Code section which permits a police officer to detain a person he reasonably suspects "is committing, has committed or is about to commit a felony" is more stringent than the language of Terry which permits an officer to detain a person where the officer observes unusual conduct which leads him reasonably to conclude that "criminal activity may be afoot." 217 Va. at 557, 231 S.E.2d at 221-22. We emphasized, however, in affirming the trial court's decision, that our statute also permits a police officer to stop a person he reasonably suspects of possessing a concealed weapon and, if he reasonably believes the person intends to do him bodily harm, may search the subject's person for a weapon. Id., 231 S.E.2d at 222. In this latter respect, our statute comports fully with Terry.

We believe Simmons provides substantial support for affirming the trial court's decision here. Indeed, from a factual standpoint, the present case is even stronger than Simmons for upholding the action of the police.

In Simmons, John Gillen, a patrolman assigned to duty in a highrise business community in Arlington, received a complaint during daylight hours of a suspected burglary in an office building. Investigating,...