Lantion v. Commonwealth of Virginia, Record No. 2617-05-4 (Va. App. 12/18/2007), Record No. 2617-05-4

CitationRecord No. 2617-05-4
Case DateDecember 18, 2007
CourtCourt of Appeals of Virginia

Page 1

Record No. 2617-05-4
Court of Appeals of Virginia, Richmond, Alexandria.
December 18, 2007.
April 3, 2007.
February 13, 2007

Upon Rehearing En Banc

From The Circuit Court of Fairfax County, Circuit Court No. FE-2005-867 Gaylord L. Finch, Jr., Judge

Laura E. Byrum (Petrovich & Walsh, P.L.C., on brief), for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Clements, Kelsey, McClanahan,. Haley, Petty and Beales



A jury convicted Craig M. Lantion of possessing cocaine. On appeal, Lantion argues the trial court erred by not granting his pretrial motion to suppress. A panel of our Court agreed with Lantion and reversed his conviction. Upon rehearing this matter en banc, we conclude that the trial court did not err in denying Lantion's motion to suppress. We thus affirm Lantion's conviction.


On appeal, we address the legal issues arising from a suppression motion "only after the relevant historical facts have been established." Logan v. Commonwealth, 47 Va. App. 168, 171, 622 S.E.2d 771, 772 (2005) (en banc). We review the facts developed in the trial court "in the light most favorable to the Commonwealth, giving it the benefit of any reasonable

Page 2

inferences." Kyer v. Commonwealth, 45 Va. App. 473, 477, 612 S.E.2d 213, 215 (2005) (en banc) (citation omitted).

So viewed, the evidence showed that Officer Swartz received a report of domestic violence at 10:30 a.m. on New Year's Day. He arrived at the residence seven minutes later and was invited into the living room by the woman who had made the report. She explained that she, her boyfriend, and his friend had been having a party to celebrate the New Year. She claimed her boyfriend assaulted her when she refused to have sex with his friend in exchange for cocaine. Her boyfriend left the apartment, she added, before the officer arrived.

While the woman explained what had happened, she maintained eye contact with the officer. When Officer Swartz asked her whether anyone else was still in the residence, however, she immediately "looked away" and began curiously "moving back and forth." Appearing nervous and disheveled, she gave no answer to the officer's question. He asked again. She finally replied that "somebody" was in the bedroom. Officer Swartz again followed up, asking exactly who was in the bedroom. She said "C" and could not provide a full name.

The woman walked the officer back to the bedroom door. The door was closed. It had a fist-sized hole punched all the way through the door by the doorknob. Officer Swartz opened the door and observed a fully clothed adult male lying on top of the bed, apparently sleeping. Swartz woke him and asked him "numerous times" to identify himself. He refused to do so. The woman interjected that "he was not involved." Swartz then asked him if he had any weapons in his possession. He said he had a knife.

Suspecting the unidentified man to be the boyfriend's "friend" involved in the earlier sex-for-drugs scheme, Officer Swartz detained the man and simultaneously frisked him for weapons. Officer Swartz felt an object in the man's right pocket which he believed to be a knife. Swartz emptied the pocket and found a knife. He felt another object in the man's left pocket. He

Page 3

reached into that pocket and "grabbed everything in the pocket and pulled it all out." Everything came out "in one big handful" — a second knife, money, and a rock of cocaine. Officer Swartz arrested the man, later identified as Lantion, for possessing cocaine.


"Though the ultimate question whether the officers violated the Fourth Amendment triggers de novo appellate scrutiny, we defer to the trial court's findings of `historical fact' and give `due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.'" Slayton v. Commonwealth, 41 Va. App. 101, 105, 582 S.E.2d 448, 449-50 (2003) (citation omitted). "To prevail on appeal, `the defendant must show that the trial court's denial of his suppression motion, when the evidence is considered in the light most favorable to the prosecution, was reversible error.'" Id. at 105, 582 S.E.2d at 450 (quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003)).

At his suppression hearing, Lantion argued that Officer Swartz unlawfully detained him and frisked him for weapons. These constitutional violations were compounded, Lantion contends, when Officer Swartz exceeded the proper scope of a weapons frisk by pulling cocaine out of Lantion's pocket. The trial court rejected each of these arguments, as do we.


Before addressing whether Lantion's seizure was unlawful, we must first determine when it took place.1 Lantion asserts that his detention occurred "the instant" Officer Swartz "walked into the bedroom of the private residence where Lantion was asleep and woke Lantion by identifying himself as a police officer." At that point, however, Officer Swartz was an invited

Page 4

guest in the apartment and had been escorted to the bedroom by the victim. Officer Swartz did not, by his mere presence, seize every occupant of the apartment. Nor did he seize Lantion by simply asking him for his identity. As long as an officer refrains from inducing cooperation by coercive means, he needs no suspicion of criminality to '"pose questions'" or '"ask for identification'" from an otherwise undetained suspect. Barkley v. Commonwealth, 39 Va. App. 682, 691, 576 S.E.2d 234, 238 (2003) (quoting United States v. Drayton, 536 U.S. 194, 201 (2002)).2

No evidence of coercion exists in this record. Officer Swartz did not draw his weapon, corner Lantion in the room, order Lantion not to move, or in any way threaten Lantion physically or verbally. Nor did he make a display of authority simply by being present in the room. We accept that, from Lantion's subjective perspective, he may have been intimidated simply by being in the same room with a police officer in the midst of an ongoing investigation. The objective reasonable person standard, however, "presupposes an innocent person." Florida v. Bostick, 501 U.S. 429, 438 (1991) (emphasis in original); see also Baldwin v. Commonwealth, 243 Va. 191, 197, 413 S.E.2d 645, 648 (1992); Barkley, 39 Va. App. at 692, 576 S.E.2d at 239. An innocent person — which, in this case, would be someone without cocaine in his pocket — would not have felt the unique anxieties weighing upon Lantion.

For these reasons, we reject Lantion's argument that Officer Swartz seized him by entering the bedroom and rousing him from sleep. Under settled law, "a seizure occurs when a law enforcement officer, by physical force or some display of authority, restrains in some manner a citizen's freedom of movement. Only when such restraint is imposed is there a basis for invoking Fourth Amendment safeguards." McCain v. Commonwealth, 261 Va. 483, 490-91,

Page 5

for purposes of the weapons frisk. It is at that point we must judge the lawfulness of the investigatory detention.


As its text makes clear, the Fourth Amendment "does not proscribe all seizures, only those that are `unreasonable.'" Barkley, 39 Va. App. at 691, 576 S.E.2d at 238 (citations omitted). While an arrest requires probable cause, a mere investigatory stop requires only a "reasonable suspicion" that criminal activity "may be afoot." United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989), and Terry v. Ohio, 392 U.S. 1, 30 (1968)). The likelihood of criminality "need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard" applicable in other contexts. Id. at 274 (citing Sokolow, 490 U.S. at 7). Thus, '"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.'" Baldwin, 243 Va. at 195, 413 S.E.2d at 647 (quoting Terry, 392 U.S. at 22).

To be sure, "the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal — to enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges." 4 Wayne R. LaFave, Search and Seizure § 9.5(b), at 482 (4th ed. 2004) (citations and footnote omitted). In some cases, a '"brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information'" may represent the most reasonable response an officer can give under the circumstances. Simmons v.

Page 6

Commonwealth, 217 Va. 552, 554-55, 231 S.E.2d 218, 220 (1977) (quoting Adams v. Williams, 407 U.S. 143, 146 (1972)).3

Equally important, we must consider the "totality of the circumstances — the whole picture," Baldwin, 243 Va. at 199, 413 S.E.2d at 649 (citation omitted), and not employ the rejected "divide-and-conquer" approach, Arvizu, 534 U.S. at 274, sometimes used to separate a composite fact pattern into a series of seemingly innocuous details. The factual circumstances in aggregate, not in isolation, determine the reasonableness of a police officer's actions. Id.

Approaching the factual record from that vantage point, we believe the totality of the circumstances justified a reasonable suspicion that Lantion was the second male (the boyfriend's "friend") involved in the earlier sex-for-drugs scheme. At the time he seized Lantion, Officer Swartz knew the following:

• The victim reported she had been assaulted for refusing to participate in the sex-for-drugs...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT