Lantion v. Commonwealth, Record No. 2617-05-4 (Va. App. 2/13/2007), Record No. 2617-05-4.

CitationRecord No. 2617-05-4.
Case DateFebruary 13, 2007
CourtCourt of Appeals of Virginia

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Unpublished Opinion

Record No. 2617-05-4.
Court of Appeals of Virginia, Alexandria.
February 13, 2007.

Appeal from the Circuit Court of Fairfax County 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: Judges Benton, Haley and Senior Judge Fitzpatrick.



A jury convicted Craig M. Lantion of possession of a controlled substance, cocaine. Lantion contends the trial judge erred in refusing his pre-trial motion to suppress evidence. We agree and reverse the conviction.


Under well established principles, when reviewing the trial judge's denial of Craig M. Lantion's motion to suppress evidence, we must consider the evidence in the light most favorable to the Commonwealth, the prevailing party at trial. Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). So viewed, the evidence proved a police officer went to a residence at 10:30 a.m. on New Year's Day to investigate a report of a domestic assault. When the officer arrived at the residence, the woman who made the report invited him into the living room. She told the officer she and her boyfriend were having a party to celebrate the New Year when her boyfriend

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grabbed her arm and neck after she refused his proposition that she have sex with his friend in exchange for cocaine. Her boyfriend fled the residence before the officers arrived. As she spoke to the officer in her living room, two other officers searched outside for her boyfriend.

As the officer conversed with the woman, he noticed she was disheveled but had no physical injuries. He testified the woman may have generally described the boyfriend's friend, but he "did not take any notes on that" and did not inquire whether the boyfriend's friend was still present or make any other inquiries about him. During the discussion, the officer asked her if anyone else was present in the residence. He testified she looked away from him and acted nervous. When he asked again, she said someone was in a bedroom. In response to the officer's inquiry about the person's name, she said it was "C."

The officer testified he walked with the woman to the bedroom. The officer opened the door to the bedroom and saw a man lying fully clothed and asleep on the bed. The officer woke the man and identified himself. During the encounter, the man rolled over and remained laying on the bed. When the officer repeatedly asked the man to identify himself, the woman interjected and told the officer the man "was not involved."

The man did not identify himself but asked the woman to get him a glass of water. After the woman returned with the water, the officer asked the man if he had any weapons. When he responded that he had a knife in his pocket, the officer "patted him down." The officer detected an object in the right front pocket and removed a pocketknife. He then "patted" the other front pocket, detected an object, and reached in to remove a second knife. The officer testified that when he removed the knife, he also removed the other contents of that pocket: money and a piece of cocaine wrapped in plastic. The officer then arrested the man and learned he was Craig Lantion.

Denying Lantion's motion to strike the evidence, the trial judge ruled as follows:

I find that the officer had reasonable, articulable suspicion to engage in the encounter with [Lantion]. I think once he did, the

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statement that [Lantion] made that he had a weapon justified his patting him down and taking the weapon from him, and I think in the course of that the drugs came out of the pocket as well along with that, and I think that that was all within the proper actions of a police officer investigating this particular — the particular allegations that were made and in further investigating the circumstances once he arrived on the scene and, therefore, the motion to suppress is denied.

At the conclusion of the trial, a jury convicted Lantion of possession of cocaine.


Lantion contends the trial judge erred in finding the officer had a reasonable articulable suspicion necessary to detain him. Acknowledging on brief that "[t]he prosecutor conceded at the suppression hearing that the initial encounter between [the officer and Lantion] was an investigative detention," the Commonwealth contends the detention was justified by the officer's reasonable belief Lantion "was the friend who was supposed to supply cocaine to [the woman's] boyfriend" and by the officer's further reasonable belief "a drug transaction might be afoot."

An investigative detention must be "supported at least by a reasonable articulable suspicion that the person seized is engaged in criminal activity." Reid v. Georgia, 448 U.S. 438, 440 (1980). The United States Supreme Court has expressly held that reasonable suspicion means more than an "inchoate and unparticularized suspicion or 'hunch.'" Terry v. Ohio, 392 U.S. 1, 27 (1968). In other words,

to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field, . . . the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual . . . .

Brown v. Texas, 443 U.S. 47, 51 (1979) (citations omitted).

When a police officer detains an individual "for the purpose of requiring him to identify himself, [the officer has] performed a seizure of his person subject to the requirements of the

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Fourth Amendment." Id. at 50. The objective facts in this record, however, simply did not support a lawful detention. Lantion's mere presence, asleep in the woman's residence after a New Year's party, did not create a reasonable suspicion he was involved in her dispute with her boyfriend. If a person's "presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime," Illinois v. Wardlow, 528 U.S. 119, 124 (2000), the officer's belief, in this case, that a guest asleep in the closed bedroom was somehow involved in the woman's complaint was not a reasonable suspicion.

Moreover, when the officer identified himself to Lantion and asked Lantion to identify himself, the woman specifically told the officer Lantion "was not involved." Despite the woman's statement to the officer that the man asleep in the bedroom had no connection to the complaint she had made involving her boyfriend, the officer continued to question Lantion. In his testimony, the officer provided no basis upon which he could have formed a reasonable belief that the man who was asleep in a closed bedroom was somehow involved in the woman's complaint. The officer explained his reason for questioning Lantion about his identity as follows:

In my mind, I believed that he was a friend, there was an assault that probably took place at that location, also a drug deal that probably was going to take place at that location.

I believed when I saw him — the reactions from [the woman], first not wanting to give me his name, that this could probably be the friend, the individual, that she had first mentioned.1

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Yet, when the officer was in the living room he had not asked the woman the name of the person whom her boyfriend had sought to involve. He also had not asked if the person was still in the residence. The officer cannot rely upon his own lack of inquiry to justify this intrusive detention.

The woman's clear statement to the officer that the man "was not involved" is significant. The presence of a man asleep in the bedroom was not a matter so unusual as to cause a reasonable belief the woman was falsely giving information about "C." After all, she called the police to make a complaint about the assault. Nothing in the record supports an inference that the woman, who had initiated contact with the police about the prior assault in her residence, would provide false information when they responded to her call. In view of the woman's specific identification of "C" as someone who "was not involved," the officer's contrary belief was unsupported. The officer's belief that Lantion was involved in the woman's dispute with her boyfriend, a belief that was more an "inchoate and unparticularized suspicion or 'hunch,'" Terry, 392 U.S. at 27, than a fair inference, "is simply too slender a reed to support the seizure in this case." Reid, 448 U.S. at 441. Reasonable suspicion is more than guesswork and supposition. See id. (concluding that the investigator's "belief that the petitioner and his companion were attempting to conceal the fact that they were traveling together" was an "unparticularized suspicion" and not a fair inference).

Additionally, even if we were to assume the initial detention was lawful, the officer's frisk of Lantion for weapons was not supported by a reasonable belief he was armed and presently dangerous, which is the standard that must exist to form the predicate for a frisk for weapons.

An officer may conduct a pat-down search for weapons if the officer can point to specific and articulable facts which reasonably lead him to conclude that criminal activity may be afoot and that the person subjected to the search may be armed and dangerous. See James v. Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92 (1996). The authority to conduct a pat-down search does

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not follow automatically from the authority to effectuate an investigative stop. See Williams v. Commonwealth, 4 Va. App. 53, 66, 354 S.E.2d 79, 86 (1987). "Only where the officer can 'point to particular facts from which he reasonably inferred that the individual was armed and...

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