McArthur v. Commonwealth

• Citation: 72 Va.App. 352,845 S.E.2d 249
• Decision Date: 28 July 2020
• Docket Number: Record No. 1793-19-2
• Parties: Aaron Emile MCARTHUR v. COMMONWEALTH of Virginia
• Court: Court of Appeals of Virginia

72 Va.App. 352

845 S.E.2d 249

Aaron Emile MCARTHUR

v.COMMONWEALTH of Virginia

Record No. 1793-19-2

Court of Appeals of Virginia.

JULY 28, 2020

Miriam Airington-Fisher (Airington, Stone & Rockecharlie, PLLC, on briefs), for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Malveaux and Athey

OPINION BY JUDGE CLIFFORD L. ATHEY, JR.

Aaron Emile McArthur ("McArthur") appeals his conviction in the Circuit Court of the City of Richmond for possession of a firearm by a convicted felon in violation of Code § 18.2-308.2. McArthur alleges that the trial court erred by: (1) denying his motion to suppress the firearm in violation of his Fourth Amendment right against unlawful searches, (2) admitting into evidence the entirety of his criminal history, (3) denying his motion to strike the evidence, and (4) denying his motion to set aside the verdict.

I. BACKGROUND

On May 12, 2018, Richmond Police Officer Michael Blaylock ("Officer Blaylock" or "Blaylock") initiated a traffic stop on a vehicle McArthur was driving for a defective fog light. After ascertaining McArthur's identity, Officer Blaylock asked McArthur if there were any weapons in the vehicle. McArthur stated that the vehicle was owned by his girlfriend and, as far as he knew, there were no weapons in her vehicle. McArthur then provided Blaylock with an identification card, which was passed along to Officer Carrie Griffith ("Officer Griffith" or "Griffith").

Officer Griffith returned to the police cruiser with the identification card and obtained criminal and driving information on McArthur from the mobile computer in the police cruiser. The information included an alert through the Virginia Department of Corrections that McArthur was thought to have been a member of the Crips gang during a previous incarceration. While Griffith was obtaining this information, Blaylock asked McArthur to consent to a search of his girlfriend's vehicle due to what Blaylock described as McArthur's "sketchy" demeanor. McArthur declined to consent to a search of the vehicle because he did not own the vehicle.

McArthur then called his girlfriend to see if she would consent to a search of her vehicle. During the entirety of the traffic stop, McArthur made no furtive movements around the cabin of the vehicle and was polite and cooperative with Blaylock.

When McArthur declined to consent to a search of his girlfriend's vehicle, Blaylock instructed McArthur to exit the vehicle so that he could conduct a "protective sweep." McArthur immediately complied with Blaylock's request and exited and stood at the rear of the vehicle. Upon exiting the vehicle, McArthur began to sweat profusely and nervously stated to his girlfriend on the phone that "they are locking me up." Blaylock then searched underneath the driver's seat where he found a 9mm handgun hidden from view. After discovering the firearm, Blaylock instructed Officer Griffith to place McArthur under arrest. Officer Griffith did not inform Blaylock of McArthur's alleged past gang affiliation until the search of the vehicle and arrest had been effectuated.

McArthur subsequently moved to suppress any evidence recovered during the search of the vehicle. McArthur argued that Blaylock lacked a reasonable articulable suspicion that he was armed and dangerous when he engaged in the protective sweep of the vehicle. The Commonwealth defended Blaylock's protective sweep by arguing, in part, that Blaylock had a reasonable articulable suspicion based on the imputed knowledge Officer Griffith obtained concerning McArthur's alleged prior gang affiliation and incarceration. The trial court denied the motion to suppress, stating, "[t]he factors that the Court relied on are the evasiveness of the defendant at the scene, the gang affiliation information from [the databases], the high crime area, the lack of cooperativeness, and all the other conduct the officer testified to and was reflected on the body cam."

At trial, McArthur moved to strike the Commonwealth's case at the conclusion of their case-in-chief and at the conclusion of all the evidence based, in part, upon the trial court's failure to suppress the admission into evidence of the firearm. McArthur was subsequently found guilty of possession of a firearm as a violent felon and moved to set aside the verdict as contrary to the law and the evidence. The trial court denied the motion to set aside the verdict before sentencing McArthur to five years’ incarceration. This appeal followed.

II. ANALYSIS

A. MOTION TO SUPPRESS

On appeal, when considering a challenge to the denial of a motion to suppress, the Court will review the decision de novo "when the defendant claims that the evidence sought to be suppressed was seized in violation of the Fourth Amendment." Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910 (2008). However, we are "bound by the [trial] court's findings of historical fact unless ‘plainly wrong’ or without evidence to support them" and "give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259 (1997) (en banc ). We also view the evidence in the light most favorable to the prevailing party, the Commonwealth, with all inferences fairly deducible from that evidence accorded to the Commonwealth. Hill v. Commonwealth, 297 Va. 804, 808, 832 S.E.2d 33 (2019).

1. REASONABLE ARTICULABLE SUSPICION

The Fourth Amendment to the United States Constitution protects individuals from unreasonable warrantless searches and seizures. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court permitted "a protective search for weapons in the absence of probable cause to arrest ... when a [police officer] possesses an articulable suspicion that an individual is armed and dangerous." Michigan v. Long, 463 U.S. 1032, 1034, 103 S.Ct. 3469, 3473, 77 L.Ed.2d 1201 (1983). "Recognizing the inordinate risk confronting the officer as he approaches a person seated in an automobile, the Court has extended such protective searches beyond the person, including areas of the passenger compartment of an automobile in which a weapon may be placed or hidden." Id.

Whether reasonable suspicion exists is "based on an assessment of the totality of the circumstances," Harris v. Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141 (2008), which "allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person," Branham v. Commonwealth, 283 Va. 273, 280, 720 S.E.2d 74 (2012) (citations omitted). Additionally, if it is reasonable for the officer to suspect that the stopped individual may be armed and presently dangerous to the officer, "a limited protective search" of the individual being detained is reasonable under the Fourth Amendment. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). The proper focus is "the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." Terry, 392 U.S. at 23, 88 S.Ct. at 1881.

As a result, " ‘reasonable suspicion’ is ‘considerably less than proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less demanding than that for probable cause.’ " Perry v. Commonwealth, 280 Va. 572, 581, 701 S.E.2d 431 (2010) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) ). We must therefore look to the totality of the circumstances of each case in determining the validity of a police officer's actions. Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463 (2003). In addition, whether the conduct of a police officer is reasonable "is judged from the perspective of a[n objectively] reasonable officer on the scene allowing for the need of split-second decisions and without regard to the officer's [subjective] intent or motivation." Thompson v. Commonwealth, 54 Va. App. 1, 7, 675 S.E.2d 832 (2009) (quoting Scott v. Commonwealth, 20 Va. App. 725, 727, 460 S.E.2d 610 (1995) ). Therefore a protective sweep may be justified where "the police officer possesses a reasonable belief based on ‘specific and articulable facts which taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and may gain immediate control of weapons." Taylor v. Commonwealth, 10 Va. App. 260, 264, 391 S.E.2d 592 (1990).

Here, McArthur was initially stopped for a defective fog light, made no furtive movements inside the vehicle, and was cooperative and polite. When Blaylock asked for consent to search the vehicle, McArthur reasonably declined on the basis that he was not the owner of the vehicle. Although the Fourth Amendment does not require McArthur to provide a reasonable basis for declining to consent to a warrantless search of his girlfriend's vehicle, McArthur provided a reasonable justification for declining to consent to the search. Furthermore, McArthur contacted his girlfriend during the traffic stop to see if she would consent to the search. In addition, upon request, McArthur immediately exited the vehicle and stood in an area behind the vehicle while Blaylock completed the warrantless search. Even though this traffic stop did occur in a "high crime area," the Virginia Supreme Court has held that a "person's Fourth Amendment rights are not lessened simply because he or she happens to live or travel in a ‘high crime’ area." McCain v. Commonwealth, 275 Va. 546, 553, 659 S.E.2d 512 (2008).

In Hill v. Commonwealth, 297 Va. 804, 815, 832 S.E.2d 33 (2019), a defendant was sitting alone in his car in a high crime, high drug area. Upon approaching the...