McCain v. Com.

• Decision Date: 20 April 2001
• Docket Number: Record No. 001989.
• Citation: 545 S.E.2d 541,261 Va. 483
• Court: Virginia Supreme Court
• Parties: Elbert Lamont McCAIN v. COMMONWEALTH of Virginia.

545 S.E.2d 541

261 Va. 483

Elbert Lamont McCAIN v. COMMONWEALTH of Virginia.

Record No. 001989.

Supreme Court of Virginia.

April 20, 2001.

S. Jane Chittom (Public Defender Commission, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: CARRICO, C.J., LACY, HASSELL, KEENAN, KOONTZ, and LEMONS, JJ., and WHITING, Senior Justice.

KEENAN, Justice.

In this appeal, we consider 1) whether a police officer's search of a defendant and his automobile violated the defendant's Fourth Amendment rights; and 2) whether the evidence is sufficient to support the defendant's convictions.

Elbert Lamont McCain was indicted for possession of cocaine with the intent to distribute, in violation of Code § 18.2-248, and for possession of a firearm while possessing cocaine with the intent to distribute, in violation of Code § 18.2-308.4(B). McCain was convicted of both offenses in a bench trial in the Circuit Court of the City of Danville and was sentenced to seven years' imprisonment and a fine of $700 on the cocaine conviction, and to three years' imprisonment on the firearm conviction. The court suspended a portion of these sentences on certain terms and conditions. McCain appealed from his convictions to the Court of Appeals, which affirmed the trial court's judgment in an unpublished opinion. McCain v. Commonwealth, Record No. 2368-99-3, 2000 WL 979941 (July 18, 2000). We awarded McCain this appeal.

We will state the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court. Tarpley v. Commonwealth, 261 Va. 251, 253, 542 S.E.2d 761, 762 (2001); Dobson v. Commonwealth, 260 Va. 71, 73, 531 S.E.2d 569, 570 (2000); Commonwealth v. Taylor, 256 Va. 514, 516, 506 S.E.2d 312, 313 (1998). At about 2:00 a.m. on March 16, 1999, Richard B. Thomas, a police officer for the City of Danville, was patrolling an area around Grove and Gay Streets after the police had received several reports of drug activity in the area. In front of an apartment building on Grove Street, Thomas saw McCain sitting in the driver's seat of a parked car, and another man was seated next to him. After observing the parked car, Thomas drove around the block and requested assistance from a police "dispatcher."

Thomas returned to Grove Street and stopped his vehicle behind the parked car. He observed a woman whom he had not previously seen leaning into the car. Thomas testified that he illuminated the parked car with his automobile headlights and with a spotlight.

As Thomas stepped from his vehicle and approached the parked car, the woman began to walk away. When Thomas asked what she was doing, she replied that she was "talking with her brother" and continued walking away from the car. Thomas testified that he returned to the parked car and shined his flashlight into the back seat "to make sure that there [was] nothing that [was] going to surprise me." When Thomas asked McCain "what was going on," McCain responded that he had come to see his brother who lived in the nearby apartment building.

Thomas asked McCain and his passenger, Samuel Glass, for identification. McCain gave Thomas a valid driver's license, and Glass provided Thomas his name, social security number, and address. Thomas testified that he "ran both of their social security numbers, and checked [for outstanding] warrants." There were no warrants outstanding for either man.

Thomas returned McCain's driver's license to him and asked if there were any weapons or contraband in the vehicle. McCain replied that there were not and, when Thomas asked for permission to search the car, McCain consented. Both men complied with Thomas's request that they step out of the car.

Thomas approached McCain and informed him that for safety reasons, he needed to "pat [him] down" to determine if he had a weapon. Thomas testified that McCain became somewhat irate and asked Thomas why a search of his person was necessary. Thomas again told McCain that the pat-down search was for Thomas's safety.

In response, McCain began to turn away from Thomas, stating loudly that he did not want Thomas to touch him. When McCain walked away from Thomas onto the sidewalk, Thomas conducted a pat-down search of Glass, which revealed nothing unusual. After another police officer arrived on the scene, Thomas again focused his attention on McCain.

By that time, McCain had walked about 35 feet to the front door of the apartment building and banged loudly on the door. When no one answered the door, he walked to an area to the right of the door behind a set of steps that led to the second floor of the building. Through decorative openings in a concrete wall that separated him from McCain, Thomas saw the shadow of an arm "reach out," and he heard the sound of a metal object making contact with another metal object. McCain then returned from behind the steps and walked back toward the front door.

Thomas and the other police officer approached McCain, and Thomas again explained that he intended to conduct a patdown search of McCain for the officers' safety. McCain acquiesced to the pat-down search, and Thomas did not find any weapons on McCain's person.

Thomas retraced McCain's steps to the area behind the stairs and saw a metal grocery cart that contained a handgun. Thomas walked back toward McCain, showed him the handgun, and asked, "What [is] this?" McCain reacted by running away.

Thomas chased McCain, calling out that he was under arrest for carrying a concealed weapon. Thomas caught McCain and, after a brief struggle, succeeded in placing handcuffs on him. As other police officers who had arrived on the scene assisted Thomas in lifting McCain from the ground, Thomas found a digital scale immediately beneath McCain's person.

Thomas searched McCain and found a small bag containing a white "rock substance," later determined to be cocaine, in McCain's right front pocket. Another officer found a change purse and $937 in cash in one of McCain's pockets. Thomas opened the change purse and found a small plastic bag containing a white, powdery material that also was determined to be cocaine.

Thomas conducted an inventory search of McCain's car and found a pager, a cellular telephone, and a plastic bag containing two, large "off-white" substances in rock form that were individually wrapped. These "offwhite" substances later were determined to be cocaine and had a combined weight of about 55 grams.

McCain testified in his own defense and stated that Thomas approached his vehicle and asked, "Can I see your license and registration?" McCain testified that after he produced his driver's license and Glass gave Thomas "his name and stuff," Thomas directed them to get out of the car. McCain stated that he never consented to a pat-down search, and that while Thomas did not specifically ask to search his car, McCain did tell Thomas to "look all you want" with his flashlight. Finally, McCain testified that he did not know how the gun "got in [the grocery] cart."

Before trial, McCain filed a motion to suppress the evidence seized by the police alleging, among other things, that McCain did not consent to a search of his person and that the officers lacked probable cause to conduct any searches. At trial, the court denied the motion and, at the conclusion of all the evidence, found McCain guilty of the crimes charged.

The Court of Appeals held that the trial court did not err in denying McCain's motion to suppress the evidence. Relying on its decision in Brown v. Commonwealth, 17 Va. App. 694, 440 S.E.2d 619 (1994), the Court ruled that Thomas had effected a seizure of McCain by "demanding"¹ McCain's driver's license and conducting a check for outstanding warrants. The Court concluded that the seizure was lawful based on its finding that Thomas's action "was supported by reasonable suspicion."

The Court held that McCain's flight after Thomas showed him the handgun retrieved from the grocery cart, when viewed together with all the circumstances of the case, created probable cause to arrest McCain for possession of a concealed weapon. From this evidence of probable cause, the Court concluded that the police officers lawfully searched McCain incident to his arrest on the weapon charge, and that the search of his car was lawful based on the evidence that McCain consented to the search. The Court also held that the evidence was sufficient to support McCain's convictions.

On appeal to this Court, McCain first argues that the police searches of his person and his car violated his Fourth Amendment rights. Relying on the Court of Appeals' decision in Brown, McCain argues that he was "seized" at the time Thomas asked for his identification, and that this seizure was unlawful because Thomas did not have grounds to support a reasonable suspicion of criminal activity when he approached the parked car. McCain contends that all evidence obtained after this seizure, including the handgun, was a fruit of the unlawful seizure and should have been suppressed.

McCain also asserts that Thomas did not have probable cause to arrest him on the firearm charge and to search him because the evidence that Thomas observed the shadow of an arm and heard the sound of one metal object hitting against another metal object did not constitute evidence of criminal activity. McCain further contends that his flight from the scene was merely evidence of his response to Thomas's "hostility." We disagree with McCain's arguments.

An assertion that a person was "seized," within the meaning of the Fourth Amendment, presents a mixed question of law and fact that is reviewed de novo on appeal. Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000); Weathers v. Commonwealth, 32 Va.App. 652, 658, 529 S.E.2d 847, 850 (2000); see Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)

. Likewise, an assertion that the...