McCain v. Commonwealth, Record No. 0110-06-3 (Va. App. 5/8/2007)
| Decision Date | 08 May 2007 |
| Docket Number | Record No. 0110-06-3. |
| Court | Virginia Court of Appeals |
| Parties | TYRONE JUNIOR McCAIN v. COMMONWEALTH OF VIRGINIA |
Appeal from the Circuit Court of the City of Danville Joseph W. Milam, Jr., Judge.
Joseph H. M. Schenk, Jr. (Office of the Public Defender, on brief), for appellant.
Karen Misbach, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges Benton, Clements and Elder.
Tyrone Junior McCain (appellant) appeals from his bench trial convictions for possession of cocaine with intent to distribute, possession of a firearm while possessing cocaine with intent to distribute, possession of a firearm after having been convicted of a felony, and carrying a concealed weapon. McCain contends that the police seized evidence from him in violation of the Fourth Amendment and that the trial judge erred in denying his motion to suppress the evidence. For the following reasons, we affirm the convictions.
The evidence proved that, shortly before 3:00 a.m. on August 9, 2005, Officer R.V. Worsham was in a "high crime, high drug" area of Danville in which he had worked for almost five years. The area was "known for the drugs, known for shots fired, being called [in] all the time[,] . . . probably at least once a night shift." Officer Worsham saw a car, with its lights on parked in front of a particular house. As Officer Worsham watched, two people exited the car, "walked up to" the residence, and returned to their car in "under a minute." Officer Worsham was familiar with the residence, as he had been involved in a transaction a few months earlier in which an informant had made a controlled purchase of cocaine from the residence, and he described it as "a house known for selling drugs." When the car began to leave, Officer Worsham entered his vehicle, intending to follow. He noticed the plastic border around the car's rear license plate obscured the plate's expiration date and decided to stop the vehicle for that reason, but "before he could get it to stop for that, it was backing out into North Main Street," and he initiated a traffic stop for that offense. The location of the stop was "within sight distance" of the house at which he had first seen the vehicle.
Officer Worsham went to the car and asked the driver for her license. The front seat passenger identified himself to Worsham as Tyrone McCain, but Officer Worsham "already knew" the passenger was McCain. After learning from his dispatcher that the driver's license was "suspended," Officer Worsham requested assistance from another officer. Officer Worsham also asked appellant if he had a valid license "so that [appellant could . . . drive the vehicle without [it] being towed." Appellant informed the officer that he, too, had a suspended license. Officer Worsham then determined to inventory the car and have it towed, and he waited for assistance.
When Officer E.K. Thompson arrived, Officer Worsham stood with him behind the car. Worsham described to Thompson "what [he] had seen and what was going on and who was in the vehicle." Worsham told Thompson that "he observed this vehicle just leave a house that was known for selling drugs," that he was about to conduct a consent search of the vehicle, and that he wanted Thompson to "watch the passenger side while [he] got the driver out" because the passenger, appellant, seemed "nervous" and "a little edgy" during Worsham's encounter with him that night.
Officer Worsham had the driver exit the car and obtained her consent to search both her person and the car. Officer Thompson talked to appellant while Officer Worsham removed the driver from the car. After Officer Worsham "checked [the driver]," he had her walk over and stand on the sidewalk. Officer Thompson then asked appellant to exit the vehicle and put his hands on the top of the car. In Officer Worsham's "dealing with [appellant] before, he seemed nervous," and Officer Worsham "was thinking [appellant] was going to run, just the way he was acting," so he began "eas[ing] around the back of the car" to serve as Officer Thompson's "backup" "if [appellant] did run." When appellant complied with Officer Thompson's request to exit the vehicle and put his hands on the top of the car, Officer Thompson said, "You don't mind if I pat you down, you got any weapons or drugs," and appellant was "kind of . . . apprehensive about it." Officer Thompson said appellant somehow expressed his desire that "he didn't want me to do that," but Officer Thompson said he was going to pat appellant down "for [the officers'] safety."
When Officer Thompson began patting appellant's left side, appellant's hands moved off the car. Officer Thompson "grabbed [appellant] by the arm and put him back on the car." He warned appellant, "[l]ook, don't be coming off the car like that cause I take that as a sign of aggression towards me." As Officer Thompson resumed the frisk, he felt what he believed to be "something hard, solid, . . . metallic" in appellant's left pocket. He reached into the pocket, retrieved some keys, and again asked appellant if he had any weapons. Appellant responded that he had a gun. After Officer Thompson found the handgun under appellant's shirt at his waistline, the officers arrested appellant and, during a search incident to arrest, discovered cocaine on appellant's person.
At the hearing on appellant's motion to suppress, the trial judge ruled appellant was not "free to leave when he was obviously the subject of a pat down." The judge concluded "Officer Thompson had a right to pat down the defendant" based on his "[awareness] of a controlled drug purchase" at the residence appellant visited, "the time of . . . morning, the characterization of the area as a high crime area, Officer Worsham's description of [appellant] whom he apparently knew or at least . . . had prior contact with him and described [appellant] as being nervous."
On appeal of a ruling on a motion to suppress, we view the evidence in the light most favorable to the prevailing party, here the Commonwealth, granting to the evidence all reasonable inferences fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them[,] and we 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, 261 (1997) (en banc). However, we review de novo the trial court's application of defined legal standards, such as whether the police had reasonable suspicion or probable cause for a search or seizure. Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996).
Our review of the existence of probable cause or reasonable suspicion involves application of an objective rather than subjective standard. See, e.g., Whren v. United States, 517 U.S. 806, 812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996). In ordinary Fourth Amendment analysis, the fact "'that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as [all] the circumstances, viewed objectively, justify that action.'"1 Id. at 813, 116 S. Ct. at 1774 (quoting Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168 (1978)).
An officer may effect a Terry stop, i.e., a "brief, minimally intrusive investigatory detention[]," Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)), if he "observes unusual conduct which leads him reasonably to believe in light of his experience that criminal activity may be afoot" and that the person or persons he detains are involved in it, Terry, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911. An officer who develops reasonable suspicion that criminal activity is occurring may stop a person "in order to identify him, to question him briefly, or to detain him briefly, while attempting to obtain additional information" in order to confirm or dispel his suspicions. Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985).
An officer may effect a traffic stop when he has probable cause to believe a traffic or equipment violation has occurred. Dickerson v. Commonwealth, 35 Va. App. 172, 177, 543 S.E.2d 623, 626 (2001). During the course of the stop, he may take certain steps to protect himself, such as asking the driver and any passengers to exit the vehicle. Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6, 98 S. Ct. 330, 333 n.6, 54 L. Ed. 2d 331 (1977). "[P]olice officers may also detain passengers beside an automobile until the completion of a lawful traffic stop." Harris v. Commonwealth, 27 Va. App. 554, 562, 500 S.E.2d 257, 261 (1998) (citing Hatcher v. Commonwealth, 14 Va. App. 487, 491-92, 419 S.E.2d 256, 269 (1992)).
An officer may not automatically search a driver or his passengers pursuant to issuance of a traffic citation or in the course of a Terry stop, but he may frisk the driver and passengers for weapons if he develops reasonable suspicion during the traffic or Terry stop to believe the particular person frisked is armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 117-18, 119 S. Ct. 484, 488, 142 L. Ed. 2d 492 (1998); Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972); Phillips v. Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993); see Wayne R. LaFave, Search and Seizure § 9.5(a), at 246-47 (3d ed. 1996) (...
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