Minter v. Commonwealth
| Decision Date | 02 December 2014 |
| Docket Number | Record No. 1739-13-1 |
| Court | Virginia Court of Appeals |
| Parties | TREMONE MINTER v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Chief Judge Felton, Judges McCullough and Decker
Argued by teleconference
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Chad G. Dorsk (Dorsk Law Office, PLC, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Tremone Minter was convicted on a conditional plea of guilty of possession of a firearm by a felon in violation of Code § 18.2-308.2. The appellant contends that the trial court erred in denying his motion to suppress evidence because law enforcement had no legal basis to conduct a pat down of his person. We hold that the seizure and subsequent pat down violated the appellant's rights under the Fourth Amendment to the United States Constitution and reverse the conviction.
"When reviewing a denial of a motion to suppress evidence, an appellate court considers the evidence in the light most favorable to the Commonwealth and will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence."Branham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 (2012). So viewed, the evidence established the following.
On October 30, 2012, Officer R. Dyer and Detective K. Adams of the Portsmouth Police Department were on routine patrol in the Port Norfolk area. They were traveling in a dark blue Chevy Tahoe unmarked police vehicle with tinted windows. At approximately 5:45 p.m., Officer Dyer saw the appellant walking in a public parking lot. It was not dark out, but rather "in between day and night." The parking lot was used by tenants of a nearby three-story apartment building.
Detective Adams was driving the vehicle. The officers were travelling at a rate of speed of "probably less than ten miles an hour," and were "just kind of trolling through the streets." Officer Dyer did not see anyone in the area selling drugs. As the police vehicle approached the entrance to the parking lot, the appellant started to walk faster and repeatedly looked over his shoulder at the slow moving unmarked Tahoe. The appellant appeared to "be very interested in [the unmarked police] vehicle." He "[sped] up his gait when [the Tahoe] pulled in, almost as if he was going to flee." The appellant was so focused on watching the vehicle that he walked through a section of water and mud in a construction zone in the parking lot.
The officers pulled into the parking lot without activating the vehicle's emergency lights. Officer Dyer, who was dressed in plain clothes, got out of the Tahoe, "pulled [his] badge around [his] neck," and identified himself as a police officer. Dyer asked the appellant, "Hey, man, can I talk to you." The appellant stopped walking in the direction he was travelling, turned around, and approached the officer. Officer Dyer asked the appellant his name, and the appellant provided his correct name. Dyer then asked what the appellant was doing and where he was going. The appellant responded that he was going to his house to get his children. According to the officer, the appellant seemed very concerned about getting home to his children. The officerdescribed the appellant as being "extremely nervous," "visibly shaking," and "kind of stumbling and stammering over his words" during their conversation. Dyer explained that the appellant did not answer the questions; he "just reverted to [talking about] his kids."
The appellant was wearing a "large, fluffy, puffy jacket," which was not "out of the ordinary" to Officer Dyer since it was the end of October. However, this large jacket concealed what was underneath it. Dyer did not notice any bulges in the appellant's clothing, nor did the clothing seem "unusual."
Detective Adams parked the vehicle and walked over to Officer Dyer and the appellant shortly after Dyer made contact with the appellant. Adams also was in plain clothes and had his badge displayed around his neck. Neither Officer Dyer nor Detective Adams ever drew his weapon during their interaction.
Dyer was conversing with the appellant while Adams was "looking around, just making sure nobody would run up on [them]." Detective Adams was not interacting with the appellant and did not remember the conversation that occurred between the appellant and Officer Dyer. In response to a question of whether the encounter made him nervous, the detective testified that his
While speaking with Officer Dyer, the appellant reached into his pocket twice. Dyer "told [the appellant] on both occasions to not reach into his pockets." After the second time the appellant put his hands into his pockets, the officer told him that he was making the officer nervous by doing so. Dyer then told the appellant that he was going to pat him down to make sure he did not have any weapons. Officer Dyer testified that he decided to conduct a pat down for weapons due to the appellant's nervousness and his large, puffy jacket. Dyer feared that the appellant had some type of weapon.
Officer Dyer placed the appellant's interlaced hands on the back of his head. Prior to actually initiating the pat down, Dyer asked the appellant if he had any weapons, and the appellant said that he did. When Dyer conducted the pat down, he found a Bersa .380 caliber pistol in a holster on the right side of the appellant's waistband. The weapon had been concealed from the officer's view during the encounter.
Prior to trial, the appellant filed a motion to suppress the weapon as evidence. The trial court denied the motion, and the appellant entered a conditional guilty plea pursuant to Code § 19.2-254, preserving his right to appeal the alleged violation of his Fourth Amendment rights. He was sentenced to five years in prison.
The appellant contends he was unlawfully seized because law enforcement officers had no reasonable articulable suspicion that he was engaged in criminal activity and there was no evidence to suggest that he was armed and dangerous.
"In reviewing a trial court's denial of a motion to suppress, 'the burden is upon [the defendant] to show that the ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.'" McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). "'Ultimate questions of reasonable suspicion and probable cause to make a warrantless search' involve questions of both law and fact and are reviewed de novo on appeal." Id. at 197-98, 487 S.E.2d at 261 (quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)). Likewise, "whether a defendant is seized in violation of the Fourth Amendment is a question that is reviewed de novo on appeal." Davis v. Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378 (2002). However, this Court is "bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them andwe give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee, 25 Va. App. at 198, 487 S.E.2d at 261.
The appellant contends he was seized by Officer Dyer and Detective Adams when they approached him in the parking lot and started asking him questions. The Commonwealth argues that the encounter was initially consensual.1
Rule 5A:18 provides that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with the reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." Therefore, we "will not consider an argument on appeal [that] was not presented to the trial court." Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). "Rule 5A:18 applies to bar even constitutional claims." Id. Further, Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc) (citations omitted), aff'd by unpub'd order, No. 040019 (Va. Oct. 15, 2004).
The appellant did not argue in his motion to suppress the evidence that the initial encounter was a seizure. Instead, he contended that he was cooperating with police during a consensual encounter, and without evidence of criminal activity or his being armed and dangerous, this encounter did not provide justification for a pat down. Likewise, at the suppression hearing, the appellant argued that once Officer Dyer conducted the pat down, "[a]t this point the encounter is no longer consensual." Consequently, since the appellant did notchallenge in the trial court the consensual nature of the initial encounter, we will not consider this argument on appeal.2
The appellant also contends that, even if the initial encounter was consensual, he was unlawfully seized once Officer Dyer interlaced his hands and placed them behind his head, in preparation for a pat down for weapons. He argues that these actions were not based on a reasonable articulable suspicion that he was engaged in criminal activity and armed and dangerous. Thus, the appellant suggests, the trial court erred in refusing to suppress the firearm.
The Commonwealth argues that Officer Dyer had reasonable suspicion to justify a seizure and protective pat down for weapons. According to the Commonwealth, by the time that Officer Dyer placed the appellant's hands behind his head, the officer had a reasonable articulable suspicion that the...
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