Muhammad v. Commonwealth Of Va.

• Decision Date: 21 December 2010
• Docket Number: Record No. 1897-09-1
• Court: Virginia Court of Appeals
• Parties: SHADEEDE ALI MUHAMMAD v. COMMONWEALTH OF VIRGINIA

SHADEEDE ALI MUHAMMAD

v.COMMONWEALTH OF VIRGINIA

Record No. 1897-09-1

COURT OF APPEALS OF VIRGINIA

DECEMBER 21, 2010

Present: Judges Elder, Beales and Petty Argued at Chesapeake, Virginia

MEMORANDUM OPINION^* BY JUDGE LARRY G. ELDER

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON

Walter J. Ford, Judge¹

Charles E. Haden for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Shadeede Ali Muhammad (appellant) was convicted by a jury of possession of cocaine in violation of Code § 18.2-250. On appeal, he argues the evidence should have been suppressed because the police did not have probable cause to believe he constructively possessed the cocaine particles found in the driver's seat of the vehicle in which appellant occupied. Because the small amount of cocaine could not be readily attributable to appellant, the police lacked probable cause to suspect appellant was in possession of illegal contraband. Accordingly, we hold the incriminating evidence was seized in violation of appellant's Fourth Amendment rights, reverse the trial court's ruling, and remand to the trial court for further proceedings consistent with this opinion.

I.

Appellant argues the search of his pants pocket violated his rights under the Fourth Amendment. "What the Fourth Amendment prohibits 'is not all searches and seizures, but unreasonable searches and seizures.'" Buhrman v. Commonwealth, 275 Va. 501, 505, 659 S.E.2d 325, 327 (2008) (quoting Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889, 899 (1968)) (emphasis in original). Whether the Fourth Amendment has been violated is a question to be determined from all the circumstances and is viewed under an objective standard. See Samson v. California, 547 U.S. 843, 848, 126 S. Ct. 2193, 2197, 165 L. Ed. 2d 250, 256 (2006); Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906.

A defendant's claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo on appeal. See McCain v. Commonwealth, 275 Va. 546, 551, 659 S.E.2d 512, 515 (2008); Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). We give deference to the factual findings of the trial court, but we independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment. Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000). "The defendant has the burden to show that, considering the evidence in the light most favorable to the Commonwealth, the trial court's denial of his suppression motion was reversible error." McCain, 275 Va. at 552, 659 S.E.2d at 512.

Here, during the course of a lawful vehicular stop, Lee complied with the request of Officers David Elliott and Jacob Marmet to exit the vehicle and inspect a defective license tag light. As Lee leaned over to look at the license plate, a glass pipe that appeared to be a crack cocaine smoking device fell from his pocket. Lee attempted to step on the ingestion device and kick it away. After a brief struggle, Elliott handcuffed Lee and handed him off to a backup unit that had arrived. Appellant remained inside the vehicle during this struggle.

After Lee was secured, Elliott returned to the vehicle where appellant was sitting in the front passenger seat. The officers observed a white powdery substance on the driver's seat, and a field test confirmed that the substance was cocaine. Elliott believed appellant was also in possession of the illegal narcotics and asked appellant to exit the vehicle. Marmet conducted a search of appellant's person. As a result of that search, the officers discovered six bags of cocaine in appellant's pants pocket and $1,000 cash on his person. Elliott arrested appellant.

At the first suppression hearing, appellant argued that the officers lacked probable cause to believe appellant had drugs in his possession because the incriminating evidence implicated only Lee. The trial court disagreed, finding that "the officers had [a] reasonable basis to suspect [appellant of] criminal activity."² On appeal, appellant contends the officers did not have a legitimate basis to search his person because the incriminating evidence implicated Lee and not appellant. Appellant argues no evidence, aside from his mere proximity to the cocaine particles, supported the inference that he constructively possessed the contraband.³ In opposition, the Commonwealth contends the officers had probable cause to believe appellant had in his possession the cocaine residue on the driver's seat because the contraband was located in plain view and within appellant's immediate control.

When an officer has probable cause to believe the accused has committed a crime, the officer has the authority both to arrest the individual and search him incident to that arrest. See United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 471, 38 L. Ed. 2d 427, 434 (1973) ("It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment'"); Copeland v. Commonwealth, 42 Va. App. 424, 433, 592 S.E.2d 391, 395 (2004). "Probable cause relies on a 'flexible common-sense standard'" and "does not 'demand any showing that such a belief be correct or more likely true than false.'" Slayton v. Commonwealth, 41 Va. App. 101, 106, 582 S.E.2d 448, 450 (2003) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502, 514 (1983)). There need be only "a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 245 n.13, 103 S. Ct. 2317, 2335 n.13, 76 L. Ed. 2d 527, 552 n.13 (1983); see Adams v. Williams, 407 U.S. 143, 149, 92 S. Ct. 1921, 1924, 32 L. Ed. 2d 612, 618 (1972) ("Probable cause does not require the same type of evidence of each element of the offense as would be needed to support a conviction.").

The issue we must decide is whether appellant's proximity to the cocaine particles supplied the requisite level of probable cause to believe appellant constructively possessed the contraband and therefore justified the search incident to arrest. '"[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.'" Maryland v. Pringle, 540 U.S. 366, 372-73, 124 S. Ct. 795, 801, 157 L. Ed. 2d 769, 776 (2003) (quoting Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342, 62 L. Ed. 2d 238, 245 (1979)); cfEl-Amin v. Commonwealth, 269 Va. 15, 21, 607 S.E.2d 115, 118 (2005) (declining to adopt a per se rule that "approve[d] the search of the companion of a person validly detained based solely on the status of companion"). However, "evidence showing a common enterprise can provide the necessary link between criminal activity and an individual so as to establish probable cause sufficiently particularized to that individual." Whitehead v. Commonwealth, 278 Va. 300, 313, 683 S.E.2d 299, 305 (2009). "[A] car passenger... will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing." Wyoming v. Houghton, 526 U.S. 295, 304-05, 119 S. Ct. 1297, 1303, 143 L. Ed. 2d 408, 418 (1999). We hold no such link exists in this case connecting appellant to Lee's criminal activity.

In Pringle, the United States Supreme Court held "that the officer had probable cause to believe that [the defendant] had committed the crime of possession of a controlled substance[,]" because "it was reasonable for the officer to infer a common enterprise among the three [occupants of the vehicle]." 540 U.S. at 373-74, 124 S. Ct. at 801-02, 157 L. Ed. 2d at 777. In that case, the police officer stopped a vehicle for speeding. The officer noticed a large amount of rolled up cash in the glove compartment, and a consensual search of the vehicle revealed five plastic baggies containing cocaine. None of the three occupants—including the defendant— offered information regarding the ownership of the drugs or money. Id. at 368-69, 124 S. Ct. at 798, 157 L. Ed. 2d at 774. The Court held that the "relatively small automobile" combined with the "quantity of drugs and cash... indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him." Id., at 373, 124 S. Ct. at 801, 157 L. Ed. 2d at 776-77.

The circumstances in this case do not justify the recovery of the bags of cocaine based on a search incident to a lawful arrest because the Commonwealth presented no evidence that appellant and Lee were engaged in a common criminal enterprise. Unlike the five bags ofcocaine in Pringle, the amount of cocaine within appellant's reach was miniscule. Indeed, Elliott testified he had difficulty obtaining a sufficient amount of the substance to conduct a field test, leading to the logical inference that some individual possessed the drugs solely for ingestion and not distribution. Moreover, the drugs were readily attributable to Lee, whom the officers knew had in his possession an ingestion device for smoking crack cocaine. Conversely, the officers had no information leading them to believe appellant had such device in his possession. Finally, appellant did not aid or countenance Lee's attempt to conceal his criminal activities. We cannot say from this evidence that appellant joined in Lee's nefarious venture to possess drugs.⁴ Cf. Thompson v. Commonwealth, 54 Va. App. 1, 9, 675 S.E.2d 832, 836 (2009) ("When there are no other relevant facts to suggest a person is involved in the distribution of drugs, such as a hand-to-hand transaction, contact with others, or maintenance of a 'stash, ' we are compelled to conclude that the record does not support a reasonable basis for a...