Patterson v. Com.

• Decision Date: 01 February 1994
• Docket Number: No. 0566-92-4,0566-92-4
• Citation: 17 Va.App. 644,440 S.E.2d 412
• Parties: Isaac Dwayne PATTERSON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 412

440 S.E.2d 412

17 Va.App. 644

Isaac Dwayne PATTERSON v. COMMONWEALTH of Virginia.

Record No. 0566-92-4.

Court of Appeals of Virginia.

Feb. 1, 1994.

[17 Va.App. 645] Jonathan Y. Short, Alexandria, for appellant.

Margaret Ann B. Walker, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: ELDER and FITZPATRICK, JJ., and DUFF, Senior Judge. ^*

FITZPATRICK, Judge.

Isaac Wayne Patterson (appellant) was convicted by a jury of possession with intent to distribute cocaine in violation of Code § 18.2-248. He contends that the trial court erred in: (1) denying his motion to suppress the drugs seized from him as the product of an illegal detention; and (2) allowing evidence of appellant's prior drug convictions to trigger the enhanced penalty provision of Code § 18.2-248 without prior notice. Finding no error, we affirm the conviction.

BACKGROUND

On June 26, 1991, at approximately 1:00 a.m., Prince William County police officers executed a search warrant for drugs at 1440 Gemstone Drive, apartment 304, in Prince William County. During the search of this third floor apartment, Officer Kevin Brown (Brown) was stationed outside the entrance to secure the premises. After the police forcibly entered the apartment and while the search was in progress, Brown observed appellant and his brother, David Patterson, climbing the stairs from the second floor landing of the building. Brown advised them that they were "entering a secured area, and that they were to leave the immediate area." Appellant and his brother did not comply with Brown's command to leave and, instead, began to question the officer about what he was doing there and what was happening inside the apartment. Brown considered their refusal to leave and continued questions "suspicious," and he "advised them to remain where they were."

Before Brown could reach the two men, Officer James Virgil (Virgil), who came out of the apartment to assist Brown with the two suspects, recognized appellant whom he had previously arrested on a drug charge. Virgil ordered the two men to put their hands on the wall and asked them whether "they ha[d] any weapons or anything on them that was illegal." Appellant again questioned what was happening in the apartment. Virgil then asked appellant, "do you mind if I pat you down?" Appellant agreed and Virgil asked, "do you mind if I search you down for weapons or drugs?" Appellant replied, "no, go ahead."

Virgil's search of appellant revealed a rock of crack cocaine stuffed in his front pants pocket. Appellant was placed under arrest for being in possession of suspected crack cocaine. After appellant was arrested and informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), appellant told the officers that he had intended to trade the cocaine for a television set. At trial, Virgil testified that during a post-arrest interview appellant explained his intentions with regard to his possession of the cocaine, as follows:

He went into detail that he--We had stopped him on his way, he was going to bring that piece of crack cocaine down to meet a guy in the parking lot by the name of Steve and exchange this piece of crack for a T.V.

INITIAL DETENTION--TERRY STOP

On appeal, the burden is on appellant to show that the trial court's denial of a suppression motion, when the evidence is viewed in the light most favorable to the Commonwealth, constitutes reversible error. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980); see also Baldwin v. Commonwealth, 243 Va. 191, 193, 413 S.E.2d 645, 646 (1992). Appellant argues that the crack cocaine seized from his pocket should have been suppressed because Brown lacked any reasonable or articulable suspicion for the original detention, asserting that his conduct of approaching the officer and asking questions was innocuous. We disagree. Appellant's refusal to leave an area secured by police officers executing a search warrant for drugs gave Brown the reasonable suspicion necessary to investigate further why appellant failed to follow his instructions. ¹

In reviewing the propriety of an investigative stop the court must "review the whole picture." Castaneda v. Commonwealth, 7 Va.App. 574, 581, 376 S.E.2d 82, 85 (1989) (en banc ). A trained police officer may be able to "perceive and articulate meaning to given conduct which would be wholly innocent to the untrained observer." Iglesias v. Commonwealth, 7 Va.App. 93, 101, 372 S.E.2d 170, 174 (1988) (citation omitted). Appellant's refusal to leave the area after being told to do so, and his subsequent questions created a high degree of risk to the officers conducting the search. "[T]he execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence.... The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Michigan v. Summers, 452 U.S. 692, 702-03, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340 (1981); see also Allen v. Commonwealth, 3 Va.App. 657, 662, 353 S.E.2d 162, 165 (1987). We find that appellant's behavior provided Brown with reasonable suspicion that criminal activity may have been afoot, warranting further investigation.

CONSENSUAL SEARCH

Appellant also argues that even if his initial detention was justified, the Commonwealth failed to prove that his consent to search was voluntary. "All searches without a valid warrant are unreasonable unless shown to be within one of the well-delineated exceptions to the rule that a search must rest upon a valid warrant. One such exception is consent and the fact of custody alone is not enough in itself to demonstrate a coerced consent to search." Iglesias, 7 Va.App. at 107, 372 S.E.2d at 178 (citations omitted).

"It is well settled that the burden is on the Commonwealth to establish an exception to the warrant requirement." Walls v. Commonwealth, 2 Va.App. 639, 645, 347 S.E.2d 175, 178 (1986); see also United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951); Verez v. Commonwealth, 230 Va. 405, 410-11, 337 S.E.2d 749, 752-53 (1985), cert. denied, 479 U.S. 813, 107 S.Ct. 63, 93 L.Ed.2d 21 (1986). "In order to justify a warrantless search on the basis of consent, the Commonwealth must demonstrate from the totality of the circumstances that the consent was voluntary." Elliotte v. Commonwealth, 7 Va.App. 234, 238, 372 S.E.2d 416, 418 (1988).

The trial court, in denying appellant's motion to suppress held as follows:

[I]n reference to the consent search the court will make a finding of fact, and that is that there is absolutely no evidence before this court other than the evidence that there was a consent at that particular time.

* * * * * *

So, when the court takes the totality of all of the evidence, that is, that you knew the officer that was involved, you've been through the procedure before, you were given the opportunity to leave and chose not to, the evidence clearly shows that at the time there was a consent to the pat down and then searched for the drugs and/or weapons.

Appellant argues that because the trial judge did not specifically state that he found that the consent to search was voluntarily given to the police, the opposite must be true and the case reversed. We disagree. The entire motion to suppress focused on the voluntary nature of the consent and whether appellant was coerced into giving his consent. On appeal, we consider the entire record in determining whether the trial court properly denied appellant's motion to suppress. DePriest v. Commonwealth, 4 Va.App. 577, 583, 359 S.E.2d 540, 543 (1987), cert. denied, 488 U.S. 985, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988).

We agree with the Commonwealth that nothing in the record suggests that appellant was threatened or intimidated by the police. The evidence proves that when Virgil asked if he could search appellant "for weapons or drugs," appellant simply...