Perry v. Com.

Decision Date04 November 2010
Docket NumberRecord No. 092418.
Citation280 Va. 572,701 S.E.2d 431
PartiesJames PERRY v. COMMONWEALTH of Virginia.
CourtVirginia Supreme Court
701 S.E.2d 431
280 Va. 572


James PERRY
v.
COMMONWEALTH of Virginia.


Record No. 092418.

Supreme Court of Virginia.

Nov. 4, 2010.

701 S.E.2d 433

Sarah M. Bieker, Assistant Public Defender, for appellant.

John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and CARRICO, S.J.

Opinion by Justice DONALD W. LEMONS.

280 Va. 574

In this appeal, we consider whether the Court of Appeals erred when it affirmed the trial court's denial of James Edward Perry's ("Perry") motion to suppress and his conviction for possession of phencyclidine ("PCP").

I. Facts and Proceedings Below

At approximately 2:00 a.m. on the morning of October 15, 2006, Trooper Clinton A. Weidhaas ("Trooper Weidhaas") was traveling on Interstate 66 in Arlington County when he noticed a vehicle with its emergency flashers activated parked on a "pretty well lit" area of the right shoulder. With the intention of assisting the occupants,

280 Va. 575
Trooper Weidhaas pulled off the interstate with his emergency equipment activated, and he exited and approached the vehicle.

Upon reaching the vehicle, Trooper Weidhaas observed that all four windows and the sunroof were open, and he "detected a strong odor of marijuana coming from that vehicle." The vehicle had three occupants: Valdemere Perry ("Valdemere") was the driver of the vehicle, Maurice Sprurgeon ("Sprurgeon") was the front-seat passenger, and Perry was in the back seat.

Upon checking Valdemere's driving record, Trooper Weidhaas discovered that Valdemere's license was suspended. Trooper Weidhaas called for a back-up unit; this second trooper watched Valdemere from behind the vehicle. Sometime thereafter, Trooper Weidhaas approached Sprurgeon, whose demeanor Trooper Weidhaas described as "visibly impaired." "He wasn't very responsive" to questions, he was "somewhat slow [and] slow to react," "unsteady, [and he] had a hard time keeping his balance." Trooper Weidhaas initially suspected that Sprurgeon was "under the influence of something, either marijuana or something stronger, [such as] PCP, because he was definitely not coherent."

Trooper Weidhaas asked Sprurgeon to exit the vehicle. As he did, Trooper Weidhaas saw "a small vial with an orange-reddish cap come out of [Sprurgeon's] right hand in a throwing motion, onto the ground." Upon hitting the ground the cap came off, and Trooper Weidhaas observed "a dark plant-like material" that appeared as if it "had been soaked in something." Trooper Weidhaas expressed his concern that there were only two troopers present at the scene, while "[t]here [were] three of them." He expressed particular concern that "[t]hey could overpower the officer and all the weapons that we have to defend ourselves may not work on some [people under the influence] of these certain types of drugs [such] as PCP." He further indicated a concern that these suspects, if under the influence of such substances, would "have no pain whatsoever" and "can go from being at a low to a high, high strung, in a matter of minutes." While unable to recall the exact time of arrival, Trooper Weidhaas testified that a third trooper arrived sometime during or after his interaction with Sprurgeon.

Trooper Weidhaas placed Sprurgeon under arrest "for possession of a controlled substance." When asked whether he had "smoked anything tonight," Sprurgeon admitted that he had "smoked some

280 Va. 576
PCP earlier." A field test of the substance in the vial recovered from Sprurgeon returned positive results for both PCP and marijuana.

Finally, Trooper Weidhaas approached Perry, whose demeanor he described as "exactly like Sprurgeon's." Perry was "[s]low to respond," "[n]ot very coherent," and "[u]nsteady when I got him out of the car." Once Perry was out of the vehicle, Trooper Weidhaas "got him up to the front of the car and did a patdown for weapons." When performing a pat-down on suspects, Trooper Weidhaas stated that he "squeeze[s] their pockets as well."

In Perry's front pocket, Trooper Weidhaas detected "a bundle," which he described as a

701 S.E.2d 434
"bulge" that had the "same size, same round feeling, [and] same length as the vial that was previously thrown on the ground [by Sprurgeon]." On cross examination, Trooper Weidhaas testified that he detected the bulge in Perry's pocket "between [his] thumb and ... index finger," and he felt it "[s]omewhere between two and three" times.

Trooper Weidhaas then asked Perry, "[w]ould you mind showing what's in your pockets," and Perry "took his right hand, reached down in his pocket" and produced "the same type [of] vial." When asked about the vial's contents, Perry responded that it contained marijuana. Perry also admitted to smoking PCP earlier that night. Trooper Weidhaas then placed Perry under arrest.

Prior to his trial for possession of PCP in violation of Code § 18.2-250, Perry filed a motion to suppress. Perry claimed his rights under the United States and Virginia Constitutions were violated because (i) "[t]here existed no reasonable articulable suspicion or otherwise lawful cause to frisk," and (ii) "[t]here existed no probable cause or otherwise lawful cause justifying the search and seizure of the property." Perry argued that as a result, "[a]ll evidence obtained by law enforcement subsequent to, or as a result of, such improper action [were] inadmissible 'fruit of the poisonous tree' and must be suppressed."

In support of his motion to suppress, Perry argued that Trooper Weidhaas "did not have a reasonable basis to believe that [Perry] was armed and dangerous. And therefore, the Terry frisk of James Perry was unlawful." Perry also argued that, assuming the pat-down search was lawful, "Trooper Weidhaas exceeded ... the permissible scope" of the pat-down by manipulating the contents of Perry's pocket with his thumb and fingers.

280 Va. 577

The Commonwealth responded that "suspicion of narcotics possession gives rise ... to an inference of dangerousness, ... which makes a Terry search under those circumstances appropriate." The Commonwealth then argued that Trooper Weidhaas "had probable cause to believe that the items that he felt and that he brushed up against did contain contraband." As a result, the Commonwealth argued that Trooper Weidhaas "had probable cause to go into [Perry's] pocket."

The trial court observed that this was "a very close case," but denied Perry's motion to suppress. At his trial, a jury found Perry guilty of possession of PCP and fixed his penalty at $2,500.

The Court of Appeals affirmed Perry's conviction. Perry v. Commonwealth, 55 Va.App. 122, 133, 684 S.E.2d, 227, 232 (2009). Applying the right result for the wrong reason doctrine, the Court of Appeals "assume[d] without deciding that the trial court erred when it found [that] Trooper Weidhaas had reasonable articulable suspicion to believe [Perry] was armed and dangerous." Id. Instead, the Court of Appeals held that Trooper Weidhaas "certainly had probable cause to believe that [Perry] possessed illegal drugs-either by having joint or constructive possession of the drugs originally in Sprurgeon's hand or by having actual possession of other drugs that the officer had not yet seen." Id. at 132, 684 S.E.2d at 231. Despite the acknowledgment of the Commonwealth that it never argued to the trial court that Trooper...

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