Perry v. Com.

Decision Date03 November 2009
Docket NumberRecord No. 0945-08-4.
Citation55 Va. App. 122,684 S.E.2d 227
PartiesJames Edward PERRY v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

Charles Burnham, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

John W. Blanton, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.


BEALES, Judge.

A jury convicted James Edward Perry (appellant) of possession of phencyclidine (PCP) pursuant to Code § 18.2-250 and fined him $2,500. On appeal, appellant argues that the trial court erred when it denied his motion to suppress the drugs found by the police during a search of his person. Specifically, appellant contends that the trooper who searched him did not have a reasonable suspicion that he was armed and dangerous, and, therefore, the trooper's actions violated the Fourth Amendment principles as established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Alternatively, he also contends that, even if the pat-down search for weapons was valid, the trooper exceeded the scope of such a search as established in Terry. Finally, appellant contends that his eventual consent to the removal of a vial from his pocket did not cure the trooper's violations of the principles in Terry, and, therefore, the vial was still not admissible into evidence. We find that the trial court did not err in denying appellant's motion to suppress, and, therefore, we affirm his conviction.


At 2:00 a.m. on October 15, 2006, Trooper Weidhaas was traveling down Interstate 66 in Arlington County. As he drove along, the trooper spotted a silver car parked on the right shoulder of the interstate, in a well-lit area. Trooper Weidhaas pulled over, parked behind the silver car, and got out of his patrol vehicle.

As Trooper Weidhaas walked toward the car, he noticed that the windows and the sunroof of the silver car were open. Before he reached the car, the trooper "detected a strong odor of marijuana coming from" the car. Based on this smell of drugs, the officer stated that he became concerned that the passengers might have guns.

Three men were in the silver car—appellant sat in the back seat, Maurice Sprurgeon (Sprurgeon) sat in the front passenger seat, and Valdemere Perry (Valdemere) sat in the driver's seat. Trooper Weidhaas approached Valdemere first and asked for his information. Upon checking his driving record, the trooper discovered that Valdemere's license was suspended. The trooper then began checking to see if any of the passengers could legally drive the car. Around this time, at least one other trooper arrived at the scene and took control of Valdemere.

Trooper Weidhaas then turned his attention to Sprurgeon. Sprurgeon was not "very coherent" and "looked visibly impaired." His reactions were slow and unsteady, and he was non-responsive. Trooper Weidhaas thought Sprurgeon might be under the influence of marijuana or PCP. Based on his training and experience, the trooper believed that persons under the influence of PCP were inclined to suddenly attack and to ignore pain, such that they will ignore any officer's attempts to restrain them. If Sprurgeon was under the influence of PCP, then the trooper was concerned that he presented a significant danger to the officers.

Trooper Weidhaas asked Sprurgeon to step out of the car, and, as he did so, Sprurgeon dropped a small vial onto the ground by the car. The vial's cap came off, and the trooper could see a dark green plant material inside the vial that looked like marijuana. The trooper thought the marijuana was treated with something like PCP.

The trooper arrested Sprurgeon and read his Miranda rights to him. Trooper Weidhaas testified at the suppression hearing that Sprurgeon then admitted that he had smoked PCP that evening. The trooper did a field test of the substance in the vial, and it tested positive for marijuana and PCP.

After dealing with Sprurgeon, Trooper Weidhaas approached appellant. Appellant was in "the exact same" condition as Sprurgeon, i.e., "visibly impaired," "[n]ot very coherent," unsteady on his feet, and non-responsive. The trooper believed appellant had also used PCP. During the suppression hearing, appellant's counsel conceded that appellant was clearly "under the influence of something" when Trooper Weidhaas approached him.

After asking appellant to get out of the car, Trooper Weidhaas did a pat-down search of him for weapons. During the suppression hearing, the trooper described how he used his hands during the pat-down search. He explained that, when he reached appellant's front pocket, the trooper felt and saw a bulge that "was consistent with" the vial that Sprurgeon had dropped on the ground.

Trooper Weidhaas asked appellant about the item, and appellant was non-responsive. The trooper testified that he then asked appellant, "Would you mind showing what's in your pockets?" Appellant reached into his pocket and pulled out a vial exactly like the one that Sprurgeon dropped. When Trooper Weidhaas asked what was in the vial, appellant said "marijuana." Appellant also admitted that he had smoked PCP that night, and the trooper then arrested him.

At the suppression hearing, appellant argued that Trooper Weidhaas did not have a reasonable belief that appellant was armed and dangerous, so the pat down was in violation of his Fourth Amendment rights, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellant also argued that the pat-down search went beyond the scope of Terry because the trooper put the item between his fingers while doing the pat down. Appellant argued that the "consent" he then gave (and pulling the item out of his pocket) was tainted by these Fourth Amendment violations, and, therefore, the evidence was not admissible. The Commonwealth argued that the trooper had reasonable suspicion to believe a crime was committed and that appellant was armed and dangerous because the officer believed appellant was under the influence of PCP.

The trial court found the frisk was permissible because drugs were involved. The court also noted that the frisk was "a very close case," but denied appellant's motion to suppress. A jury found appellant guilty of possession of PCP and fined him $2,500.

A. "Armed and Dangerous"

Appellant argues that the trial court had no evidence before it to support the conclusion that the trooper reasonably believed that he was armed and dangerous, as required under Terry, 392 U.S. 1, 88 S.Ct. 1868. However, the Commonwealth on appeal does not rely upon the trial court's Fourth Amendment analysis under Terry and instead suggests that this Court can affirm the trial court's decision to deny appellant's motion to suppress on an alternative Fourth Amendment theory—that Trooper Weidhaas had probable cause to arrest and to search appellant.

We assume without deciding here that the trial court erred when it found that Trooper Weidhaas had reasonable suspicion to believe appellant was armed and dangerous. Appellant argues that we should not consider the Commonwealth's alternative justification for the trial court's denial of his motion, as the prosecutor did not argue this alternative rationale to the trial court. We must first address this argument before we can consider whether the trooper had probable cause to support his actions.

B. Right Result/Wrong Reason

The Commonwealth asks this Court to affirm appellant's conviction because Trooper Weidhaas had probable cause to arrest appellant, which would justify the search under the Fourth Amendment as a search incident to an arrest. See Chimel v. California, 395 U.S. 752, 755, 89 S.Ct. 2034, 2036, 23 L.Ed.2d 685 (1969); Wright v. Commonwealth, 222 Va. 188 193, 278 S.E.2d 849, 852-53 (1981). The Commonwealth acknowledges that the prosecutor did not specifically argue to the trial court that the trooper had probable cause to arrest, but argues that the right result was reached here, even if the court applied the wrong rationale. See Schultz v. Schultz, 51 Va. (10 Gratt.) 358, 384 (1853) ("[I]t is the settled rule that how erroneous soever may be the reasons of the court for its judgment upon the face of the judgment itself, if the judgment be right, it will not be disturbed on account of the reasons."). Appellant counters that this case does not present an appropriate situation to apply the doctrine of "right result, wrong reason" under Whitehead v. Commonwealth, 278 Va. 105, 677 S.E.2d 265 (2009), modified, ___ Va. ___, 684 S.E.2d 577 (2009). Based on the record in this case, however, we disagree with appellant.

The Supreme Court in Whitehead considered whether the evidence was sufficient to convict Whitehead of receiving stolen property. For the first time on appeal, the Commonwealth argued that Whitehead had "received the stolen property itself under the doctrine of constructive possession," id., ___ Va. at ___, 684 S.E.2d at 581 (emphasis added), and asked the Supreme Court to affirm the conviction because the right result was reached, even though the trial court used the wrong reasoning. The Supreme Court refused to consider this new theory of guilt offered by the Commonwealth, stating, "[C]ases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not `proper cases' for the application of the doctrine." Id., ___ Va. at ___, 684 S.E.2d at 581.

Nevertheless, the Supreme Court of Virginia then emphasized:

The Court of Appeals has previously observed that:

An appellate court may affirm the judgment of a trial court when it has reached the right result for the wrong reason. However [t]he rule does not always apply.... [T]he proper application of this rule does not include those cases where, because the trial court has rejected the right reason or confined its...

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5 cases
  • Roseborough v. Com.
    • United States
    • Virginia Court of Appeals
    • February 16, 2010
    ...of the judgment itself, if the judgment be right, it will not be disturbed on account of the reasons"); Perry v. Commonwealth, 55 Va.App. 122, 128-30, 684 S.E.2d 227, 229-30 (2009) (noting that an appellate court can consider legal arguments that were not specifically addressed by a trial A......
  • Bowe v. Commonwealth, Record No. 0685-09-1 (Va. App. 4/6/2010)
    • United States
    • Virginia Court of Appeals
    • April 6, 2010 by the Court of Appeals. Whitehead, 278 Va. at 115, 677 S.E.2d at 270 (emphasis added). See also Perry v. Commonwealth, 55 Va. App. 122, 129-30, 684 S.E.2d 227, 230 (2009) (discussing Whitehead); Smith v. Commonwealth, 55 Va. App. 30, 48 n.10, 683 S.E.2d 316, 326 n.10 (2009) The fa......
  • Perry v. Com.
    • United States
    • Virginia Supreme Court
    • November 4, 2010
    ...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 deci......
  • T. B.1 v. Alexandria Dep't Of Human Serv., Record No. 0029-10-4
    • United States
    • Virginia Court of Appeals
    • October 12, 2010 appellee may argue that the trial court reached the correct result, albeit for the wrong reason, see Perry v. Commonwealth, 55 Va. App. 122, 128, 684 S.E.2d 227, 229-30 (2009), but an appellee, by definition, is not a party aggrieved by the earlier decision. Thus, like the Commonwealth i......
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