Pettis v. Commonwealth
| Decision Date | 23 August 2022 |
| Docket Number | 1133-21-2 |
| Parties | DAVID LEE PETTIS, JR. v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
DAVID LEE PETTIS, JR.
v.
COMMONWEALTH OF VIRGINIA
No. 1133-21-2
Court of Appeals of Virginia
August 23, 2022
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY S. Anderson Nelson, Judge
(Gregory A. Ullom, Assistant Public Defender, on briefs), for appellant.
(Jason S. Miyares, Attorney General; Matthew J. Beyrau, Assistant Attorney General, on brief), for appellee.
Present: Judges Humphreys, Causey and Senior Judge Clements
MEMORANDUM OPINION [*]
PER CURIAM
On July 13, 2021, David Lee Pettis, Jr was convicted of two counts of distribution of a controlled substance, second offense, in violation of Code § 18.2-248, two counts of attempted possession of a firearm while in possession of drugs, in violation of Code § 18.2-308.4, attempted possession of a firearm after being convicted of a non-violent felony, in violation of Code § 18.2-308.2, and attempted possession with intent to distribute drugs, in violation of Code § 18.2-248.03.[1] Pettis challenges the circuit court's denial of his motion to suppress and the sufficiency of the evidence to sustain his convictions.[2]
BACKGROUND
"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Poole v. Commonwealth, 73 Va.App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In doing so, we discard any of Pettis's conflicting evidence, and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Gerald, 295 Va. at 473.
On February 14, 2020, Crewe Police Officer Rondell White responded to a report of gunshots at a business in Nottoway County. Surveillance video from the business depicted a red, four-door Volvo sedan entering the parking lot. The driver opened his door and fired five shots. He then closed the door and drove out of the parking lot with a passenger in the front passenger seat. White recovered five brass cartridges from a .40 caliber gun from the area where the car had stopped. In addition, after identifying the car's license plate number in the surveillance video, White put out a "be-on-the-lookout" alert (BOL) for the car and Pettis, who was the car's registered owner.
Mecklenburg County Sheriff's Sergeant Andy Ramsey received the BOL in mid-afternoon. About ninety minutes later, he was notified that a red Volvo was driving recklessly on a nearby highway and had turned onto a side road. Ramsey drove to the location and found Pettis standing outside a red, four-door Volvo sedan parked on the shoulder with its hood raised, its doors unlocked, and the key in its ignition. The Volvo's license plate matched that of the car in the BOL, and Pettis matched the descriptions of the suspect in the shooting. There were no other vehicles or individuals in the area.
The Volvo appeared to be inoperable, but its engine was warm even though it was a cold day. Ramsey asked if Pettis wanted a tow truck called, and Pettis replied that he did. Pettis told
Ramsey he had come from Nottoway County and was going to South Boston to find work at "a log yard." Ramsey asked if the Volvo was the "only mode of transportation" Pettis had; Pettis replied, "Uh uh, I've got other modes of transportation." Ramsey smelled marijuana coming from the vehicle.
Ramsey asked Pettis if he had weapons and requested permission to check. Pettis did not consent but lifted his shirt to display his waistband. Ramsey told Pettis not to put his hands in his pocket, but Pettis continued doing so, removing them each time Ramsey told him to. Pettis moved around a lot, looked in various directions, and stretched his leg. Accordingly, Ramsey thought Pettis was preparing to flee and handcuffed him and placed him in a patrol car. As he was doing so, backup officers arrived, including a K-9 unit.
Ramsey and Corporal Bruce King searched the unlocked Volvo's passenger compartment, looking in small containers and under the front seats for marijuana. King found a white substance in "baggies" inside two small plastic containers on the front passenger seat, which subsequent laboratory analysis determined was cocaine. Inside a grocery-style bag on the front passenger floorboard, King found scales and a large amount of a white substance, which subsequent laboratory analysis determined was methamphetamine. A .40 caliber handgun was in the pocket on the back of the front passenger seat; subsequent forensic analysis determined that it had fired the five cartridges found at the scene of the shooting. In addition, a cell phone was in the vehicle's front passenger seat beside and under the containers that held cocaine; two other phones were on the floorboard, and a small bag containing marijuana was in a compartment on the dashboard.
Before trial, Pettis moved to suppress the drugs and firearm found in the vehicle as discovered in violation of the Fourth Amendment to the United States Constitution and of the Constitution of Virginia. The circuit court denied Pettis's motion to suppress, finding that Ramsey acted in both community caretaker and investigatory roles when he encountered Pettis. The circuit
court found that there was a "strong smell of marijuana," and Pettis and the vehicle matched the alert that Ramsey had received. The circuit court concluded that Ramsey seized Pettis by handcuffing him, but the seizure was lawful because Ramsey had a reasonable articulable suspicion. Finally, the circuit court found that the search of the Volvo was lawful.
At trial, Investigator Rusty Gordon, whom the circuit court qualified as an expert in narcotics investigations, testified that the 106 grams of methamphetamine found in Pettis's car had a "street value" of about $10,000. The fifteen grams of cocaine found had a "street value" of about $1500. According to Gordon, a person possessing cocaine or methamphetamine for personal use would have "no more" than "two grams," and the quantities recovered from Pettis's vehicle were inconsistent with personal use. In addition, the "scales, baggies, money, multiple cell phones," and pistol also suggested that the drugs were not for personal use. Gordon also testified that some of the text messages extracted from the three cell phones referred to "prices and . . . terminology" related to drug distribution. One text message referred to Pettis by his last name, another contained his address, and a photograph of Pettis was also recovered.
After the close of the evidence and argument by counsel, the circuit court found that the Volvo was the car seen in the surveillance footage of the shooting and "circumstantial evidence strongly indicate[d]" that Pettis was the driver. That evidence included Pettis's request for a tow truck, remarks about "where he's going" and where he thought he was, and the cell phones that were recovered. The circuit court further found that Pettis was in possession of the drugs and the pistol, all of which were within Pettis's reach "in the front passenger seat and in the front passenger seat floorboard and a pocket behind the front passenger seat." This appeal follows.
ANALYSIS
A. Validity of the search
Pettis argues that the search of the Volvo violated the Fourth Amendment because it was not supported by probable cause "as it relates to . . . appellant." He emphasizes that Ramsey did not observe Pettis commit any illegal act or drive the vehicle and that Pettis did not have the Volvo's keys. Further, he argues that although there was a BOL regarding the shooting and a separate report of reckless driving, Ramsey's encounter with Pettis was not a traffic stop but a "community caretaking" encounter. Additionally, Ramsey could not isolate the smell of marijuana to Pettis's person rather than the vehicle. Pettis also argues that Ramsey had no cause to place him in handcuffs because he "did not pose a threat." He emphasizes that Ramsey was awaiting backup and saw no weapons, and Pettis complied each time Ramsey directed him to remove his hands from his pockets.
"When...
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