Purdie v. Com.

• Decision Date: 10 July 2001
• Docket Number: Record No. 0970-00-4.
• Parties: Maurice PURDIE v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

549 S.E.2d 33

36 Va. App. 178

Maurice PURDIE v. COMMONWEALTH of Virginia.

Record No. 0970-00-4.

Court of Appeals of Virginia, Alexandria.

July 10, 2001.

Peter M. Baskin (Pelton, Balland, Young, Demsky, Baskin & O'Malie, P.C., on brief), Arlington, for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: ANNUNZIATA, BUMGARDNER and CLEMENTS, JJ.

ANNUNZIATA, Judge.

The appellant, Maurice Purdie, appeals his convictions for possession of cocaine, in violation of Code § 18.2-250, and for possession of marijuana,¹ in violation of Code § 18.2-250.1. Purdie contends the trial court erred in denying his motion to suppress the evidence of the cocaine and marijuana seized from his person. Because the police had probable cause to arrest Purdie at the time they conducted the search and seized the evidence, we hold the trial court properly denied Purdie's motion to suppress and affirm the convictions.

BACKGROUND

On appeal, we view the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On November 13, 1998, at about 8:30 p.m., Officer Curtis Blake of the Arlington Police Department was on duty in an unmarked police car equipped with emergency lights and a siren. He saw a vehicle traveling east on 24th Street turn south onto Glebe Road. The vehicle attracted Blake's attention because it had tinted windows that the officer believed were darker than permitted by the Code of Virginia. Blake had previously written twenty to thirty summonses for "excessive tint," and believed the front window of the vehicle had "too much tint."

Blake activated his emergency lights and tapped on his siren several times in an effort to stop the vehicle. Nevertheless, the vehicle "traveled about 300 yards before it finally pulled over...." Blake did not recognize the driver, but he knew the two passengers. Purdie was in the front passenger seat, and Terry Mangun was in the back seat.

Officer Blake knew Purdie was a "police fighter," as well as a "police runner." The officer also knew that he was involved in the distribution of narcotics and had committed "violent criminal offenses." Because Blake was the only police officer present when he stopped the vehicle, Blake was concerned for his safety. Shortly thereafter, backup officers arrived on the scene.

Officer Chris Dengeles, the next officer to approach the vehicle, also immediately recognized Purdie. According to Dengeles, Purdie had a reputation in the police community for being dangerous. Dengeles knew Purdie from his prior involvement with the police, beginning some time in late 1989 or early 1990. Specifically, Dengeles knew that Purdie had previously stabbed a police officer and had been arrested after he fled from an officer and discarded narcotics while attempting to flee. Dengeles's safety concerns were amplified by the fact that the vehicle failed to stop until it had traversed some 300 yards after Blake activated his emergency equipment. Dengeles testified that the failure to stop immediately when ordered to do so often indicates that those in the car might "run" or are "buying time" before they encounter the police.

In order to safely conduct a test of the tint level of the windshield, Blake asked the occupants to exit the vehicle. Dengeles noticed that as soon as Blake gave the order to exit, Purdie "became very nervous." Dengeles described Purdie as "hesitant about getting out of the car," "looking around a lot, and "hunched over slightly." He remained in a bent position as he walked from the car, giving rise to Dengeles's belief that Purdie was hiding something in the area of his waistband, lower abdomen, or groin area. Once Purdie passed Dengeles, and his back was toward the officer, Purdie straightened up, giving further credence to Dengeles's suspicion that Purdie was concealing something somewhere on the front portion of his body.

Dengeles continued to observe Purdie as he headed toward the back of the car. Concerned about Purdie's suspicious behavior, Dengeles continued his observation as Officer Conigliaro conducted a patdown while Purdie stood next to a guardrail. When Conigliaro reached the areas of Purdie's body where Dengeles suspected Purdie was hiding something, Purdie lifted his leg and put his foot on the guardrail in a manner that concealed the groin and front waistband areas. Because Conigliaro failed to check Purdie's waist or groin areas at that time, Dengeles concluded the frisk was inadequate and his safety concerns were, therefore, not dispelled.

Dengeles continued to watch Purdie as he sat on the guardrail near the car. He saw Purdie look from side to side. "He started to look out of the corner of his eyes at the location of all of [the] officers" and looked "360 degrees all around him as well." He further observed Purdie, who was wearing a bulky jacket, move his hands, as if "gathering something" inside the pockets of the jacket, and remove them, his fists clenched. The officer further explained that Purdie then looked around, put his hands down by the side of the guardrail and then back into his pockets. Purdie repeated the movements "a couple more times where he would gather something, bring it out, look at me and then put his hand back in his pocket."

Based upon Purdie's behavior, and because Conigliaro never checked the area where Dengeles believed Purdie might have concealed something, Dengeles decided to conduct a second patdown. When Dengeles told Purdie to put his hands on the car, Purdie had his hands in his pockets "gathering whatever he was gathering." He "took his hand out of his pocket, closed fist, and walked slowly over to the car," with Dengeles beside him. Immediately before putting his hands on the car, Purdie "quickly brought his hand up to his mouth" and swallowed whatever he had in his hand before the police could stop him.

Dengeles had seen the hand-to-mouth movement dozens of times, characterizing it as the manner in which drugs are destroyed before the police can seize them. Consistent with his experience, and based upon his observations of Purdie's behavior, the officer concluded that Purdie was about to swallow narcotics.

The police unsuccessfully attempted to grab Purdie's hand as it went to his mouth. After restraining him on the ground, the officers were unable to retrieve anything from Purdie's mouth and found his hand empty. Their order to "spit out whatever he had in his mouth" went unheeded. Dengeles reached inside the pocket from which Purdie had taken his hand before bringing it to his mouth and retrieved a piece of crack cocaine. Marijuana was also found in Purdie's left jacket pocket.

ANALYSIS

On appeal from a trial court's ruling denying a defendant's motion to suppress evidence, the defendant bears the burden of showing that the denial of the motion to suppress constituted reversible error. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980); Motley v. Commonwealth, 17 Va.App. 439, 440-41, 437 S.E.2d 232, 233 (1993). In reviewing the legality of a search, "we are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc).

However, we review de novo "[u]ltimate questions of reasonable suspicion and probable cause." Id. at 197, 487 S.E.2d at 261; see Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000); McNair v. Commonwealth, 31 Va.App. 76, 82, 521 S.E.2d 303, 306 (1999) (en banc).

Purdie does not challenge the stop of the vehicle in which he was a passenger, the request for him to exit the vehicle, or the initial patdown conducted by Officer Conigliaro. Purdie's claim is limited to the legality of Officer Dengeles's search of Purdie's jacket pocket. Purdie contends that Dengeles had neither a reasonable, articulable suspicion that Purdie was armed before conducting a second patdown, nor probable cause to search Purdie. We disagree with Purdie's contention and find that because Dengeles had probable cause to arrest Purdie, the search was legal.

When determining whether there was probable cause to support an arrest, we examine the "totality of the circumstances." Yancey v. Commonwealth, 30 Va.App. 510, 516, 518 S.E.2d 325, 328 (1999); United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.Ct. 1581, 1586, 104 L.E d.2d 1 (1989).

[P]robable cause is a flexible, commonsense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief' that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.

Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) (citation omitted). Probable cause does not require "an actual showing," but, rather, "only a probability or substantial chance of criminal activity." Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 2335, n. 13, 76 L.Ed.2d 527 (1983); Quigley v. Commonwealth, 14 Va.App. 28, 34, 414 S.E.2d 851, 855 (1992). "`Probable cause exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed.'" Jones v. Commonwealth, 18 Va.App. 229, 231, 443 S.E.2d 189, (1994) (citation omitted); see Schaum v. Commonwealth, 215 Va. 498, 500, 211 S.E.2d 73, 75 (1975)

. "If an officer has reason to believe that a person is committing a felony in his presence by possessing contraband or a...