Scott v. Commonwealth, Record No. 1482-08-2 (Va. App. 6/2/2009)

Decision Date02 June 2009
Docket NumberRecord No. 1482-08-2.
CourtCourt of Appeals of Virginia

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Unpublished Opinion

Record No. 1482-08-2.
Court of Appeals of Virginia, Richmond.
Filed June 2, 2009.

Appeal from the Circuit Court of the City of Richmond, Clarence N. Jenkins, Jr., Judge.

Cassandra M. Hausrath, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

Erin M. Kulpa, Assistant Attorney General (William C. Mims, Acting Attorney General, on brief), for appellee.

Present: Judges Elder, Powell and Senior Judge Coleman



William Lee Scott (appellant) was convicted in a bench trial of possession with intent to distribute cocaine in violation of Code § 18.2-248, possession of a firearm while in possession of cocaine in violation of Code § 18.2-308.4(C), and carrying a concealed weapon, third or subsequent offense, in violation of Code § 18.2-308. On appeal, he argues that the evidence should be suppressed because the police did not have reasonable suspicion to make an investigative detention. Alternatively, appellant argues that the evidence was insufficient to convict him of possession with intent to distribute. Because the officers developed reasonable suspicion during a valid detention pursuant to a traffic stop, we reject appellant's claim that the evidence was seized in violation of his Fourth Amendment rights. However, because the evidence was insufficient to show that the quantity of drugs was inconsistent with personal use, we reverse and remand appellant's conviction for possession with intent to distribute.

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On the evening of September 13, 2007, Officers Michael Kielb and Shane Watson observed a white Cadillac fail to properly obey a stop sign as it made a turn. After initiating a traffic stop, Watson approached the car and spoke with the driver, while Kielb scanned the interior of the vehicle to check for contraband or weapons. He recognized appellant, who was sitting in the passenger seat, as having prior arrests for drugs and weapons violations.

While looking into the vehicle from the rear window, Kielb noticed in plain view, between the passenger door and seat, a hand-rolled cigar that he "immediately thought was a blunt." Based on his past experience with narcotics, Kielb knew that marijuana users "will take an already made cigar, unravel it, dump out the tobacco content and refill it with marijuana and twist the ends, making themselves a hand-rolled cigar of marijuana." At that point, he motioned to Watson to remove the occupants from the vehicle in order to retrieve the contraband. When Kielb began to handcuff appellant, appellant attempted to flee the scene. Kielb tackled him ten feet away from the vehicle and placed him in custody. Both Kielb and Watson noticed a black object fall from appellant's waistband as he attempted to flee.

After the struggle, the officers recovered the object that had fallen from appellant's waistband—a loaded 9-millimeter handgun—as well as the blunt Kielb had seen in plain view inside the vehicle. Watson conducted a search of appellant's clothing by shaking his pants. Three baggies fell to the ground: one containing marijuana, another containing a "rock" of cocaine, and a third containing cocaine powder. The total weight of the cocaine was 0.733 gram, of which 0.442 gram was a single rock of cocaine. The officers did not find a personal smoking device or distribution paraphernalia such as scales, baggy corners, or razor blades on appellant. The officers confirmed that the blunt contained marijuana. Appellant admitted that the cigar

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blunt seized from the car was his and that he smoked marijuana approximately once a week. He did not make any statements regarding the cocaine.

Watson, as an expert in street-level narcotics distribution, testified that a heavy drug user typically consumed two to three grams of cocaine per day. Watson further testified that possession of a firearm was inconsistent with possession of the drugs for personal use.

The trial court held that the combination of factors—including Officer Kielb's experience that cigar blunts are used for purposes of smoking marijuana, the twisted end of the cigar, Kielb's familiarity with appellant's prior criminal history, and appellant's presence near an apartment complex with reported drug activity—justified the investigatory detention. The trial court reasoned that such evidence, while not rising to the level of probable cause, did amount to reasonable suspicion so that "the officer was within his right to have [appellant] removed from the vehicle just to see if anything was going on." At the conclusion of the Commonwealth's evidence, the trial court denied appellant's motion to strike, holding that the presence of the firearm was consistent with an intent to distribute and not personal use. The trial court found appellant guilty of all charges and sentenced him to a total of 25 years imprisonment with 20 years suspended. This appeal followed.


The incriminating evidence in this case stems from Officer Kielb's attempt to handcuff appellant after noticing the cigar blunt, which appellant argues was in violation of his rights under the Fourth Amendment. "What the Fourth Amendment prohibits `is not all searches and seizures, but unreasonable searches and seizures.'" Buhrman v. Commonwealth, 275 Va. 501,

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505, 659 S.E.2d 325, 327 (2008) (quoting Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889, 899 (1968)) (emphasis in original). Whether the Fourth Amendment has been violated is a question to be determined from all the circumstances and is viewed under an objective standard. See Samson v. California, 547 U.S. 843, 848, 126 S. Ct. 2193, 2197, 165 L. Ed. 2d 250, 256 (2006); Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906.

A defendant's claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo on appeal. See McCain v. Commonwealth, 275 Va. 546, 551, 659 S.E.2d 512, 515 (2008); Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). In making such a determination, we give deference to the factual findings of the trial court, but we independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment. Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000).

Appellant argues that Kielb did not have a particularized suspicion that appellant was engaged in criminal activity in order to justify handcuffing him. While conceding that the officers effected a legitimate traffic stop, appellant contends that it was not readily apparent that the cigar blunt contained illegal contraband. Appellant urges this Court to hold that mere "observation of material which can be used for legitimate purposes" cannot give rise to reasonable suspicion, "even though . . . such material is often used for illegitimate purposes."

The police may stop a person for the purpose of investigating possible criminal behavior without violating the Fourth Amendment "if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot . . . ." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989). A reasonable suspicion is more than an "unparticularized suspicion or `hunch.'" Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. "[T]he touchstone of our analysis . . . is always `the reasonableness in all the circumstances

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of the particular governmental invasion of a citizen's personal security.'" Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S. Ct. 330, 332, 54 L. Ed. 2d 331, 335 (1977) (quoting Terry, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904). "A general suspicion of some criminal activity is enough, as long as the officer can, based on the circumstances before him at the time, articulate a reasonable basis for his suspicion." Hatcher v. Commonwealth, 14 Va. App. 487, 490, 419 S.E.2d 256, 258 (1992).

As appellant concedes, "[a]n officer may effect a traffic stop when he has reasonable suspicion to believe a traffic or equipment violation has occurred." McCain, 275 Va. at 553, 659 S.E.2d at 516. However, the potential risks associated with traffic investigations permit police officers to take certain additional steps to protect themselves and maintain the status quo without violating the Fourth Amendment so long as those methods are reasonable. See Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41, 48 (1997) (permitting an officer to ask the driver and any passengers to exit the vehicle); Harris v. Commonwealth, 27 Va. App. 554, 563, 500 S.E.2d 257, 261 (1998) (finding a trooper's display of his firearm during a traffic stop to be a reasonable response to the defendant's "failure to show his hands while moving in the trooper's direction").

The United States Supreme Court recently held in Arizona v. Johnson, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009), that police officers may detain a driver and any passengers "pending inquiry into a vehicular violation," without "cause to believe any occupant of the vehicle is involved in criminal activity." Id. at 784, 172 L. Ed. 2d at 700. The Court recognized that the "temporary seizure of driver and passengers . . . remains reasonable[] for the duration of the stop. . . [until] the police have no further need to control the scene[.]" Id. at 788, 172 L. Ed. 2d at 704.

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Here, as in Johnson, Kielb was justified in asking appellant to exit the car during the course of a lawful traffic stop. As Kielb testified, the sole purpose of handcuffing appellant was to retrieve what he believed to be a cigar containing marijuana. This was a reasonable method of securing appellant and insuring Kielb's safety while confirming his suspicions.1 See United States v....

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