Stout v. Commonwealth, Record No. 0227-08-4 (Va. App. 10/20/2009), Record No. 0227-08-4.
| Decision Date | 20 October 2009 |
| Docket Number | Record No. 0227-08-4. |
| Court | Virginia Court of Appeals |
| Parties | MARC JOSEPH STOUT, v. COMMONWEALTH OF VIRGINIA. |
Appeal from the Circuit Court of Prince William County, Lon E. Farris, Judge.
Barry A. Zweig (Zweig & Associates, PC, on briefs), for appellant.
Richard B. Smith, Special Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.
Present: Judges Kelsey, Petty and Senior Judge Clements.
Upon conditional guilty pleas, Marc Joseph Stout (appellant) was convicted of two charges of possessing cocaine with the intent to distribute in violation of Code § 18.2-248, possessing a controlled substance simultaneously with a firearm in violation of Code § 18.2-308.4, and possessing a firearm after conviction of a felony in violation of Code § 18.2-308.2. On appeal, appellant contends the trial court erred in denying his motions to suppress evidence: 1) obtained by the police after he was seized in violation of his Fourth Amendment rights; 2) seized from his motel room pursuant to a search warrant; 3) seized from a safety deposit box pursuant to a search warrant; and 4) obtained by the police through search warrants in violation of Franks v. Delaware, 438 U.S. 154 (1978).1 We hold the trial court erred in concluding the police lawfully detained appellant and in refusing to suppress a portion of the evidence. For the reasons that follow, however, we hold the trial court did not err in denying appellant's motions to suppress evidence seized pursuant to the search warrants.
As the parties are fully conversant with the record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
"[I]n considering a trial court's ruling on a suppression motion, we view the evidence in the `light most favorable to . . . the prevailing party below,' the Commonwealth in this instance, and the decision of the trial judge will be disturbed only if plainly wrong." Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994) (quoting Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)). "`[T]he burden is upon [the defendant] to show that the ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.'" McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
On the night of September 23, 2006, Detective Michael Fernald of the Prince William County police received an anonymous tip that a Caucasian male and a Caucasian female were staying at a room at the Best Value Inn, and they possessed narcotics and firearms. The tipster told Fernald the two individuals were traveling in a gray Nissan Altima with large chrome wheels. The tipster further advised there was a baby in the subjects' motel room. Fernald was in the process of interrogating a suspect in the jail when he received the tip. As a result, Fernald passed along the information to Detective Michael Sullivan, who was on duty with Officer Wayne Smith.
Sullivan and Smith drove to the Best Value Inn. They saw Misbah Ferozpuri, a female, and appellant, a Caucasian male, entering a gray Nissan Altima with large chrome wheels. Ferozpuri drove the vehicle, and appellant was the front seat passenger. By telephone, Sullivan contacted Fernald and asked whether the suspects were reported to make drug sales at the motel room or in other locations. Fernald advised that the drug sales took place away from the couple's motel room. Sullivan decided to follow the Altima.
Sullivan and Smith followed the vehicle from the Best Value Inn to the parking lot of the Super 8 Motel. The Altima backed into a parking space and remained there for several minutes. Ferozpuri and appellant did not get out of the vehicle.
Sullivan and Smith exited their vehicle and approached the Altima. Sullivan walked toward the vehicle from the left front passenger side, and Smith approached the vehicle from another direction. Sullivan was wearing a black vest with "police" in white lettering. Sullivan "gave a little wave" and Ferozpuri waved back as the officers neared the car. Sullivan walked to the passenger side of the car and spoke to appellant through the opened window.
When Sullivan asked appellant what he was doing there, he replied he was waiting for a friend. Appellant said he had come from his house, and he was living at the Best Value Inn. Sullivan then asked if appellant would exit the vehicle. Appellant questioned why Sullivan wanted him to do so. The officer replied he did not want to discuss it in front of Ferozpuri, but would talk to appellant privately at the rear of the vehicle. Appellant opened the door, and Sullivan moved toward the rear of the vehicle.
As appellant was exiting the vehicle, Sullivan saw a black gun on the right front floorboard of the car. Immediately upon observing the firearm Sullivan pinned appellant to the vehicle and handcuffed him. Searching appellant incident to arrest for possessing a concealed firearm, Sullivan found $871 in currency in appellant's left front pocket. Sullivan then searched the vehicle and found three pieces of crack cocaine.
At the suppression hearing, appellant testified that he and Ferozpuri remained in the parked vehicle for only about thirty seconds before the officers approached. Appellant said Sullivan "motioned for [him] to stay put." Likewise, Ferozpuri interpreted Sullivan's gesture as a signal not to leave. Appellant stated that when Sullivan asked him to get out of the car, he did not feel free to leave. Appellant said the officer held him against the car and handcuffed him after he bent down to pick up his sunglasses.
Following appellant's arrest, the police questioned him and Ferozpuri at the police station. Ferozpuri indicated there were guns and drugs in their motel room at the Best Value Inn. The police confirmed that appellant was the guest registered in Room 232 at the motel. The police then obtained a search warrant for Room 232 and searched it in the early morning hours of September 24, 2006. The search revealed $3,500 in cash, drugs, drug paraphernalia, and firearms.
On September 26, 2006, the police sought a search warrant for "safety deposit box number 91" at a Wachovia Bank branch in Dale City.2 The affidavit for the search warrant described the findings by police during the search of Room 232. The affidavit further indicated appellant, after his arrest, told the police he had been unemployed for months and supported himself by selling drugs. Appellant offered one of the officers $20,000 to "get [him] out of this mess." Based upon this information, the police obtained a search warrant for the safety deposit box. The search of the box revealed $5,000 in cash.
Mark Crossland initially was appointed to represent appellant upon the charges. While appellant was incarcerated awaiting trial, he wrote a letter admitting he was solely responsible for the drugs and money in the car, the motel room, and the safety deposit box. Appellant stated in the letter that neither Ferozpuri nor his brother, who was with appellant's child at the motel room at the time of appellant's encounter with the police, was involved in selling drugs. At appellant's encouragement, Crossland released appellant's letter of confession to the attorneys representing Ferozpuri and appellant's brother and to the prosecutor during plea negotiations.
Appellant contends all the evidence should have been suppressed because the police officers obtained it as a result of a detention that violated his Fourth Amendment rights. The trial court concluded that although the encounter between appellant and the police initially was consensual,
at least by the time the police officer directed him to get out of the car, it had become an investigative detention, probably before that time.
When the police officer walked up to the car in uniform and made the gesture, which the police officer characterized as a wave, I think could be more reasonably interpreted to have been a gesture to halt or stay where you are, as the police officer demonstrated, I would view that within the context to be sort of a tactical approach that the police officers had adopted to approach the car.
The way they did it was a calculated way which would, I think, fairly be objectively construed to have been designed to limit the movement of the car and limit the movement of the occupants of the car and would have been so perceived by the occupants.
All that said, he was at least subjected to an investigative detention when he was told to get out of the car.
The trial court further concluded that at the time appellant was detained by the police, the officers had sufficiently corroborated the anonymous tip to provide them with reasonable suspicion to justify the stop.
Encounters between the police and citizens "generally fall into one of three categories." McGee, 25 Va. App. at 198, 487 S.E.2d at 261.
First, there are consensual encounters that do not implicate the Fourth Amendment. Iglesias [v. Commonwealth], 7 Va. App. [93,] 99, 372 S.E.2d [170,] 173 [(1988)]. Next, there are brief investigatory stops, commonly referred to as "Terry" stops, which must be based upon reasonable, articulable suspicion that criminal activity is or may be afoot. United States v. Sokolow, 490 U.S. 1, 7 (1939). Finally, there are "highly intrusive, full-scale arrests" or searches that must be based upon probable cause to believe that the suspect has committed a crime. Id.; see also Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 746-47 (1995).
For purposes of the Fourth Amendment, an encounter ceases to...
To continue reading
Request your trial