Taylor v. Com., 1046-88-1

• Decision Date: 24 April 1990
• Docket Number: No. 1046-88-1,1046-88-1
• Citation: 10 Va.App. 260,391 S.E.2d 592
• Parties: Randolph TAYLOR v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 592

391 S.E.2d 592

10 Va.App. 260

Randolph TAYLOR v. COMMONWEALTH of Virginia.

Record No. 1046-88-1.

Court of Appeals of Virginia.

April 24, 1990.

Thomas L. Woodward, Jr., Suffolk, for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BAKER and BARROW, JJ.

KOONTZ, Chief Judge.

In a bench trial, Randolph Taylor was convicted of possession of a sawed-off shotgun in violation of Code § 18.2-300(B). On appeal, Taylor raises the following issues: (1) whether the officers had a reasonable suspicion of criminal activity to stop and detain Taylor; (2) whether the gun was properly seized as the product of a protective search incident to an investigative stop; (3) whether the seizure of the gun was valid under the plain view doctrine; (4) whether Taylor's incriminating statements were admissible; and (5) whether the evidence was sufficient to prove Taylor possessed a sawed-off shotgun.

At the hearing on Taylor's motion to suppress, Officer David Livingston of the Suffolk Police testified that on Saturday evening, April 18, 1987, he and Officer David Broadwell were patrolling the grounds of Tidewater Community College. The officers were patrolling the area because the area was a popular "hangout" on weekend nights associated with the use of alcohol and marijuana. Further, in the past the police had received reports of gun fire and target shooting in the vicinity. At approximately 10:48 p.m., the officers noticed two vehicles parked one behind the other on a narrow path in the woods approximately 150 feet off the paved road. Their suspicions aroused, Livingston turned his vehicle's headlights off and proceeded down the path. Upon reaching the parked vehicles, Livingston turned the headlights on and activated his vehicle's blue lights. At that time, he and Broadwell saw Taylor and three other individuals emerge from the woods. Livingston parked his vehicle with its front end facing the first vehicle, a white pick-up truck, thereby blocking the vehicles' passage. The officers asked for and received identification. Livingston testified that while Broadwell was running a computer check on the individuals, he walked to the back of the pick-up truck and shined his flash light in the bed of the truck. Livingston observed an Army duffel bag with approximately six inches of one or two gun stocks protruding, one of which had been sawed- off at the butt. Livingston testified that he picked up the duffel bag and removed the guns from the bag "for [his] safety to see what [he] was dealing with." After removing the guns from the bag, Livingston saw that the gun which had been sawed-off at the butt had also been sawed-off at the barrel. Livingston held the gun up and asked to whom it belonged. Taylor responded that it was his, and that he had purchased it for twenty dollars. Livingston confiscated the gun but did not arrest Taylor at that time. Livingston later discussed the matter with his Lieutenant, and the following day a warrant for Taylor's arrest was issued and executed.

Taylor first argues that the officers could not lawfully stop and detain him under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) because they lacked a "particularized and objective basis for suspecting [Taylor] of criminal activity." Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982) (citation omitted). As the Commonwealth correctly points out, this argument was not raised at trial. However, resolution of this issue is necessary to our analysis of other issues presented in this appeal. Therefore, we address this issue only insofar as we find the initial stop and detention of Taylor was lawful under Terry.

Taylor also argues that the gun could not be seized under the authority either of Terry, as the product of a protective search incident to an investigative stop, or under the plain view exception to the warrant requirement. The trial court held that the gun was properly seized because the officers "had authority to make a reasonable inquiry under the circumstances that existed out there that night. The sawed-off shotgun is in plain view, the butt of it sticking out of a bag.... I think the officer conducted himself properly." While it is difficult to discern from this statement under which theory the trial court found Livingston had authority to seize the gun, for the reasons that follow we find the trial court correctly ruled the gun was properly seized, and, therefore, constituted admissible evidence.

We begin with an analysis of Terry. In Terry, the Supreme Court held:

[w]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

392 U.S. at 30-31, 88 S.Ct. at 1884-85. In Terry, the Court emphasized that when assessing an officer's conduct "there is 'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.' " Id. at 21, 88 S.Ct. at 1879 (quoting Camara v. Municipal Court, 387 U.S. 523, 534-35, 536-37, 87 S.Ct. 1727, 1734, 1735, 18 L.Ed.2d 930 (1967)). "[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 27, 88 S.Ct. at 1883. In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court expanded its ruling in Terry and held:

[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

Id. at 1049, 103 S.Ct. at 3481 (footnote omitted). In reaching this conclusion, the Court reasoned that "roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect." Id. This danger is, in part, due to the fact that in a Terry investigation the officer has not yet taken custody and control over the suspect as he would if effecting an arrest. Id. 463 U.S. at 1052, 103 S.Ct. at 3482.

With these principles in mind, we turn to the facts before us to determine whether Officer Livingston properly seized the sawed-off shotgun. Livingston testified that while he and Broadwell were waiting for the results of the computer check he shined his flashlight in the bed of the pick-up truck. Clearly, this action implicated no fourth amendment concerns. See Derr v. Commonwealth, 6 Va.App. 215, 220, 368 S.E.2d 916, 918-19 (1988). Livingston observed a duffel bag from which approximately six inches of one or two gun stocks was protruding. Livingston stated that the stocks were in plain view, and that he picked up the bag and removed the guns for his and Broadwell's safety. Taylor argues that the officers did not have reason to fear for their safety since neither he nor his companions displayed any aggressive conduct during their detention. However, we do not believe that this display of cooperation during the initial stages of the encounter was sufficient to allay Livingston's fear for his and Broadwell's safety after discovering the guns. The incident occurred late at night in a secluded wooded area associated with the use of alcohol, marijuana and guns. The suspects outnumbered the officers by two, creating a risk that the officers might have been overpowered by the group. Further, because of the position of the vehicles on the narrow path and the ready accessability of the guns in the bed of the truck, the officers were exposed to the danger that any one of the individuals at the scene might harm them with these guns as the officers left the scene. Thus, we find that under the circumstances, once Livingston saw the guns protruding from the bag he had reason to believe Taylor and his companions might be dangerous and consequently that his safety or that of the other officer was in danger.

Taylor argues that even if Livingston did reasonably fear for his and Broadwell's safety, he did not have authority to seize the guns. In support of this position Taylor relies on the language employed by the Court in Long to the effect that an officer may conduct "a search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden...." 463 U.S. at 1049, 103 S.Ct....