Thomas Muse v. Commonwealth, Record No. 1556-03-2 (VA 6/22/2004)

• Decision Date: 22 June 2004
• Docket Number: Record No. 1556-03-2.
• Parties: RYLAND THOMAS MUSE v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 1

Unpublished Opinion

RYLAND THOMAS MUSE v. COMMONWEALTH OF VIRGINIA.

Record No. 1556-03-2.

Court of Appeals of Virginia, Richmond.

June 22, 2004.

Appeal from the Circuit Court of the City of Richmond, Bradley B. Cavedo, Judge.

Gregory W. Franklin, Senior Appellate Defender (Office of the Public Defender, on briefs), for appellant.

Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: Judges Elder, Frank and Humphreys.

MEMORANDUM OPINION^*

JUDGE ROBERT J. HUMPHREYS.

Ryland T. Muse appeals from his bench trial conviction for possession of cocaine with intent to distribute, in violation of Code § 18.2-248. Muse contends the trial court should have suppressed the cocaine found following a weapons pat down because the pat down was unreasonable under the circumstances. Muse further contends the evidence was insufficient to prove he possessed the cocaine with intent to distribute it. For the reasons that follow, we affirm Muse's conviction.

On appeal of the denial of a motion to suppress, we consider the evidence adduced at both the suppression hearing and the trial, DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987), and we view it in the light most favorable to the Commonwealth, Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). However, we review de novo the trial court's application of legal standards such as reasonable suspicion to the particular facts of the case. Ornelas v. United States, 517 U.S. 690, 699 (1996).

As the trial court found here, no seizure occurred when Officer Davenport initially approached Muse on the public street. See Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 869-70 (1992) (discussing three types of encounters with the police: consensual, investigatory, and arrest); see also Walker v. Commonwealth, 42 Va. App. 782, 595 S.E.2d 30 (2004). However, when Officer Davenport frisked Muse, or "patted" him down, the encounter took the form of a seizure. At that point, a reasonable person would not have believed he could ignore the officer's requests and walk away. Toliver v. Commonwealth, 23 Va. App. 34, 36, 473 S.E.2d 722, 724 (1996) ("While being frisked, no reasonable person would feel free to walk away.").

Nevertheless, we find that Officer Davenport possessed the requisite reasonable suspicion to briefly detain Muse and investigate the circumstances. We further find that Officer Davenport possessed a reasonable suspicion that Muse was armed and dangerous. See Terry v. Ohio, 392 U.S. 1, 32-33 (1968) (Harlan, J., concurring) ("[P]olicemen have no more right to `pat down' the outer clothing of passers-by, or persons to whom they address casual questions, than does any other citizen. . . . [I]f the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop."); United States v. Burton, 228 F.3d 524, 528 (4th Cir. 2000) ("Once an officer has a basis to make a lawful investigatory stop, he may protect himself during that stop by conducting a search for weapons if he `has reason to believe that the suspect is armed and dangerous.'" (quoting Adams v. Williams, 407 U.S. 143, 146 (1972))).

First, "[t]o conduct an investigatory stop, a police officer must have reasonable, articulable suspicion that a specific individual is engaged in criminal activity." Walker, 42 Va. App. at 790, 595 S.E.2d at 34. "`To determine whether a police officer had a particularized and objective basis for suspecting that the person stopped may be involved in criminal activity, a court must consider the totality of the circumstances.'" Id. (quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 465 (2003)). Actual proof that "criminal activity is afoot is not necessary" — the investigating officer need only have reason to believe that such criminal activity "may be afoot." Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77, 79 (1992); see also United States v. Arvizu, 534 U.S. 266, 273 (2002). Though an officer's reliance on a mere hunch cannot justify a stop, United States v. Sokolow, 490 U.S. 1, 7 (1989), "the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." Arvizu, 534 U.S. at 274. "`Circumstances we have recognized as relevant [to this determination] . . . include characteristics of the area surrounding the stop, the time of the stop, the specific conduct of the suspect individual, the character of the offense under suspicion, and the unique perspective of a police officer trained and experienced in the detection of crime.'" Walker, 42 Va. App. at 791, 595 S.E.2d at 34 (quoting Christian v. Commonwealth, 33 Va. App. 704, 714, 536 S.E.2d 477, 482 (2000) (en banc)). For instance,

[i]n United States v. Mayo, [381 F.3d 802 (4th Cir. 2004)], the Fourth Circuit overturned the district court's grant of a motion to suppress evidence that the police found while conducting a Terry stop and pat down. The court found the police had reasonable suspicion to stop Mayo, based on the totality of the circumstances. Those circumstances included 1) the encounter occurred in a high-crime area, 2) Mayo's hand movements suggested he was engaged in an illegal activity [(possessing a concealed weapon without a permit)], 3) Mayo attempted to avoid police scrutiny, and 4) Mayo behaved nervously when approached by the police. Id. at [807-08].

Walker, 42 Va. App. at 791, 595 S.E.2d at 34-35.

Here, Officer Donald Davenport, of the Richmond Police Department, first observed the car Muse was in driving in an area of Richmond known as "the most productive open-air [drug] market . . . in first precinct." The driver of the car was driving "rather slowly," "probably 10 miles per hour or less." Muse was in the backseat.

Officer Davenport followed behind the car as the driver twice "ma[de] a big circle in that area" and twice "pulled over."¹ The second time the car pulled over, Muse got out of the car and began walking on the sidewalk, in the direction of Officer Davenport's patrol car. At that point, Officer Davenport leaned outside of his patrol car and asked Muse if he could talk with him. Muse replied, "yeah," and Officer Davenport asked him his name. Muse appeared "unusually nervous" and after some hesitation, said that his name was Earnest Woodley.² When Officer Davenport asked Muse "what he was doing in the area," Muse replied that he was "going to visit" "Earnest." Muse appeared "confused" and gave Officer Davenport several birth dates that were inconsistent with the age he provided Officer Davenport. Muse "bec[ame] more nervous during [the] entire conversation," "looking around from left to right," and "shifting" his feet.

At that time, Officer Davenport asked Muse to point to the "house [he] was going to." Muse did so, and Officer Davenport sent another officer "to check and see if anybody was there." When the other officer returned, he told Davenport, "[N]o, nobody there knows him."

Officer Davenport then observed "a rather distinct bulge on the left side of [the] Army field jacket" Muse was wearing. For "[his] safety," Officer Davenport "patted [Muse] down." As Officer Davenport "placed both hands and went down both sides of the jacket," he felt a bulge of "metal material" on the left side. "Simultaneously, [Officer Davenport's] right hand was on the other side pocket, and immediately, without manipulation of anything, [he] felt a cylindrical hard object, which [he] identified to be a hypodermic needle." Officer Davenport looked inside Muse's left pocket and saw that the "metal" object was an empty "Coke can." He then asked Muse if he was diabetic. Muse replied that he was not.

Subsequently, Officer Davenport "went inside and retrieved the [syringe]" which he believed to be "illegal." Davenport noticed that there was liquid inside the hypodermic needle. Because he believed the liquid was heroin, he placed Muse under arrest and conducted a full search of Muse's person incident to that arrest. Davenport found a pill bottle containing eight aluminum packets of an "off-white rock substance," which he believed to be cocaine, as well as $347 in currency.

The trial court denied Muse's motion to suppress, finding, in relevant part:

I don't think any one factor is enough to get to the pat-down, but the cases say that you can look at the totality of the circumstances. And I believe that under the totality of the circumstances that [Officer Davenport] testified to, the Terry stop was appropriate. It was lawful.

The driving, the circling the block, certainly is consistent with Mr. Muse's testimony that he was looking for a particular place. He may not have known exactly where it was and so forth. Yet given the nature of the neighborhood that Officer Davenport was familiar with, being the highest productive area in terms of drug arrests in his precinct, it was consistent with unusual or suspicious behavior from his experience, something that merited further observation.

For these same reasons — specifically, the nature of the place, Muse's hesitant and nervous behavior, his confused and inconsistent responses, as well as his overall demeanor — we find that Officer Davenport possessed knowledge of objective facts sufficient to give him reasonable suspicion to stop Muse and investigate his actions. See Andrews v. Commonwealth, 37 Va. App. 479, 491, 559 S.E.2d 401, 407 (2002) (internal quotations omitted) (noting that in determining whether an officer possessed reasonable suspicion to justify an investigatory stop and...