Thompson v. Com.

• Decision Date: 28 April 2009
• Docket Number: Record No. 2408-07-1.
• Parties: George Sherrell THOMPSON v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

675 S.E.2d 832

54 Va. App. 1

George Sherrell THOMPSON v. COMMONWEALTH of Virginia.

Record No. 2408-07-1.

Court of Appeals of Virginia, Chesapeake.

April 28, 2009.

From the Circuit Court of the City of Norfolk, Everett A. Martin Jr., Judge.^*

J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: ELDER, FRANK and HALEY, JJ.

FRANK, Judge.

George Sherrell Thompson, appellant, was convicted, in a bench trial, of possession of cocaine with the intent to distribute, in violation of Code § 18.2-248; possession of a firearm while possessing with the intent to distribute cocaine, in violation of Code § 18.2-308.4, possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2; carrying a concealed weapon, second offense, in violation of Code § 18.2-308, and possession of marijuana, in violation of Code § 18.2-250.1. On appeal, appellant claims the trial court erred in denying his motion to suppress, contending the police had no legal basis to pat him down. For the reasons stated, we reverse appellant's convictions.

BACKGROUND

On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).

So viewed, in the morning of December 10, 2006, Officer Gerard Cofer of the Norfolk Police Department approached a Lafayette Boulevard address to execute an arrest warrant for a person inside that residence. The officer observed appellant standing with two other men "loitering" in front of a convenience store on Lafayette Boulevard. Cofer knew from his experience as a police officer, having made arrests at that location, that the area was known as an "open market for drug sales." As an undercover officer, Cofer had previously made drug buys at that location and had made several drug-related arrests there. Cofer testified loitering was a factor in such sales. Signs prohibiting loitering or trespassing were posted in front of the store, and the City of Norfolk had authorized the police department to enforce "no trespassing" at that convenience store.

Prior to executing the arrest warrant at the residence, Cofer observed appellant for approximately five minutes. The execution of the arrest warrant took "about ten minutes." Cofer then returned to the convenience store. Appellant was "still loitering" in front of the store. He observed appellant for another three to five minutes before he approached appellant. Cofer was dressed in his police uniform, displaying his badge. The two men with appellant separated and walked away.

Upon seeing Cofer, appellant started walking toward the front door of the store, but he voluntarily turned around at Cofer's request. Cofer asked to see appellant's identification, stating that he wanted to check whether appellant had any outstanding warrants. Appellant gave Cofer the identification, offering no explanation as to why he was standing in front of the store.

While waiting for the warrant check, Cofer asked appellant if he had any weapons or contraband. Appellant did not respond, and Cofer repeated the question. Appellant again was unresponsive and began acting nervously. Appellant's "hand started to tremble." Appellant was "shifting his body weight," and appeared to be "looking for different avenues of escape." The officer believed appellant's behavior far exceeded the "small degree of nervousness" typically observed during a routine police encounter.

Cofer asked appellant a third time if he had any weapons. When appellant remained unresponsive, Cofer placed him on the wall near the front door of the store. Concerned that appellant had a concealed weapon, Cofer told appellant he was going to pat him down for weapons for the officer's safety. Cofer began the pat down.

As the officer reached toward appellant's waistband, appellant "snatched his right hand down and went towards the left side of his waistband." Cofer grabbed appellant's right wrist. He then felt what he believed from his experience was the handle of a handgun in the left front side of appellant's waistband.

Upon lifting appellant's shirt, Cofer discovered a .45 caliber pistol protruding from appellant's waistband. Cofer then placed appellant in custody and handcuffed him. During a subsequent search incident to arrest, Cofer recovered a fully loaded magazine clip for the handgun, a bag containing marijuana and cocaine, and a dollar bill with cocaine residue.

Pretrial, appellant filed a motion to suppress, alleging that the officer had no reasonable articulable suspicion to conduct a pat down, nor probable cause to search. The trial court denied the motion.

This appeal follows.

ANALYSIS

On appeal, appellant argues his seizure was illegal because the police had no reasonable articulable suspicion that he was engaged in criminal activity in violation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He further contends that the pat down was illegal because the police had no reason to believe he was armed and dangerous.

When reviewing a trial court's denial of a motion to suppress, "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) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). The burden is on the defendant to show that the denial of his suppression motion, when the evidence is considered in the light most favorable to the Commonwealth, was reversible error. McCain v. Commonwealth, 261 Va. 483, 489-90, 545 S.E.2d 541, 545 (2001) (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). "`Ultimate questions of reasonable suspicion and probable cause to make a warrantless search'" involve questions of both law and fact and are reviewed de novo on appeal. McGee, 25 Va. App. at 198, 487 S.E.2d at 261 (quoting Ornelas, 517 U.S. at 691, 116 S.Ct. 1657).

The Fourth Amendment prohibits only unreasonable searches and seizures. James v. Commonwealth, 22 Va.App. 740, 745, 473 S.E.2d 90, 92 (1996). It is not unreasonable for a police officer to conduct a limited pat-down search for weapons when the officer can point to "specific and articulable facts" "which reasonably lead[] him to conclude, in light of his experience, that `criminal activity may be afoot' and that the suspect `may be armed and presently dangerous.'" Lansdown v. Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110 (1983) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868), cert. denied, 465 U.S. 1104, 104 S.Ct. 1604, 80 L.Ed.2d 134 (1984). "Reasonableness is judged from the perspective of a reasonable officer on the scene allowing for the need of split-second decisions and without regard to the officer's intent or motivation." Scott v. Commonwealth, 20 Va.App. 725, 727, 460 S.E.2d 610, 612 (1995) (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 1871-73, 104 L.Ed.2d 443 (1989)). An officer is entitled to view the circumstances confronting him in light of his training and experience, Terry, 392 U.S. at 27, 88 S.Ct. 1868, and he may consider any suspicious conduct of the suspected person. Williams v. Commonwealth, 4 Va.App. 53, 67, 354 S.E.2d 79, 86-87 (1987).

"[A]n appellate court decides cases `on the best and narrowest ground available.'" Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en banc) (quoting Air Courier Conference v. Am. Postal Workers Union, 498 U.S. 517, 531, 111 S.Ct. 913, 921-22, 112 L.Ed.2d 1125 (1991) (Stevens, J., concurring)). Thus, we do not address the legality of the seizure in this case because we reverse on other grounds. Our singular inquiry is whether Officer Cofer had a reasonable suspicion that appellant was armed and dangerous.

An officer may not automatically search a suspect in the course of a Terry stop, but he may frisk the suspect if he develops reasonable suspicion during the Terry stop to believe the particular person to be frisked is armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 117-18, 119 S.Ct. 484, 487-88, 142 L.Ed.2d 492 (1998). Among the factors relevant to this analysis 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." McCain v. Commonwealth, 275 Va. 546, 554, 659 S.E.2d 512, 517 (2008).

Appellant argues on appeal that his cooperation with the police, i.e., voluntarily approaching the officer and providing his identification, coupled with no aggressive behavior, militate against any concern the officer may have had due to the "open drug market" location. Appellant suggests that his nervousness, even with his refusal to answer Cofer's inquiry about weapons, without more, is insufficient to give the officer reason to believe he was armed and dangerous. Appellant further points out that prior to the pat down he exhibited no behavior that suggested he was armed and dangerous.

We first note that Officer Cofer observed appellant for eight to ten minutes loitering in front of the store, known to be the site of drug distribution and drug-related arrests. Cofer characterized the area as an "open market...