Ward v. Commonwealth, Record No. 2079-08-1 (Va. App. 12/29/2009)

Decision Date29 December 2009
Docket NumberRecord No. 2079-08-1.
CourtVirginia Court of Appeals
PartiesERIC D. WARD v. COMMONWEALTH OF VIRGINIA.

Appeal from the Circuit Court of the City of Suffolk, Westbrook J. Parker, Judge.

Jean Veness, Assistant Public Defender, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: Judges Humphreys, McClanahan and Senior Judge Willis.

MEMORANDUM OPINION*

JUDGE ROBERT J. HUMPHREYS.

Eric D. Ward ("Ward") appeals his conviction for possession of cocaine with intent to distribute, in violation of Code § 18.2-248. On appeal, Ward contends that the trial court erred in denying his motion to suppress evidence of a crack cocaine cookie block found beneath his seat and his subsequent confession at the police precinct. Ward argues that his seizure was invalid under the Fourth Amendment because the police lacked a reasonable, articulable suspicion to believe he was engaged in criminal activity, rendering the evidence obtained as a result of that seizure inadmissible at trial. For the following reasons, we disagree and affirm.

Ward argues that, at the time he was asked to place his hands on the dashboard of the vehicle, the police lacked a reasonable, articulable suspicion to believe he was engaged in criminal activity. Thus, Ward contends that this seizure was invalid under the Fourth Amendment and that the trial court erred by not suppressing both the cocaine found in the vehicle and Ward's subsequent confession. We disagree.

"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.'" Thompson v. Commonwealth, 54 Va. App. 1, 5, 675 S.E.2d 832, 834 (2009) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc)). 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." Thompson, 54 Va. App. at 6, 675 S.E.2d at 834 (quoting McGee, 25 Va. App. at 198, 487 S.E.2d at 261). "`Similarly, the question whether a person has been seized in violation of the Fourth Amendment is reviewed de novo on appeal.'" Andrews v. Commonwealth, 37 Va. App. 479, 488, 559 S.E.2d 401, 406 (2002) (quoting Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000)).

"The Fourth Amendment prohibits only unreasonable searches and seizures." Thompson, 54 Va. App. at 7, 675 S.E.2d at 834. "The validity of a seizure `turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, and not on the officer's actual state of mind at the time the challenged action was taken.'" Welshman v. Commonwealth, 28 Va. App. 20, 30, 502 S.E.2d 122, 127 (1998) (quoting Maryland v. Macon, 472 U.S. 463, 470-71 (1985)). "[P]olice officers may stop a person for the purpose of investigating possible criminal behavior even though no probable cause exists for an arrest." McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 516 (2008) (citing Terry v. Ohio, 392 U.S. 1, 22 (1968)). Such a stop is valid under the Fourth Amendment, provided "the officer has a reasonable, articulable suspicion that criminal activity may be afoot." Id. (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). "`Reasonable suspicion is more than a mere hunch but less than proof of wrongdoing by a preponderance of the evidence.'" Middlebrooks v. Commonwealth, 52 Va. App. 469, 479, 664 S.E.2d 499, 504 (2008) (quoting Commonwealth v. Thomas, 23 Va. App. 598, 610-11, 478 S.E.2d 715, 721 (1996)).

In determining whether or not reasonable suspicion exists, "`a court must consider the totality of the circumstances,'" id. (quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003)), including "`the `characteristics of the area' where the stops occurs, the time of the stop, whether late at night or not, as well as any suspicious conduct of the person accosted,'" Thomas, 23 Va. App. at 611, 478 S.E.2d at 721 (emphasis added) (quoting Smith v. Commonwealth, 12 Va. App. 1100, 1103, 407 S.E.2d 49, 51-52 (1991)). Viewing the totality of the circumstances in this case, we hold that Officer Aaron Huddleseon ("Huddleseon") had a reasonable, articulable suspicion to believe that criminal activity was afoot and, therefore, Huddleseon's seizure of Ward was valid.

"`A police officer may stop the driver or occupants of an automobile for investigatory purposes if the officer has a reasonable articulable suspicion, based on objective facts, that the individual is involved in criminal activity.'" Harris v. Commonwealth, 27 Va. App. 554, 562, 500 S.E.2d 257, 261 (1998) (emphasis added) (quoting Jones v. Commonwealth, 24 Va. App. 519, 522, 484 S.E.2d 125, 126 (1997)). Here, Huddleseon received a report that a vehicle with expired Alabama tags was driving recklessly up and down the 6200 block of Freeman Avenue, a high-crime, high-drug area of the City of Suffolk. Shortly after receiving the report, Huddleseon observed a vehicle matching the description, parked illegally on the left side of the road. Ward was a passenger in the vehicle. Huddleseon also observed two men crouched by the passenger window of the vehicle. Huddleseon testified that, based on his training and experience, this sort of behavior was consistent with "drug transactions, open market...

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