Wells v. Com.

• Decision Date: 05 July 1988
• Docket Number: No. 1029-86-2,1029-86-2
• Citation: 6 Va.App. 541,371 S.E.2d 19
• Parties: Dwight Olef WELLS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 19

371 S.E.2d 19

6 Va.App. 541

Dwight Olef WELLS v. COMMONWEALTH of Virginia.

Record No. 1029-86-2.

Court of Appeals of Virginia.

July 5, 1988.

R. Wayne Dawson, Richmond, for appellant.

Robert B. Condon, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, COLE and COLEMAN, JJ.

COLE, Judge.

The appellant, Dwight Olef Wells, was convicted in a jury trial of four robberies and four charges of use of a firearm in the commission of the robberies. On appeal, he contends that the trial court erred in denying his motion to suppress certain items seized in an allegedly illegal search of his automobile.

I.

On December 28, 1985, at approximately 6:15 p.m., Debbie Watson, an employee of the Piece Goods Shop, a business located at 9051 Broad Street in Henrico County, was robbed. She described the robber as a black male using a handgun and wearing a ski mask, a navy blue jacket, jeans and white sneakers. About nine minutes later, an employee of the Hair Cuttery, another business establishment located at 8906 Broad Street in Henrico County, was robbed. She described the robber as a black male using a handgun. Felicia Anderson, another Hair Cuttery employee, was in the parking lot behind the business when she saw a black male run past her heading toward the Golden Skillet Restaurant located at 8701 Broad Street. At about 6:30 p.m., the employees of Golden Skillet Restaurant were robbed. They described the robber as a black male using a handgun and wearing a ski mask, dark jacket, jeans and white tennis shoes.

Patrolman R.J. Smith, Sr., a ten year veteran of the Henrico County police department, was on routine patrol in the immediate area. At 6:16 p.m., he received a radio call reporting that the Piece Goods Shop had been robbed. Although not assigned to the case, Smith proceeded to the area of the Piece Goods Shop and while en route, at 6:25 p.m., he received a report of the Hair Cuttery armed robbery. At this point in time, Smith knew from the radio reports that the suspect was a black male who had used a mask and a handgun in the robberies, but no report was received concerning use of a motor vehicle. Believing that the robber might be heading west toward another shopping center on Broad Street, Smith continued to patrol to the west on Broad Street, the major thoroughfare in the area. Not seeing anything suspicious, he turned back and proceeded east on Broad Street.

At 6:35 p.m., when he was approximately twenty seconds from the Golden Skillet Restaurant, Smith received a radio dispatch telling of the armed robbery there. The Golden Skillet Restaurant is located at the southwest corner of Skipwith Road and Broad Street. A Shoney's Restaurant is located at the southeast corner of that intersection. Smith, driving east on Broad Street, proceeded past the Golden Skillet Restaurant and Skipwith Road when a vehicle suddenly pulled out of the Shoney's restaurant parking lot, in front of his vehicle. Smith had to brake abruptly to avoid a collision.

The driver of the vehicle, a black male, stared at Officer Smith and then crossed over three lanes of traffic to the inside lane nearest the median strip and proceeded east. Smith followed. At the next intersection, three-tenths of a mile east, the vehicle pulled into the left turn lane. Smith, in the center lane, pulled adjacent to the vehicle and looked at the driver. Smith noticed the driver "jerk his head in his [Smith's] direction three times." When Officer Smith stretched his head in order to observe the driver's license number, "the driver slumped down in the seat to where his head was pretty well even with the steering wheel."

When the advance left turn light came on, the driver turned left, maintaining the "slumped down" position. Smith notified radio communication that he was following a suspicious black male driving a dark green Pinto. Smith activated his red lights to clear the traffic at the intersection and proceeded after the vehicle. He caught up with it four-tenths of a mile away. Officer Smith then reactivated his red lights and used his siren to signal the driver to stop. The vehicle moved from the right lane to the left lane and continued without stopping at about forty-five miles per hour. Smith radioed for a back-up vehicle, advising that the vehicle did not stop. Approaching an intersection, the vehicle turned left and began accelerating rapidly. The driver passed a driveway into a public high school, but turned right into another driveway marked "Do Not Enter" and "One Way," and came to an abrupt stop. Smith pulled up next to the vehicle. The driver, later identified by Smith to be the defendant, Dwight Olef Wells, hurriedly exited the vehicle. He was wearing jeans and white tennis shoes and approached Smith's vehicle at a quick jog. Smith got out of his vehicle, drew his gun, and ordered Wells to stop. Wells stated, "I didn't do it." Smith got him to the rear of his (Wells') vehicle and commenced frisking him for weapons.

Officer Smith did not complete his Terry frisk of Wells for weapons because as he was "patting-down" Wells' legs, Wells ran and escaped the scene on foot. Smith then went to Wells' vehicle to ascertain whether any other person might still be present. Without entering the vehicle, he shined his flashlight into the interior where he observed money thrown about the right front passenger seat along with a check payable to Piece Goods Shop dated that day, a bag, a dark jacket and a revolver. Smith did not enter the vehicle.

After the inspection of Wells' vehicle, Smith pursued Wells on foot. Sgt. J.W. Pearce, responding to radio communications, came upon the scene and found two abandoned vehicles, including Smith's vehicle. Not knowing where Officer Smith was, he checked both vehicles. With his flashlight, he looked into the interior of Wells' car and saw the same items that Smith had seen, including the handgun located on the floor on the passenger side of the vehicle. He opened the door, looked at the gun, observed that it was a toy, but did not further enter the vehicle.

While the police were still at the scene, Wells returned in another vehicle driven by his girlfriend. He claimed ownership of the green Ford Pinto. His statement to the officers was that earlier he had been knocked out by an attacker who then stole his car; when he woke up, he was in the woods in the area and he went to a nearby home to call the police. Officer Smith was recalled to the scene. He identified Wells as the driver of the vehicle he had stopped earlier, and Wells was placed under arrest for the three robberies.

Wells' vehicle was confiscated and towed to a police impound lot. A search warrant was later obtained and executed, disclosing $1,151.50 in currency, four checks made payable to the Piece Goods Shop dated December 28, 1986, a ski mask, a dark navy blue jacket, a pair of gloves and a fake handgun.

At trial, in addition to Officer Smith's positive identification of Wells as the operator of the vehicle, an expert testified that fingerprints taken from the back of the car where Wells was positioned to be frisked conclusively matched Wells' known prints. Employees of the stores where the robberies occurred also identified Wells as the robber.

II.

Wells filed a motion to suppress all of the evidence that was seized as a result of the search of his vehicle pursuant to the search warrant, maintaining that the search was illegal and violated his rights against unreasonable searches and seizures guaranteed under the fourth and fourteenth amendments of the United States Constitution and article I, § 10 of the Virginia Constitution. ¹ At the suppression hearing, Wells denied being the driver of the vehicle, but asserted that as the registered owner he had a reasonable expectation of privacy in the vehicle which gave him standing to challenge the stop and search of the vehicle. Further, he argued that the vehicle was stopped illegally and that all of the evidence secured thereafter should have been suppressed as fruits of the illegal stop.

At the hearing on the motion the trial court noted that it would have to determine whether Wells had a possessory interest in the items seized and whether he had standing to challenge the stopping of his vehicle. Investigator Jan Stem of the Henrico County police department, who had prepared the affidavit to obtain the search warrant, testified that he arrived at the location of the vehicle within minutes after its driver fled. When Wells arrived shortly thereafter, he told Stem that he owned the Pinto, that he had been beaten, and the car stolen. Stem's affidavit, which was introduced as evidence, contained a statement of the facts as disclosed by both Officer Smith and Wells.

On the basis of Wells' testimony, the trial court ruled that he had no standing to challenge the stopping of the vehicle because if it were stolen, he did not have possession or control of it, and therefore had no expectation of privacy in the vehicle. ² Wells was subsequently convicted by a jury of four counts of robbery and four counts of use of a firearm in the commission of a felony, and was sentenced to forty-eight years in prison.

We limited Wells' appeal to whether the trial court erred in denying his motion to suppress the items seized in the vehicle. We address: (1) the court's ruling that he had no expectation of privacy in his vehicle, which he claims was stolen but which the Commonwealth contends he was operating when stopped; (2) whether the police officer had an articulable and reasonable suspicion that the operator of the vehicle was involved in criminal activity in order to justify an investigatory stop, and whether he had a reasonable basis to conclude that the operator was armed and dangerous, justifying a pat-down for weapons; (3) whether the intrusion by the police officer's shining his flashlight into the vehicle to observe its contents constituted an illegal search;...