Welshman v. Com.

• Decision Date: 07 October 1997
• Docket Number: No. 0818-96-3,0818-96-3
• Court: Virginia Court of Appeals
• Parties: Gordon Wayne WELSHMAN, Sometimes Known as Gordon Wayne Welshman, Jr. v. COMMONWEALTH of Virginia. Record

Page 294

491 S.E.2d 294

25 Va.App. 599

Gordon Wayne WELSHMAN, Sometimes Known as Gordon Wayne Welshman, Jr. v. COMMONWEALTH of Virginia.

Record No. 0818-96-3.

Court of Appeals of Virginia Richmond.

Oct. 7, 1997.

Clinton R. Shaw, Jr., Lynchburg (Office of the Public Defender, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BENTON and ANNUNZIATA, JJ., and DUFF, Senior Judge.

ANNUNZIATA, Judge.

Following a bench trial, appellant, Gordon Wayne Welshman, Jr., was convicted of possession of cocaine with intent to distribute. On appeal, he contends that the trial court erred in denying his motion to suppress the cocaine and that the evidence is insufficient to support his conviction. We hold that appellant was unlawfully seized and that, as a consequence, the cocaine recovered as a result of his seizure should have been suppressed. Accordingly, we reverse his conviction.

I.

While conducting surveillance of the 2100 block of Main Street in the City of Lynchburg, Investigator Thomas observed two men conducting what he believed to be drug transactions in front of the residence at 2110 Main Street. The general area was known to the officers as an open air drug market, and the residence at 2110 Main Street was a reputed crack house. Thomas relayed his observation and a description of the two suspects to members of a narcotics strike force who were waiting in a staging area nearby.

During his surveillance, Thomas observed appellant standing among a group of eight other individuals on the sidewalk in front of the residence. Thomas testified that appellant had been standing near the residence for at least fifteen minutes, but that he had not been involved in the apparent drug dealing. Thomas further stated that appellant had no contact with the two men Thomas suspected of drug dealing and that appellant had done nothing "except stand there."

Officer Duff was one of four members of the strike force responding to Thomas' call. Thomas informed Duff that the two suspects had joined the group of individuals standing in front of the residence. Duff testified that, in addition to the group on the sidewalk, approximately three other individuals were seated in a van parked at the curb and four or five others occupied the front porch area of the residence. Duff knew the area was an open air drug market, he knew shots had been fired there in the past, and, on a previous occasion, Duff had seen a pellet gun in a mailbox located only a few feet from the group on the sidewalk.

Duff testified that:

[d]ue to the nature and reputation of the area and my experience with the area and, also, some of the people that I had observed there it was our decision to place all of the people that were on the sidewalk on the ground in a prone position momentarily for our safety and their safety.... We were going to secure the two target suspects and then make the scene secure, either by having people leave or making sure that there were no weapons with the people that decided to stay.

As he approached the scene, Duff ordered the individuals on the sidewalk, including appellant, to lie on the ground in a prone position and extend their arms. Duff testified that the officers would not have pursued anyone who chose to leave the scene other than the two suspects. He acknowledged, however, that no one left or was told they could leave.

Appellant immediately assumed a prone position as Duff ordered, but he kept his hands underneath his torso. Duff approached appellant, again ordering him to extend his arms. Appellant complied as Duff grabbed his arm and rolled him onto his right side. In search of a weapon, Duff found no weapons on the ground under appellant. Still concerned about his safety and the possibility of finding a weapon, Duff conducted a pat down search of appellant's waistline and of the left front of his pants. As a result of the search, Duff seized the cocaine used to support appellant's conviction. The trial court denied appellant's motion to suppress the cocaine, finding "that the police officers ... acted properly and had reasonable probability or reasonable basis to believe that the area involved was very dangerous; that it was a high crime area."

II.

The Commonwealth concedes that appellant was seized within the meaning of the Fourth Amendment when Officer Duff compelled him to lie face down on the ground and extend his arms. The Commonwealth further concedes that the police officers had no reason to suspect that appellant had been engaged in criminal activity prior to his seizure. The issue on appeal is whether appellant's detention was nevertheless justified under the Fourth Amendment.

Appellant contends that his seizure was unreasonable because the officers had no reason to suspect that he was engaged in criminal activity. The Commonwealth contends that a Fourth Amendment seizure may be justified on grounds other than probable cause or reasonable suspicion of criminal activity and that the officers' actions in this case "were appropriate to protect both themselves and the bystanders from the dangers involved in a narcotics arrest."

Although we find few circumstances under which Fourth Amendment seizures are justified in the absence of probable cause or reasonable suspicion of criminal activity, we disagree with appellant's contention that the absence of probable cause or reasonable suspicion of criminal activity renders a police-initiated detention unlawful per se. See Maryland v. Wilson, --- U.S. ----, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). In Wilson, the Supreme Court extended the rationale of Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (holding that a police officer may, as a matter of course, order the driver of a lawfully stopped car to exit his vehicle), and held that a police officer making a traffic stop may order a passenger to exit the car pending completion of the stop, even though the officer has no reason to suspect the passenger of criminal behavior. Wilson, --- U.S. at ----, 117 S.Ct. at 886. ¹ In Summers, the Supreme Court held that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." 452 U.S. at 705, 101 S.Ct. at 2595; see also Jones v. Commonwealth, 23 Va.App. 93, 98-99, 474 S.E.2d 825, 828 (1996). We further note that Fourth Amendment seizures, made in the absence of probable cause or reasonable suspicion of criminal activity, may be warranted under the community caretaking function of the police. See Commonwealth v. Waters, 20 Va.App. 285, 456 S.E.2d 527 (1995). In short, the absence of reasonable suspicion or probable cause to believe that appellant was engaged in criminal activity in the present case does not necessarily render appellant's seizure unlawful.

In support of its contention that appellant's seizure was lawful under the circumstances of this case, the Commonwealth relies, by analogy, on the seizures upheld in Wilson and Summers. We find, however, that the Commonwealth's analogy of the present case to Wilson and Summers is misplaced.

The touchstone of Fourth Amendment analysis is always "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Wilson, --- U.S. at ---- - ----, 117 S.Ct. at 884-85 (citations omitted); Summers, 452 U.S. at 699-700, 101 S.Ct. at 2592-93; Bethea v. Commonwealth, 14 Va.App. 474, 476, 419 S.E.2d 249, 250 (1992), aff'd, 245 Va. 416, 429 S.E.2d 211 (1993). Reasonableness under the Fourth Amendment is determined by balancing the public interest against the "individual's right to personal security free from arbitrary interference by law officers." Wilson, --- U.S. at ----, 117 S.Ct. at 885 (citations omitted); Summers, 452 U.S. at 701, 101 S.Ct. at 2593 (test is "to examine both the character of the official intrusion and its justification"); Bethea, 14 Va.App. at 476, 419 S.E.2d at 250.

Weighing the public interest at stake in automobile stops, the Wilson Court thought it " 'too plain for argument' " that officer safety is a " 'legitimate and weighty' " justification. Wilson, --- U.S. at ----, 117 S.Ct. at 885 (quoting Mimms, 434 U.S. at 110, 98 S.Ct. at 333). Noting the inherent danger to police officers which exists when effecting a traffic stop, the Court declined to distinguish the threat of danger to police officers posed by drivers and that posed by passengers. Wilson, --- U.S. at ----, 117 S.Ct. at 885.

It would seem that the possibility of a violent encounter stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop. And the motivation of a passenger to employ violence to prevent apprehension of such a crime is every bit as great as that of the driver.

Id. at ----, 117 S.Ct. at 886. The Court found that the public interest in officer safety would be furthered by denying vehicle passengers access to weapons potentially concealed in the vehicle's passenger compartment. Likewise, the Summers Court found officer safety to be material to its analysis.

[T]he execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and occupants is minimized if the officers routinely exercise unquestioned command of the situation.

Summers, 452 U.S. at 702-03, 101 S.Ct. at 2594. Other public interests at stake in Summers included the prevention of flight in the event that incriminating evidence was found, the facilitation of the orderly completion of the search and the preservation of evidence subject to the search. Id.

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