Welshman v. Com.

• Decision Date: 21 July 1998
• Docket Number: Record No. 0818-96-3.
• Citation: 28 Va. App. 20,502 S.E.2d 122
• Court: Virginia Court of Appeals
• Parties: Gordon Wayne WELSHMAN, s/k/a Gordon Wayne Welshman, Jr. v. COMMONWEALTH of Virginia.

502 S.E.2d 122

28 Va. App. 20

Gordon Wayne WELSHMAN, s/k/a Gordon Wayne Welshman, Jr. v. COMMONWEALTH of Virginia.

Record No. 0818-96-3.

Court of Appeals of Virginia, Richmond.

July 21, 1998.

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

Eugene Murphy, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and BAKER, BENTON, COLEMAN, WILLIS, ELDER, BRAY, ANNUNZIATA, OVERTON and BUMGARDNER, JJ.

BAKER, Judge.

Gordon Wayne Welshman (appellant) was convicted in a bench trial in the Circuit Court for the City of Lynchburg (trial court) for possession of cocaine with intent to distribute. On appeal, he contended the trial court erroneously denied his motion to suppress the cocaine and held the evidence sufficient to prove he intended to distribute the cocaine. A divided panel of this Court reversed and dismissed the conviction, holding the cocaine upon which his conviction was based was discovered as the result of an unreasonable seizure of his person, in violation of the Fourth Amendment. See Welshman v. Commonwealth, 25 Va.App. 599, 491 S.E.2d 294 (1997). Upon rehearing en banc, we hold the trial court properly denied appellant's motion to suppress and the evidence is sufficient to prove appellant intended to distribute the cocaine. Accordingly, we affirm his conviction.

During June 1995, Investigator Thomas of the Lynchburg Police Department conducted ongoing surveillance in the 2100 block of Main Street, which was known as an open-air drug market. Between January 1994 and August 11, 1995, the police "had [703] calls in the [2100] block of Main Street," 136 of which were for drug offenses. Sixty-eight of the drug offense calls directly involved the residence at 2110 Main Street, which was a reputed crack house. Police also received seventeen "shots fired" calls for that block during the same period.

On June 29, 1995, Investigator Thomas used binoculars to observe two individuals engaging in hand-to-hand transactions with drivers and pedestrians in the 2100 block of Main Street. He saw those two individuals carry white chunks of what appeared to be crack cocaine in their hands and exchange the chunks for cash. He believed the two were selling cocaine. Appellant, along with about seven other people, had been standing in front of the residence at 2110 Main Street for at least fifteen minutes, but appellant was not visibly involved in any of the apparent drug transactions.

Investigator Thomas radioed his observations to a team of four officers, including Officer Duff, who approached the scene to apprehend the two individuals suspected of selling cocaine. It was about 8:25 p.m. and "was just barely light outside." When Investigator Thomas radioed the team, the two target individuals were "in the middle of the street ... making a transaction" with a "stopped ... vehicle." However, "when the officers began approaching in their vehicle[,] both individuals ran back into [the] little group where [appellant] was." This group was on the sidewalk area in front of 2110 Main Street, between the front porch and a van with its doors open parked in front of the residence. Four or five people, "male and female and some children," were on the front porch of the residence, and about three people were inside the van. In addition, "[t]here were other pedestrians within the block." Investigator Thomas testified that the officers "always want to outnumber the individuals we're getting out with, but in some cases we can't do it." The officers "elected to go in with what they had," but upon arriving at the scene, Officer Duff called for additional officers.

"Due to the nature and reputation of the area and [Officer Duff's] experience with the area, and, also some of the people that [he] had observed there," he decided to direct everyone on the sidewalk at the scene to lie "in a prone position momentarily" for the safety of the officers and the civilians. Duff also wanted to apprehend the target subjects before they had a chance to dispose of any cocaine they may have possessed. The officers intended to secure the two target individuals and the scene "either by having people leave or making sure that ... the people [who] decided to stay" had no weapons. Duff previously had seen a pellet gun in the mailbox of the residence, which was located only three to four feet from where appellant was standing, and in the possession of one of the occupants of the residence. He also was aware of several prior "shots fired" calls involving that residence and knew police previously had seen an individual firing a weapon in front of that residence. The 2100 block "was known as a high crime, very volatile area."

As the officers were exiting the car, Officer Duff told everyone on the sidewalk, including appellant, to get on the ground and extend their arms out from their bodies. He said he would have allowed anyone other than the target individuals to leave the scene, but he did not inform them of this option. Everyone complied with Officer Duff's directive. While other officers secured the target subjects, Officer Duff noticed appellant had not extended his arms as directed and instead had kept them under his torso. Fearing appellant was reaching for a weapon, Duff "immediately went to [appellant]" and again told him to extend his arms. As Duff began to roll appellant over, appellant complied by extending his arms. Duff saw nothing in the area where appellant had been lying but was concerned about the officers' safety and frisked appellant for weapons. When he patted the exterior of appellant's left front pants pocket, he detected an object that "felt like several smaller objects that were hard and it felt like ... they were wrapped in some type of baggy-type wrap." Without manipulating the contents of appellant's pocket, Duff immediately concluded the objects were crack cocaine. He then pulled from appellant's pocket a piece of a brown paper bag containing five or six chunks of crack cocaine weighing 1.44 grams. Other than appellant and the target individuals, police did not frisk anyone else at the scene.

In a search of appellant incident to arrest, the officers found $150 in cash, comprised of five $20 bills and one $50 bill. They found no devices for ingesting cocaine in appellant's possession. After Mirandizing appellant, Officer Duff asked him if he smoked crack cocaine. Appellant said, "Do I look like I smoke cocaine?" When Duff replied, "No," appellant said, "All right then." Appellant said he was not holding the cocaine for anyone else and denied having an intent to sell it.

At trial, Officer Duff qualified as an expert and testified appellant's possession of 1.44 grams of crack cocaine was inconsistent with possession for personal use. He testified that crack cocaine was commonly sold in the Lynchburg area in $20 and $40 rocks and that one gram of cocaine would cost $150 to $175. Investigator Thomas testified that, in his experience, people selling cocaine commonly carry several rocks in pieces of brown paper or small pieces of cellophane, plastic wrappers or plastic bags. Purchasers, by contrast, he testified, "usually just get the rock and leave."

Appellant moved to suppress, contending the seizure of his person and the subsequent pat-down search and removal of the cocaine from his pocket violated the United States and Virginia Constitutions. The trial court denied the motion to suppress, finding "the police officers in the case 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." As a result, he held the officers' "actions were reasonable."

At trial, appellant moved to strike the Commonwealth's evidence, but the trial court denied the motion and convicted appellant of possessing cocaine with intent to distribute. The trial court "[drew] the inference based on [appellant's] answers [to] what the police officer asked him" that "[appellant] was not a [cocaine] user."

Motion to Suppress

In reviewing a trial court's denial of a motion to suppress, "the burden is upon [appellant] to show that this ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error." Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). Determining whether police may make a warrantless search or seizure involves issues of both law and fact and is reviewed de novo on appeal. See Ornelas v. United States, 517 U.S. 690, 696-97, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (articulating standard for reviewing determinations of reasonable suspicion and probable cause). However, "[i]n performing such analysis, 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) (citing Ornelas, 517 U.S. at 699, 116 S.Ct. 1657).

Detention

The Commonwealth concedes appellant was seized within the meaning of the Fourth Amendment when Officer Duff ordered him to lie face down on the ground and extend his arms. The Commonwealth also concedes the officers had no reason to believe appellant had been engaged in criminal activity. The question on appeal, therefore, is whether the officers' detention of appellant nevertheless was constitutionally justified. We hold that it was.

"The [F]ourth [A]mendment does not proscribe all seizures, only those that are `unreasonable.' Whether a seizure is unreasonable is determined by balancing the individual's right to be free from arbitrary government intrusions against society's countervailing interest in preventing or detecting crime and in protecting its law enforcement officers." Bethea v. Commonwealth, 14 Va.App. 474,...