Woodson v. Com., 0743-90-2

• Decision Date: 23 June 1992
• Docket Number: No. 0743-90-2,0743-90-2
• Citation: 14 Va.App. 787,421 S.E.2d 1
• Parties: Jimmie Hugene WOODSON, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 1

421 S.E.2d 1

14 Va.App. 787

Jimmie Hugene WOODSON, Jr. v. COMMONWEALTH of Virginia.

Record No. 0743-90-2.

Court of Appeals of Virginia.

June 23, 1992.

John B. Mann, Richmond (Levit & Mann, on brief), for appellant.

Robert Q. Harris, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BENTON and DUFF, JJ.

KOONTZ, Chief Judge.

Jimmie Hugene Woodson, Jr., appellant, was convicted in a jury trial of possession of cocaine, possession of marijuana and obstruction of justice, and was sentenced to a total of two years and thirty days. On appeal, he contends that (1) the trial court erred in refusing to suppress the results of the search; (2) insufficient evidence supported his conviction for possession of cocaine; and (3) insufficient evidence supported his conviction for obstruction of justice. We affirm the convictions.

On November 24, 1988, police officers executed a search warrant for drugs at 1427 North 29th Street in the City of Richmond. During the search, Detective D.R. Carter was stationed at the front door of the house "to make sure no one left or no one came in." The police were still looking for another individual connected with the search warrant being executed at the dwelling.

From his post, Detective Carter observed a car drive by the house "at a very slow pace" and stop a short distance down the street. As the car passed, at least one occupant of the car looked in Carter's direction. After the car stopped, one passenger, appellant's father, left the car and walked toward the house. Detective Carter recognized this person as Jimmie Woodson, Sr., a former police officer who had been "convicted of drugs" and forced to leave the police department. When Woodson, Sr. got within twelve feet of the house, Carter called his name; however, Woodson Sr. turned and walked away from the house but did not return to the car.

Detective Carter then walked to the parked car, with his gun in his right hand down by his side. He was not in uniform, but wore a police badge on a neck chain. Carter noticed three individuals in the car. He approached the driver's side and announced, "Police officer. Gentlemen, put your hands where I can see them." Two passengers immediately complied but the driver, Woodson, did not. Woodson was looking at Carter when he announced his presence. Woodson then "turned to his right with his body and went down to his right side." At that time, Carter opened the car door and saw that Woodson had a gun in his right hand.

Carter grabbed Woodson's wrist and, at the same time, placed his police revolver under Woodson's neck. Carter told Woodson to drop his weapon, and the gun fell to the floor. Detective Carter called for assistance and continued to struggle with Woodson. Woodson was trying to put his hand in his pocket. Carter testified that Woodson was "going back towards the floor" when Detective Brunson approached the passenger side of the car. Brunson seized the gun, a loaded chrome-plated .357 revolver.

Additional officers arrived to help restrain Woodson. Once he was handcuffed, Woodson stated, "Okay. I am an addict. You have got me. It is in my right front pocket. I am an addict." A small "ziploc" plastic bag containing a folded twenty dollar bill with 1.57 grams of cocaine inside was found in Woodson's pocket. The officers also found a hand-rolled marijuana cigarette and a cellophane wrapper containing marijuana in Woodson's shirt pocket.

Woodson first challenges the trial court's denial of his motion to suppress the evidence seized during the search of his person. The Commonwealth contends that Woodson's failure to make the transcript of the pre-trial suppression hearing part of the record on appeal bars our review of this issue.

Prior to trial, Woodson filed a motion to suppress the evidence seized after his arrest. Following a hearing, the trial court denied the motion. At trial, Woodson renewed his motion at the close of the Commonwealth's case. The record reflects that the trial court and defense counsel discussed the evidence presented at the pre-trial suppression hearing and at trial, noting their differing recollections of the evidence presented at the pre-trial hearing. The trial court and defense counsel also acknowledged that the evidence presented at the pre-trial hearing differed, in some respects, to that presented at trial. The court denied the renewed motion.

Where a transcript is not part of the record on appeal, we may reach the merits of the case if the record "is sufficient in the absence of the transcript to determine the merits of the appellant's allegations." Turner v. Commonwealth, 2 Va.App. 96, 99, 341 S.E.2d 400, 402 (1986); see also Bunton v. Commonwealth, 6 Va.App. 557, 561, 370 S.E.2d 470, 472 (1988). The Commonwealth argues that we may not reach the merits here because the trial court relied upon its earlier ruling and disagreed with defense counsel as to the evidence from the suppression hearing. We disagree with the Commonwealth's argument. Upon review of the record, we find that the pre-trial hearing transcript is not indispensable to our resolution of the suppression issue because the record which contains the trial transcript is sufficient to determine the merits of appellant's challenge.

In order to determine whether the evidence should have been suppressed, we must first decide whether Woodson was "seized" within the meaning of the fourth amendment's prohibition against unreasonable search and seizure. A seizure occurs when the "circumstances ... amount to a show of official authority such that 'a reasonable person would have believed that he was not free to leave.' " Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)); see also Goodwin v. Commonwealth, 11 Va.App. 363, 365, 398 S.E.2d 690, 691 (1990). Here, Detective Carter with his gun in his hand approached the car, announced that he was a police officer, and ordered the occupants of the car to "put your hands where I can see them." The officer's announcement of official authority coupled with his subsequent command for the parties to do as they were told would certainly indicate to a reasonable person that he or she was not free to disregard the officer's request or otherwise carry on with his or her business. ¹ Indeed, Carter's command effectively prevented the occupants from leaving, thereby restricting their freedom of movement. The order to "put your hands where I can see them," in this context, amounts to a significant restraint on the individual's freedom of movement sufficient to invoke the protections of the fourth amendment. Therefore, we find that a reasonable person would conclude, from these circumstances, that he or she was not free to leave the officer's presence. ² See Moss v Commonwealth, 7 Va.App. 305, 307-08, 373 S.E.2d 170, 172 (1988) (holding that the manner in which a uniformed officer confronted defendant with a blinding flashlight amounted to a seizure).

Having found that Woodson was seized by Carter's announcement and show of authority, we must next determine whether Carter had adequate grounds to "stop" Woodson. ³ In order to justify the stop, the fourth amendment requires that the officer have a " 'reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.' " Id. 7 Va.App. at 308, 373 S.E.2d at 172 (quoting Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979)). Whether an officer entertained the requisite suspicion to justify the stop is an "objective assessment." Murphy v. Commonwealth, 9 Va.App. 139, 144, 384 S.E.2d 125, 128 (1989). We must view "the totality of the circumstances and view those facts objectively through the eyes of a reasonable police officer with the knowledge, training, and experience of the investigating officer." Id. An unparticularized suspicion or hunch will not satisfy the requirements of the fourth amendment. Id. (citing Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980)). Upon review of the record, we find that the evidence was sufficient to support a reasonable suspicion that Woodson was involved in criminal activity.

At the time the search was being conducted at the house, the police were still looking for another individual connected with the search warrant being executed at that house. Detective Carter testified that he saw the car move very slowly by the house and stop a short distance down the street. As the car passed, Carter saw at least one of the occupants look in his direction. Carter recognized one of the occupants of the car as Woodson's father, who was known for his prior involvement with drugs. Woodson's father walked up to the house but, when Carter called out to him, he walked away and did not return to the car. Any one of these circumstances might be sheer coincidence and not justify further investigation. However, when viewed together, these facts provide an objective basis for Detective Carter's suspicion that an occupant of the car might be connected with the drug activity associated with the house. ⁴

"The fourth amendment does not proscribe all seizures, only 'unreasonable' seizures." Bethea v. Commonwealth, 14 Va.App. 474, 476, 419 S.E.2d 249, 250 (1992) (en banc) (citing Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968)). In Bethea, we recently held that an officer's request or directive for a passenger to step out of a lawfully detained vehicle was a reasonable seizure under the fourth amendment. In doing so, we explained the balancing test to be used in determining whether a seizure meets the fourth amendment's standard of reasonableness.

Whether a seizure is unreasonable is determined by balancing the individual's right to be free from arbitrary governmental intrusion against society's...