Pierson v. Commonwealth , 16 Va. App. 202 ( 1993 )

Opinion

BRAY, J.

Brian Scott Pierson (defendant) was convicted of possession of cocaine and sentenced to three years imprisonment. Defendant contends on appeal that the court erred in overruling his motion to suppress evidence seized from his automobile. We disagree and affirm the decision of the trial court.

Upon appeal from a trial court’s denial of a motion to suppress, we must view the evidence in the light most favorable to the prevailing party, granting to it all reasonable inferences fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991); Reynolds v. Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 663 (1990). The findings of the trial court will not be disturbed unless “plainly wrong,” Grimstead, 12 Va. App. at 1067, 407 S.E.2d at 48, and the burden is upon the appellant to show that the denial constituted reversible error. Reynolds, 9 Va. App. at 436, 388 S.E.2d at 663.

The record discloses that, at approximately 1:00 a.m. on July 15, 1989, Officers Joseph Pennypacker (Pennypacker) and John Tosloskie (Tosloskie) observed defendant, accompanied by a passenger, operating his automobile on Atlantic Avenue in the City of Virginia Beach. Pennypacker noticed that defendant ‘ ‘had a can of beer in his hand’ ’ and asked him to ‘ ‘pull over’ ’ to permit the issuance of a summons for the “open container violation.” Before defendant exited his vehicle, Tosloskie observed him “hand . . . something” to his passenger, Stacey Wolcott (Wolcott), who first “hid[] it by her left leg,” and then “brought it up along her body and right under her left armpit,” “crossing] her arms.”

Although Tosloskie “had no idea what the object was,” he became “suspicious of it by [Wolcott’s] actions” and inquired, “What do you have there?” Wolcott replied that she did not “have anything,” but “at that time a velour bag fell out from under her arm.” Tosloskie, “concerned” that the bag contained “a weapon of some sort,” opened the passenger door of the vehicle and “picked up” the black, opaque bag, then located “right on the edge of the doorway where the door closes.” The “drawstrings” at the “top of the bag” were open and, “the very second that [he] picked it up,” Tosloskie “could see that it contained Baggies ... [of] white powder,” then “immediately” suspected and later proven to be cocaine.¹

In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court approved “a protective search for weapons in the absence of probable cause to arrest . . . when [a police officer] possesses an articulable suspicion that an individual is armed and dangerous.” Michigan v. Long, 463 U.S. 1032, 1034 (1983); Lansdown v. Commonwealth, 226 Va. 204, 211-12, 308 S.E.2d 106, 111 (1983), cert. denied, 465 U.S. 1104 (1984). Recognizing the “ ‘inordinate risk confronting an officer as he approaches a person seated in an automobile,’ ” Long, 463 U.S. at 1048 (quoting Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977)), the Court has extended such protective searches “beyond the person,” including “areas” of the “passenger compartment of an automobile in which a weapon may be placed or hidden.” Id. at 1049-50; Glover v. Commonwealth, 3 Va. App. 152, 156, 348 S.E.2d 434, 437-38 (1986), aff’d, 236 Va. 1, 372 S.E.2d 134 (1988); see also Hatcher v. Commonwealth, 14 Va. App. 487, 490-91, 419 S.E.2d 256, 258-59 (1992). If the officer “should . . . discover contraband other than weapons” during this investigation, “he . . . cannot be required to ignore [it], and the Fourth Amendment does not require its suppression in such circumstances.” Long, 463 U.S. at 1050.

When reviewing such “protective conduct” by an officer, the “ ‘[t]ouchstone of our analysis ... is always the reasonableness in all circumstances of the particular governmental intrusion of a citizen’s personal security.’ ” Id. at 1051 (quoting Mimms, 434 U.S. at 108-09); see also Hatcher, 14 Va. App. at 490, 419 S.E.2d at 259. There is “ ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’ ” Taylor v. Commonwealth, 10 Va. App. 260, 264, 391 S.E.2d 592, 594 (1990) (quoting Terry, 392 U.S. at 21). “ ‘[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ ” Long, 463 U.S. at 1050 (quoting Terry, 392 U.S. at 27).

Here, during a lawful stop of defendant’s vehicle, Officer Tosloskie observed suspicious and furtive conduct under circumstances that prompted understandable concern for his security, and he acted reasonably and appropriately to minimize the threat. The investigative activity, which revealed the cocaine, was “not a ‘serious intrusion upon the sanctity’ ” of anyone’s person, but caused “at most a mere inconvenience,” in furtherance of a “legitimate and weighty” safety interest. Mimms, 434 U.S. at 110-11 (quoting Terry, 392 U.S. at 17). When measured against the potential of harm both to Tosloskie and the other officer, any disturbance of defendant’s “privacy rights” was “de minimis” and clearly reasonable and permissible under the circumstances. Hatcher, 14 Va. App. at 490-91, 419 S.E.2d at 258-59.

We, therefore, find that the cocaine was seized as the product of a reasonable protective search, incident to a lawful stop, and, accordingly, affirm the decision of the trial court.

Affirmed.

Willis, J., concurred.

1 Tosloskie was trained in narcotics identification and also had “extensive experience ... on the street” with drug related evidence and offenses.