Amy Michelle Nelson v. Commonwealth , 24 Va. App. 823 ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
AMY MICHELLE NELSON
OPINION
v. Record No. 1623-96-1 BY JUDGE JOSEPH E. BAKER
JUNE 3, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Charles P. Tench (Jones, Blechman, Woltz &
Kelly, P.C., on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Amy Michelle Nelson (appellant) appeals from her bench trial
conviction by the Circuit Court of the City of Newport News
(trial court) for possession of cocaine in violation of Code
§ 18.2-250. She contends that the cocaine was discovered during
an unlawful search of her person. The sole issue presented is
whether the trial court erred in refusing to suppress the cocaine
evidence discovered as a result of an anticipated pat-down search
of appellant. Finding no error, we affirm the judgment of the
trial court.
In reviewing a trial court's denial of a motion to suppress,
"[t]he burden is upon [the 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). We
"review findings of historical fact only for clear error and
. . . give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers." Ornelas v.
United States, 116 S. Ct., 1657, 1663 (1996). We review de novo
the ultimate questions of reasonable suspicion and probable
cause. See id.
Viewed accordingly, the record reveals that at approximately
10:34 p.m. on August 2, 1995, Officers Lee Ann McGraw and Peter
Edgette of the Newport News Police Department were dispatched to
208 Nina Court to investigate a possible burglary in progress at
1
210 Nina Court. When the officers arrived at 208 Nina Court,
the neighbor told them that she had observed a black female
wearing a black skirt and multi-colored top leaving 210 Nina
Court and walking toward Colony Road. The neighbor explained
that she suspected a burglary because the residents of 210 Nina
Court were not at home and she had never before seen this person
leaving the 210 Nina Court address.
Officers McGraw and Edgette, in separate vehicles, drove
toward Colony Road and observed appellant, a black female dressed
exactly as the neighbor described. Appellant was carrying an
eight-inch straightened piece of a coat hanger which she laid on
the curb as the officers approached her. She was agitated and
sweating profusely. In police uniforms, the officers approached
1
A neighbor who lived at 208 Nina Court had called in the
burglary information.
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appellant and asked for identification. She said that she had
none. Appellant told the officers that she was walking toward
her home in Courthouse Green; however, she was not traveling
toward the stated destination. Appellant's statements became
increasingly confusing and inconsistent as she attempted to
explain her actions to the officers.
After appellant made the confusing and inconsistent
statements, the officers decided to further investigate the
burglary complaint. Intending to place appellant in the police
patrol car as they completed their investigation, Officer McGraw
advised appellant to place her hands on the rear of the patrol
car. McGraw intended to conduct a pat-down search for weapons.
Edgette escorted appellant to the car where, instead of complying
with McGraw's direction, appellant moved her right hand to her
waistband and threw the complained of evidence onto the ground.
Appellant then kicked the item across the street. The officers
placed appellant in the car and retrieved the item, which proved
to be a silver metal stem that contained cocaine.
Thereafter, a white male wearing only underwear shorts
approached the scene. The man had a strong odor of alcohol about
him, and Officer Edgette concluded the man was intoxicated. The
man had no identification about his person. He stated that he
was the owner of 210 Nina Court, that no burglary had taken place
there, and that appellant had been playing cards with him.
At trial, appellant conceded that the officers had a right
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to "momentarily detain [her]." The record clearly supports their
action. See Terry v. Ohio, 392 U.S. 1 (1968) (a police officer
may in appropriate circumstances and in an appropriate manner
approach a person for purposes of investigating possible criminal
behavior even though there is no probable cause to make an
arrest). Assessing the totality of the circumstances, the record
shows that the officers had a particularized and objective basis
for suspecting that appellant may have been engaged in criminal
activity. See Leeth v. Commonwealth, 223 Va. 335, 340, 288
S.E.2d 475, 478 (1982). Once a suspect has been properly
detained, a police officer may conduct a limited pat-down search
for weapons if the officer reasonably believes that the suspect
may be armed. Lansdown v. Commonwealth, 226 Va. 204, 211, 308
S.E.2d 106, 111 (1983), cert. denied, 465 U.S. 1104 (1984).
The record establishes that the officers were investigating
a report that a burglary had taken place at the address from
which appellant had been seen exiting. Burglary is a felony that
clearly has the potential for or is accompanied by violence. See
Wayne R. LeFave, Search and Seizure, § 9.5(a) at 255 (3d ed.
1996). The offender is subject to a substantial penitentiary
term. See Code §§ 18.2-89, 18.2-10. The character of the
offense is a circumstance which the investigating officer may
consider when determining what safety precautions to take.
Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87
(1987); see also Terry, 392 U.S. at 28. Where burglary is the
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crime for which the suspect is lawfully detained, it is not
unreasonable for the investigating officer to conduct a pat-down
search to assure his or her safety as the investigation
continues. 2
Whether a Fourth Amendment violation has occurred turns on
an objective assessment of the officer's actions in light of the
facts and circumstances confronting him or her at the time and
not on the officer's actual state of mind at the time the
challenged action was taken. Maryland v. Macon, 472 U.S. 463,
470-71 (1985); see also Limonja v. Commonwealth, 8 Va. App. 532,
538, 383 S.E.2d 476, 480 (1989) (en banc), cert. denied, 495 U.S.
905 (1990). Here, the record reveals that the police received
information that a burglary had been or was occurring at 210 Nina
Court, and that a black female wearing a multi-colored blouse and
black skirt had just departed from the premises. Appellant met
the description given and was found near 210 Nina Court. These
factors may be considered in determining whether further
investigation was warranted. See Alabama v. White, 496 U.S. 325(1990); Boyd v. Commonwealth, 12 Va. App. 179, 189-90, 402 S.E.2d
2See Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984);
People v. Myles, 50 Cal. App. 3d 423, 430, 123 Cal. Rptr. 348, 352
(1975); Quevedo v. State, 554 So. 2d 620 (Fla. Dist. Ct. App.
1989); State v. Burgess, 661 P.2d 344 (Idaho Ct. App. 1983);
People v. Solis, 482 N.E.2d 207 (Ill. App. Ct. 1985); State v.
Cobbs, 711 P.2d 900 (N.M. Ct. App. 1985); People v. Mack, 258
N.E.2d 703, 707 (N.Y. 1970), cert. denied, 400 U.S. 960 (1970);
State v. Fent, 562 P.2d 1239 (Or. Ct. App. 1977); State v. Carter,
707 P.2d 656, 660 (Utah Ct. App. 1985); State v. Harvey, 707 P.2d
146 (Wash. Ct. App. 1985).
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914, 920-21 (1991). Clearly, the officers had reasonable
suspicion of appellant's possible involvement in a burglary.
Once an officer has lawfully stopped a suspect, the officer
is authorized to take such steps as are reasonably necessary to
protect his or her personal safety and to maintain the status quo
during the course of the stop. Servis v. Commonwealth, 6 Va.
App. 507, 519, 371 S.E.2d 156, 162 (1988). We hold that the
pat-down search of appellant was reasonably necessary to protect
the officers' safety and to maintain the status quo during the
stop. Therefore, the search was not in violation of the Fourth
Amendment.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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