Levelle D. Terry v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Chaney, Raphael and Callins
UNPUBLISHED
Argued by videoconference
LEVELLE D. TERRY
MEMORANDUM OPINION* BY
v. Record No. 1365-21-2 JUDGE STUART A. RAPHAEL
JANUARY 31, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Randall G. Johnson, Jr., Judge
Kevin E. Calhoun for appellant.
Lucille M. Wall, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Claiming that the trial court erred in denying his motion to suppress, Levelle D. Terry
appeals his two convictions for possession of a Schedule I or II controlled substance (cocaine
and methamphetamine), in violation of Code § 18.2-250. We find that Terry was lawfully
detained as a passenger in a vehicle properly stopped for traffic infractions. During that lawful
detention, the officer properly requested Terry’s identification, which Terry voluntarily provided.
Discovering that Terry had outstanding arrest warrants, the officers lawfully arrested him,
discovering those narcotics in their search incident to arrest. Rejecting Terry’s claim that he was
tricked into providing his identification, we affirm his convictions.
*
Pursuant to Code § 17.1 413, this opinion is not designated for publication.
BACKGROUND1
On June 24, 2020, Henrico County Police Officer Michael Berry observed a car without a
front license plate being driven away from a hotel. Officer Berry followed the vehicle, intending to
make a traffic stop for the missing plate. The driver then made a right turn from the center lane into
a 7-Eleven parking lot. Officer Berry turned on his warning lights and initiated a traffic stop.
As Officer Berry approached the driver’s side of the vehicle, the driver was stepping out.
Berry instructed the driver to get back inside, and the driver complied. Berry explained the reason
for the stop and asked the driver for his driver’s license and registration. While the driver searched
for his registration, Berry requested a K9 unit because “[t]he hotel and the area [the vehicle] left is a
high narcotics area.”
There were two passengers in the vehicle: Terry sat in the front passenger seat, and a woman
sat in the backseat. Officer Berry asked them both for identification. Terry hesitated and asked why
the officer needed it. Berry replied that he “tr[ies] to identify everybody that’s in the vehicle on a
traffic stop just so [he] know[s] . . . who’s in the car.” Terry responded, “Oh, all right,” and handed
over his identification. By that point, Officer Ralph Adams had arrived and approached the
passenger side of the car.
As the driver kept looking for his registration, Officer Berry engaged the backseat passenger
in conversation. He asked whether there was anything illegal in the car and about her previous drug
use. After several minutes of looking for his registration, the driver told Berry that he could not find
it. Berry then asked the driver the same questions he had asked the backseat passenger, because the
vehicle was “coming from a high narcotic area.” When he finished speaking with the driver, Berry
returned to his patrol car and ran each occupant’s information.
On appeal, “we recite the evidence below ‘in the “light most favorable” to the
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Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74
Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)).
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In the meantime, Terry asked Officer Adams if he “could go into the store.” Adams
responded that Terry needed to wait but could go into the store “as soon as” Officer Berry “was
done,” which “shouldn’t be long.” About a minute later, Berry received notification that Terry had
outstanding arrest warrants. Berry radioed for backup and prepared a ticket for the driver.
When the K-9 officer arrived soon after, all occupants were instructed to remain in the
vehicle. The drug-sniffing dog alerted that there were narcotics in the car. Because Terry had
outstanding warrants, the officers extracted him first. Although Terry had been cooperative and
calm until then, he began to argue and then tried to flee. Officer Adams placed Terry in handcuffs
and told him that Officer Berry had discovered his outstanding warrants.
After confirming that the warrants were valid, Adams arrested Terry. Adams conducted a
search incident to arrest and discovered a baggie of white powder and several other items. Testing
confirmed—and Terry stipulated—that the baggie contained cocaine and methamphetamine.
Terry moved to suppress the narcotics, arguing that he was illegally detained. He reasoned
that the seizure was not a typical traffic stop in which it would have been “impractical or illogical to
ask passengers to . . . get out and walk away.” Terry claimed that he had arrived at his intended
destination—the 7-Eleven—and there were no safety concerns that justified detaining him further,
rather than allowing him to join “the other people who were milling about going about their
business in the store.” Terry also argued that the officers obtained his identification through illegal
and coercive tactics.
The trial court denied Terry’s suppression motion, finding that Terry was legally detained as
part of a valid traffic stop and that he was not coerced into handing over his identification. The jury
convicted Terry of two counts of possession in violation of Code § 18.2-250. Terry was sentenced
to ten years’ incarceration on each conviction, with six years and six months suspended on the
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cocaine conviction and all ten years suspended on the methamphetamine conviction. He noted a
timely appeal.
ANALYSIS
“The law regarding appellate review of a trial court’s decision on a motion to suppress is
well settled. The appellant bears the burden of establishing that reversible error occurred.”
Williams v. Commonwealth, 71 Va. App. 462, 474 (2020). “[A]n appellate court must give
deference to the factual findings of the circuit court and give due weight to the inferences drawn
from those factual findings . . . .” Moore v. Commonwealth, 69 Va. App. 30, 36 (2018) (first
alteration in original) (quoting Commonwealth v. Robertson, 275 Va. 559, 563 (2008)). “On
appeal, a ‘defendant’s claim that evidence was seized in violation of the Fourth Amendment
presents a mixed question of law and fact that we review de novo.’” Cole v. Commonwealth,
294 Va. 342, 354 (2017) (quoting Cost v. Commonwealth, 275 Va. 246, 250 (2008)).
A. Terry was properly detained as part of a lawful traffic stop
(Assignment of Error 1).
Terry claims that his detention was unlawful. He argues that the stop was “not a
traditional traffic stop” because the occupants had already arrived at their intended destination.
Terry theorizes that there were “three separate Terry2 stops on each of the three passengers in the
vehicle,” so to justify detaining him, the officers needed reasonable, articulable suspicion that
Terry was about to commit a crime or that he posed a risk to officer safety. Terry reasons that,
because the officers admitted that Terry was not suspected of criminal wrongdoing and did not
threaten their safety, his detention was unlawful.
“The Fourth Amendment protects people from unreasonable searches and seizures.”
Williams, 71 Va. App. at 476. When determining whether the Fourth Amendment has been
2
See Terry v. Ohio, 392 U.S. 1 (1968).
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violated, we look at the totality of the circumstances. Samson v. California, 547 U.S. 843, 848
(2006). “Although limited in purpose and length of detention, an investigative traffic stop
constitutes a seizure within the meaning of the Fourth Amendment.” Harris v. Commonwealth,
276 Va. 689, 694 (2008). An officer may initiate a traffic stop only when he has reasonable
suspicion to believe that a traffic or equipment violation has occurred. Bass v. Commonwealth,
259 Va. 470, 475 (2000).
During a lawful traffic stop, “a police officer effectively seizes ‘everyone in the vehicle,’
the driver and all passengers.” Arizona v. Johnson, 555 U.S. 323, 327 (2009) (quoting Brendlin
v. California, 551 U.S. 249, 255 (2007)). “‘[A]s a practical matter, the passengers are already
stopped by virtue of the stop of the vehicle,’ so ‘the additional intrusion on the passenger is
minimal.’” Id. at 332 (quoting Maryland v. Wilson, 519 U.S. 408, 413-15 (1997)). Like the
driver, the passenger is considered “seized” from the time the vehicle is stopped. Id.“The temporary seizure of driver and passengers ordinarily continues, and remains
reasonable, for the duration of the stop.” Id. at 333. During a lawful stop, police may “obtain
the registration for the vehicle and request the identities of its occupants,” “seek radio dispatch
confirmation of the information obtained from the vehicle occupants,” detain the driver and
passengers for “the duration of the stop,” and “ask questions unrelated to the traffic violation.”
Thomas v. Commonwealth, 57 Va. App. 267, 277 (2010). “An officer’s inquiries into matters
unrelated to the justification for the traffic stop . . . do not convert the encounter into something
other than a lawful seizure, so long as those inquiries do not measurably extend the duration of
the stop.” Johnson, 555 U.S. at 333. Because “traffic stops are ‘especially fraught with danger
to police officers[,]’ ‘[t]he risk of harm to both the police and the occupants [of a stopped
vehicle] is minimized . . . if the officers routinely exercise unquestioned command of the
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situation.’” Id. at 330 (third alteration in original) (first quoting Michigan v. Long, 463 U.S.
1032, 1047 (1983); then quoting Wilson, 519 U.S. at 414).
In this case, the officers lawfully stopped the driver’s vehicle for traffic infractions.
Officer Berry saw that the vehicle lacked a front license plate and had made an illegal right-hand
turn. Having observed both an equipment and a traffic violation, Berry had reasonable suspicion
to initiate the traffic stop. Bass, 259 Va. at 475. Having lawfully stopped the vehicle, Berry
could legally detain Terry—as “a passenger” in the vehicle—for “the duration of the stop.”
Thomas, 57 Va. App. at 277. Berry was also permitted “to obtain the registration for the vehicle
and request the identities of its occupants.” Id. Terry’s outstanding arrest warrants were
discovered during that lawful investigation.
That the vehicle had arrived at its destination, the 7-Eleven, does not take the case out of
the traffic-stop context. Because the officers were entitled to “exercise unquestioned command
of the situation” during the stop, Johnson, 555 U.S. at 330 (quoting Wilson, 519 U.S. at 414),
they were not required to let Terry exit the vehicle to go into the store. “[T]he same weighty
interest in officer safety . . . is present regardless of whether the occupant of the stopped car is a
driver or passenger.” Id. at 331 (first alteration in original) (quoting Wilson, 519 U.S. at 413).
Indeed, “the motivation of a passenger to employ violence to prevent apprehension of . . . a
crime . . . is every bit as great as that of the driver.” Id. at 331-32 (quoting Wilson, 519 U.S. at
414). The officers were “not constitutionally required to give [the passenger] an opportunity to
depart the scene after he exited the vehicle without first ensuring that, in so doing, [the officers
were] not permitting a dangerous person to get behind [them].” Id. at 334. “It is also reasonable
for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will
not let people move around in ways that could jeopardize his safety.” Brendlin, 551 U.S. at 258.
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B. Terry voluntarily provided the officer with his identification
(Assignment of Error 2).
Terry argues that “any consent he provided to the police to review his identification card
and run the information it contained through police databases was unlawfully obtained because
. . . he was being illegally detained by the police.” Terry incorporates his earlier arguments that
the detention was illegal and notes that any consent he provided was tainted by that illegality.
He also argues that his consent was not voluntary because it was obtained through coercive and
deceptive police actions. Terry says that Officer Berry failed to disclose that he planned to check
for outstanding warrants and failed to advise that Terry was not required to provide his
identification. Terry adds that the presence of multiple officers on the scene suggested that he
had to comply.
As explained above, we find that Terry was lawfully detained during a valid investigative
traffic stop. As part of that lawful stop, Officer Berry could request Terry’s identification and
verify the information through the police database. Although neither party cites it, our decision
in Thomas governs this issue: “With respect to passengers, if ‘an officer may “as a matter of
course” and in the interest of personal safety order a passenger physically to exit the vehicle, he
may surely take the minimally intrusive step of requesting passenger identification.’” Thomas,
57 Va. App. at 277 n.9 (quoting United States v. Soriano-Jarquin, 492 F.3d 495, 500 (4th Cir.
2007)).3
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Although the United States Supreme Court has not decided the question, “all federal
circuit courts to address the issue have concluded that officers may request a passenger’s
identification during a traffic stop and run a warrants check, even absent an independent basis for
doing so.” Perozzo v. State, 493 P.3d 233, 238-39 & n.19 (Alaska Ct. App. 2021) (collecting
cases). A handful of “state courts, however, have concluded that officers are prohibited from
requesting identification from passengers during a traffic stop, absent reasonable suspicion of
wrongdoing or some other case-specific justification beyond general officer safety concerns.”
Id. at 239 & n.24 (collecting cases). Barring a contrary ruling by the United States Supreme
Court, by our Supreme Court, or by a decision of this Court sitting en banc, we must follow
Thomas.
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We also agree with the trial court that Terry’s acquiescence to Officer Berry’s request
was voluntary. Berry requested Terry’s identification. Berry did not become visibly agitated or
impatient when Terry asked why Berry needed it. Berry explained that he simply “wanted to
know who [he was] talking to,” and Terry, without objection or further questions said, “Oh, all
right,” handing it over. The evidence supported the trial court’s finding that Berry’s request for
Terry’s identification was not coercive. We reject Terry’s argument that Berry was required to
inform him of his right to refuse the request for identification. An officer’s “failure to inform [a]
defendant[] of [his] [F]ourth [A]mendment protections or [his] right to refuse consent [to a
search] does not render the consent involuntary.” Limonja v. Commonwealth, 7 Va. App. 416,
424 (1988). In short, we conclude that Terry provided his identification voluntarily and was not
coerced into doing so.
CONCLUSION
Terry was detained during a valid investigative traffic stop. Officer Berry properly
requested Terry’s identification, and Terry provided it voluntarily. Accordingly, the trial court
did not err in denying Terry’s motion to suppress.
Affirmed.
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