Gary Jerome Palmer v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
GARY JEROME PALMER
MEMORANDUM OPINION *
v. Record No. 2213-95-1 BY JUDGE JOSEPH E. BAKER
DECEMBER 17, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Alfred W. Whitehurst, Judge
Jennifer T. Stanton (Stowe & Stanton, P.C.,
on brief) for appellant.
Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Gary Jerome Palmer (appellant) appeals from his bench trial
convictions by the Circuit Court of the City of Norfolk (trial
court) for second offense possession of cocaine with intent to
distribute in violation of Code § 18.2-248, possession of a
firearm while in possession of cocaine with intent to distribute
in violation of Code § 18.2-308.4, and possession of a firearm
after having been convicted of a felony in violation of Code
§ 18.2-308.2. Appellant contends that the trial court erred when
it refused to suppress the cocaine and firearm evidence, in
admitting the certificate of analysis of the cocaine into
evidence, and in finding that the chain of custody of the drugs
was not broken. Finding no error, we affirm the judgment of the
trial court.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
In an appeal from an adverse ruling on a motion to suppress,
we view the evidence in the light most favorable to the
prevailing party below and grant all reasonable inferences fairly
deducible therefrom. Williams v. Commonwealth, 4 Va. App. 53,
58, 354 S.E.2d 79, 82 (1987); Fore v. Commonwealth, 220 Va. 1007,
1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980).
The finding of the trial court will not be disturbed unless it is
not supported by the evidence and plainly wrong, Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991), and
the burden is upon appellant to show that the trial court's
ruling constituted reversible error. Fore, 220 Va. at 1010, 265
S.E.2d at 731. Our review of the record includes evidence
adduced at both the trial and the suppression hearing. DePriest
v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43
(1987), cert. denied, 488 U.S. 985 (1988).
Appellant first contends that the evidence fails to show
that the arresting officer, Detective Richard A. Scarola
(Scarola), articulated reasonable suspicion to justify a Terry
stop. We disagree. Terry declared that the Fourth Amendment
does not proscribe all seizures, only those that are
unreasonable. Terry v. Ohio, 392 U.S. 1, 9 (1968); see also
Hogan v. Commonwealth, 15 Va. App. 355, 367-68, 423 S.E.2d 841,
849-50 (1992), and cases there cited.
There is no litmus test for reasonable suspicion. Harmon v.
Commonwealth, 15 Va. App. 440, 444-45, 425 S.E.2d 77, 79 (1992).
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Each instance of police conduct must be judged for
reasonableness in light of the particular circumstances.
Castenada v. Commonwealth, 7 Va. App. 574, 580, 376 S.E.2d 82, 85
(1989) (citing Terry, 392 U.S. at 21).
The analysis proceeds with various objective
observations, information from police reports
if such are available, and consideration of
the modes or patterns of operation of certain
kinds of law breakers. From these data, a
trained officer draws inferences and makes
deductions--inferences and deductions that
might well elude an untrained person.
The process does not deal with hard
certainties, but with probabilities. Long
before the law of probabilities was
articulated as such, practical people
formulated certain common sense conclusions
about human behavior; jurors as factfinders
are permitted to do the same--and so are law
enforcement officers.
United States v. Cortez, 449 U.S. 411, 418 (1981). In
determining what cause is sufficient for a police officer to stop
a person, "cognizance must be taken of the 'totality of the
circumstances--the whole picture.'" Williams, 4 Va. App. at 65,
354 S.E.2d at 85. The totality of the circumstances includes the
consideration that a trained law enforcement officer may be able
to perceive and articulate meaning in given conduct which would
not be perceived by an untrained person. United States v.
Gooding, 695 F.2d 78, 82 (4th Cir. 1982). The officer's
perception need not rise to the level of probable cause; rather,
the officer must only possess a reasonable, articulable suspicion
that criminal activity may be afoot. United States v. Sokolow,
490 U.S. 1, 7 (1989).
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The Fourth Amendment does not require a
policeman who lacks the precise level of
information necessary for probable cause to
arrest to simply shrug his shoulders and
allow a crime to occur or a criminal to
escape. On the contrary, Terry recognized
that it may be the essence of good police
work to adopt an intermediate response. A
brief stop of a suspicious individual, in
order to determine his identity or to
maintain the status quo momentarily while
obtaining more information, may be most
reasonable in light of the facts known to the
officer at the time.
Williams, 4 Va. App. at 65, 354 S.E.2d at 86 (quoting Adams v.
Williams, 407 U.S. 143, 145-46 (1972).
In the case before us, eight members of the Norfolk Police
Vice-Narcotics Unit were armed with information that illegal
narcotics distributions were reputed to be taking place in a
particular block of an area managed by the Norfolk Redevelopment
and Housing Authority. The officers were patrolling the area at
2:00 p.m. on February 20, 1995, in two unmarked cars. Detective
Richard Scarola, a seventeen-year veteran of the Norfolk Police
Department who had been assigned to vice-narcotics 1 for the last
nine years, was among the eight officers.
Scarola exited from one of the unmarked police vehicles and
entered the reputed block where a playground facility was
located. As Scarola approached the playground, he observed seven
or eight men in the area. They did not appear to be playing on
the playground. Scarola observed appellant whose back was
1
During that period, Scarola had made "a few hundred"
arrests for narcotics violations.
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partially turned toward him. Appellant appeared to be talking to
another man directly in front of him. Appellant had his right
hand out, palm up, and made a motion as if he were placing
something in the other man's hand.
Scarola was approximately twenty-five feet away when he
heard someone yell "Five-0," a street term used to indicate that
police are in the area. Appellant turned in the direction of
Scarola and then turned the opposite way and ran from Scarola's
view.
Considering Scarola's knowledge of the totality of the
circumstances, his training and experience as a narcotics
investigator, and appellant's flight, Scarola articulated
reasonable suspicion that criminal activity may have been afoot.
This reasonable suspicion justified further investigation.
Appellant also argues that Scarola did not have probable
cause to arrest him. We disagree.
Scarola pursued appellant behind a brick shed. At this
point Scarola was the only officer in the immediate area.
Appellant was out of sight for fifteen to thirty seconds. When
Scarola caught up with appellant, he observed appellant
withdrawing his hand from a trash can and simultaneously heard
the "thud" of something heavy hitting the trash can. Appellant
then turned and faced Scarola. Scarola asked appellant "to let
me see your hands." Instead of responding as requested,
appellant placed his hands out of sight underneath his sweatshirt
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near the waist of his pants. Scarola, "worried for [his] safety
and any other investigator's safety," "reached and grabbed" for
appellant's hands so that he could see them. As Scarola
contacted appellant's arm, both men fell to the ground. After a
short wrestle, and as one of the other officers came up to
assist, Scarola "stood [appellant] back up, placed him on a wall
and arrested him." Scarola then walked over to the trash can,
seven or eight feet away, opened it and found a loaded gun and
beeper inside. Thereafter, for his protection and incident to
the arrest, Scarola searched appellant and found bags of cocaine.
We hold that there was no violation of appellant's Fourth
Amendment rights and that Scarola had probable cause to arrest
appellant. In Williams, 4 Va. App. at 67, 354 S.E.2d at 87, this
Court clearly established that suspicion of narcotics possession
and distribution gives rise to an inference of dangerousness. To
hold otherwise would be an invitation to violence in what is
always a potentially explosive situation. Id. The record before
us establishes that Scarola had reasonable suspicion that drug
activity was afoot. When someone yelled out "Five-0" in a
reputed narcotics transaction area where appellant was observed
passing something to another person, thereby alerting him to
police presence in the area, appellant fled. Appellant's
"flight" in the face of lawful authority, with the other evidence
in the record, supplied reasonable suspicion, invited pursuit by
the officer, and colored conduct that may have appeared innocent
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to the untrained observer. See Quigley v. Commonwealth, 14 Va.
App. 28, 33, 414 S.E.2d 851, 854 (1992) (quoting United States v.
Lane, 909 F.2d 895, 899 (6th Cir. 1990), cert. denied, 498 U.S.
1093 (1991)); Buck v. Commonwealth, 20 Va. App. 298, 302-03, 456
S.E.2d 534, 535-36 (1995). When Scarola commanded appellant to
show his hands, he refused and concealed them from view.
Appellant placed his hands under his sweatshirt at the waistline
of his pants where he would likely have concealed a weapon if he
were carrying one.
Probable cause to justify an arrest means,
. . . facts and circumstances within the
officer's knowledge that are sufficient to
warrant a prudent person, or one of
reasonable caution, in believing, in the
circumstances shown, that the suspect has
committed, is committing, or is about to
commit an offense. The evidence needed to
establish probable cause is more than a mere
suspicion, rumor, or strong reason to suspect
but less than evidence sufficient to convict.
United States v. Williams, 10 F.3d 1070, 1073-74 (4th Cir. 1993)
(citations omitted), cert. denied, 115 S. Ct. 313 (1994). At
this point in time, Scarola had sufficient facts and
circumstances to warrant his belief that appellant had committed,
was committing, or was about to commit an offense.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)
(citation omitted). Appellant argues that the certificate of
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analysis should not have been admitted into evidence because it
did not comport with Scarola's testimony that he recovered twenty
individually-wrapped bags of cocaine from appellant. However, a
comparison of the request for laboratory examination form and the
certificate of analysis shows the two documents both contain the
names of appellant and the investigating officer, and the case
number assigned by the lab. This information coincides to
connect the drug analyzed and referenced in the certificate to
the substance recovered by Scarola. See Crews v. Commonwealth,
18 Va. App. 115, 120, 442 S.E.2d 407, 409 (1994). Any
discrepancy in Scarola's testimony about the number of baggies of
cocaine he submitted addressed the weight to be given the
evidence, not its admissibility. "Where there is mere
speculation that contamination or tampering could have occurred,
it is not an abuse of discretion to admit the evidence and let
what doubt there may be go to the weight to be given the
evidence." Reedy v. Commonwealth, 9 Va. App. 386, 391, 388
S.E.2d 650, 652 (1990); see also Gosling v. Commonwealth, 14 Va.
App. 158, 166, 415 S.E.2d 870, 874 (1992). Therefore, the trial
judge did not abuse his discretion in admitting the certificate.
Scarola testified that he took custody of the drugs from
appellant and took them to his office. He sealed the drugs in
the plastic bag that the drugs were in at trial, labeled the bag,
and placed it into his evidence locker. He later took the drugs
to the police department's property and accounting division where
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another number was assigned to the evidence. Scarola then took
the drugs to the forensic laboratory and gave the evidence to the
state representative who logged the information in a book and
gave Scarola a receipt. Scarola testified that the drugs were in
substantially the same condition from the time he received them
from appellant until he took the drugs to the laboratory.
Thus, the Commonwealth showed with reasonable certainty that
the evidence had not been altered, substituted, or contaminated
prior to analysis. Scarola explained that he thought there were
twenty bags of cocaine rather than two, as stated on the
certificate of analysis, but that he was testifying from memory.
Further, appellant did not "offer any evidence of mishandling or
tampering to rebut the Commonwealth's proof of chain of custody."
See Brown v. Commonwealth, 21 Va. App. 552, 557, 466 S.E.2d 116,
118 (1996). Again, any argument that a break in the chain of
custody occurred was based on mere speculation, and the record
does not suggest any taint or contamination of the evidence.
Therefore, the trial court did not abuse its discretion in
admitting the drugs into evidence.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
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