David Cotton v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
DAVID COTTON
MEMORANDUM OPINION * BY
v. Record No. 1541-98-2 JUDGE NELSON T. OVERTON
JANUARY 27, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
Carl C. Muzi for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
David Cotton, appellant, appeals his conviction of
possession of methamphetamine with the intent to distribute. He
raises the following issues on appeal: (1) whether the officer
had reasonable suspicion to stop and seize appellant's vehicle;
(2) whether the officer had probable cause to seize the bag in
the car based on the "plain view" doctrine; (3) whether the
officer had probable cause to arrest appellant; (4) whether the
officer had the authority to search appellant; and (5) whether
the evidence was sufficient to convict appellant of the
possession of methamphetamine with the intent to distribute.
Finding no error, we affirm the conviction.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
FACTS
The evidence proved that Investigator Douglas Perry was
screening packages for illegal narcotics shipments at a Federal
Express package distribution center in Henrico County on
September 18, 1997. Perry had twelve years of experience as a
law enforcement officer, four of which were with the Henrico
Narcotics Unit. At about 8:40 a.m., as Perry was leaving the
facility, he saw a man seated in the passenger seat of a parked
red car in the parking lot. The man had swollen eyes, looked
nervous, and appeared to be watching Perry as he drove through
the parking lot.
Perry thought the man's behavior was unusual, so he wrote
down the license plate number of the vehicle and determined the
identity of the registered owner of the vehicle. The car was
registered to a Corey Johnson, whom Perry knew as a person who
was previously involved with illegal narcotics. The address
given for Johnson was also an address Perry recognized as a
location of prior undercover drug operations.
Perry also saw a man with a long ponytail and a baseball
cap standing at the counter in the Federal Express office. The
man retrieved a package and left. Perry believed that this man
was the driver of the red car. Perry obtained a copy of the
Federal Express label from the package the man had just
retrieved. The label contained eight characteristics that Perry
believed, based on his training and experience, indicated that
- 2 -
the package possibly contained drugs. These characteristics
were: a handwritten label, misspelled words, a signature
release, payment by money order, shipment to an area known for
drug activity, shipment from an area known as a source city for
narcotics, item shipped "priority overnight" with a guaranteed
delivery time, and item shipped from one individual to another
individual. The Federal Express employee also told Perry that
the man failed to show identification when he retrieved the
package. This also aroused Perry's suspicions. Perry testified
that he had inspected over one thousand suspicious packages and
had found narcotics in about fifty percent of those packages.
Perry testified that he suspected that the package possibly
contained narcotics, so he continued his investigation. Perry,
who was dressed in plain clothes and drove an unmarked police
vehicle, went to the address on the label and called for back-up
officers. As the officers approached the address, appellant and
the man Perry saw sitting in the red car at the Federal Express
office exited the apartment. Appellant had a ponytail, wore a
baseball cap, and was dressed like the man Perry saw at the
Federal Express counter. He also carried a brown paper bag.
The two men entered the red car, with appellant driving the
car. They looked at Perry, then rapidly drove away. As Perry
followed the car, the car accelerated rapidly and exited the
apartment complex through an alley in the rear. Perry followed
the car, and he saw that the two men repeatedly looked back at
- 3 -
him. Perry activated his blue lights and siren; however, the
red car accelerated and made numerous turns until it reached a
dead end parking lot in an apartment complex. Perry and the
other officers stopped behind appellant's vehicle.
Appellant exited the car, approached Perry and asked,
"What's this all about? . . . Why are you stopping me?" Perry
identified himself as a police officer. He told appellant that
he was a narcotics investigator and had been investigating
possible drug deliveries at the Federal Express office. Perry
asked appellant for identification, and appellant said that he
had none with him. Appellant returned to the red car and sat in
the driver's seat of the car.
Perry approached the car and asked appellant if he had
picked up a package at the Federal Express office. Appellant
replied, "Yes," but he said that the package was at the
apartment. Perry then saw a brown paper bag in plain view on
the floor behind the driver's seat of the car. Inside the bag,
Perry could see the same Federal Express label that he had seen
a copy of at the Federal Express office. Perry could also see a
Federal Express package, plastic bags with the corners removed,
baggie corners, and a "bundle of masking tape that had been
ripped open." Based on his prior training and experience, Perry
testified that he often saw baggie corners and packages wrapped
in masking tape as part of illegal drug trafficking. Perry
asked appellant to let him see the brown paper bag, and
- 4 -
appellant refused to do so, stating, "Not without a search
warrant." Perry replied that he did not need a search warrant
because the bag was in plain view. As Perry reached for the
bag, appellant exited the car and tried to flee. The officers
stopped appellant and handcuffed him.
Perry conducted a pat-down search for weapons as appellant
lay on the ground. During the pat-down, Perry felt "a hard
substance that was in a plastic outer container or something" in
appellant's groin area. Perry stated that he "immediately
recognized it as drugs" because the groin area is a common place
for persons to carry drugs. Perry retrieved the container and
recovered over fifty-six grams of methamphetamine. The drugs
were packaged in eight "corner" baggies, containing about 3.5
grams of methamphetamine in each bag, and one "larger" baggie,
containing about one ounce of the drug. Perry testified that
the quantity of recovered methamphetamine and the packaging of
the drugs were inconsistent with personal use.
Appellant filed a motion to suppress, contending that Perry
did not have a reasonable, articulable suspicion to stop
appellant's car; that Perry did not have probable cause to seize
the bag found in the rear floor of the car based on the "plain
view" doctrine; that Perry did not have probable cause to arrest
appellant; and that Perry did not have the authority to search
appellant. The trial court denied the motion to suppress, and,
- 5 -
sitting without a jury, convicted him of possessing
methamphetamine with the intent to distribute.
ANALYSIS
I. The Stop
In reviewing a trial court's denial of a motion to
suppress, we are bound to review de novo the ultimate questions
of reasonable suspicion and probable cause. See Ornelas v.
United States, 517 U.S. 690, 699 (1996). However, 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." 1 Id."If a police officer has reasonable, articulable suspicion
that a person is engaging in, or is about to engage in, criminal
activity, the officer may detain the suspect to conduct a brief
investigation without violating the person's Fourth Amendment
protection against unreasonable searches and seizures." McGee
v. Commonwealth, 25 Va. App. 193, 202, 487 S.E.2d 259, 263
(1997) (en banc). Reasonable suspicion is "'a particularized
and objective basis' for suspecting the person stopped of
1
"'Clear error' is a term of art derived from Rule 52(a) of
the Federal Rules of Civil Procedure, and applies when reviewing
questions of fact" in the federal system. Ornelas, 517 U.S. at694 n.3. In Virginia, questions of fact are binding on appeal
unless "plainly wrong." Quantum Dev. Co. v. Luckett, 242 Va. 159,
161, 409 S.E.2d 121, 122 (1991); Naulty v. Commonwealth, 2 Va.
App. 523, 527, 346 S.E.2d 540, 542 (1986).
- 6 -
criminal activity." Ornelas, 517 U.S. at 696 (citation
omitted). However,
"[t]here is no 'litmus test' for reasonable
suspicion. Each instance of police conduct
must be judged for reasonableness in light
of the particular circumstances." "In order
to determine what cause is sufficient to
authorize police to stop a person,
cognizance must be taken of the 'totality of
the circumstances--the whole picture.'"
Harmon v. Commonwealth, 15 Va. App. 440, 445, 425 S.E.2d 77, 79
(1992) (citations omitted).
The circumstances established that Perry had reason to
believe that appellant may have been engaged in criminal
activity when he stopped appellant's car. Perry, who was
trained and experienced in investigating suspicious packages,
saw a man who he believed acted suspiciously in the Federal
Express parking lot as the man nervously watched Perry. When
Perry checked the ownership of the car, he learned that the car
was registered to someone who Perry knew had engaged in illegal
drug activities. Furthermore, Perry's suspicions increased when
he viewed the copy of the label from the package that the man
with the ponytail had retrieved. Perry testified to eight
characteristics of the label that were associated with shipments
of illegal drugs. Also, the address on the label was in an area
that Perry knew was associated with illegal drug activity in the
past.
- 7 -
Moreover, when Perry drove to the address indicated on the
label, appellant and the other man Perry had observed in the
Federal Express office parking lot exited the apartment and
rapidly exited the parking lot. Perry had to "catch up" with
appellant and even after Perry activated his blue lights and
siren, appellant did not immediately stop. After driving
evasively, appellant finally stopped in a dead end parking lot.
"When determining if reasonable suspicion exists, courts
must consider that '[t]rained and experienced police officers
. . . may be able to perceive and articulate meaning in given
conduct which would be wholly innocent to the untrained
observer.'" Buck v. Commonwealth, 20 Va. App. 298, 302, 456
S.E.2d 534, 536 (1995) (citation omitted). Based on these
circumstances and Perry's experience and training, Perry had
sufficient reasonable, articulable suspicion to detain appellant
to investigate his activity. Therefore, the stop for the
purpose of obtaining more information was reasonable and was not
unlawful.
II. Seizure of the Bag
Appellant contends that Perry did not have probable cause
to seize the brown paper bag based on the "plain view" doctrine.
"[I]n order for a seizure to be permissible
under the plain view doctrine, two
requirements must be met: '(a) the officer
must be lawfully in a position to view and
seize the item, [and] (b) it must be
immediately apparent to the officer that the
- 8 -
item is evidence of a crime, contraband, or
otherwise subject to seizure.'"
Conway v. Commonwealth, 12 Va. App. 711, 718, 407 S.E.2d 310,
314 (1991) (en banc) (citation omitted).
Because the stop was not unlawful, Perry was lawfully in a
position to view the bag when he stood beside appellant's car.
Perry saw that the bag contained indicia of narcotics
trafficking, and it contained a copy of the "exact same" Federal
Express label Perry had seen earlier that day in connection with
his investigation. Thus, it was immediately apparent to Perry,
based on his training and experience, that the bag contained
items that were evidence of a crime or contraband and that the
appellant had lied to him when he said the package was at the
apartment. Accordingly, he had probable cause to seize the bag.
III. and IV. Probable Cause to Arrest and The Search
Appellant contends that the officers lacked probable cause
to arrest him. He also argues that, when the officers blocked
his car at the end of the dead end road, this was an unlawful
seizure. However, Perry initially had suspicions concerning the
possibility of appellant's criminal conduct relating to
appellant's receipt of the Federal Express package. Then
appellant attempted to elude Perry as Perry followed the
suspects, and appellant refused to stop his vehicle in response
to Perry's blue lights and siren until he was forced to stop at
the end of a dead end street. Therefore, Perry had reasonable
- 9 -
and articulable suspicion of criminal activity, and the
officers' blocking of appellant's vehicle was not an illegal
seizure or detention. See Quigley v. Commonwealth, 14 Va. App.
28, 33, 414 S.E.2d 851, 854 (1992).
Moreover, appellant's attempted flight on foot from the
scene provided additional reason to suspect "'an offense ha[d]
been committed.'" Ford v. City of Newport News, 23 Va. App.
137, 143, 474 S.E.2d 848, 851 (1996) (citation omitted).
Therefore, the officers had probable cause to arrest appellant.
Because appellant was properly arrested, the search incident to
the arrest was lawful. See Illinois v. Lafayette, 462 U.S. 640,
646 (1983).
In addition, Perry testified that he immediately recognized
the object in appellant's pants as narcotics, and he knew from
his experience and training that drugs are often concealed in
that manner. Therefore, the seizure of the drugs was
permissible. See Welshman v. Commonwealth, 28 Va. App. 20,
35-36, 502 S.E.2d 122, 129 (1998) (en banc).
V. Sufficiency of the Evidence
Appellant argues that had the trial court granted any of
the issues presented in the motion to suppress, the evidence
would not have been sufficient to convict appellant. However,
as stated above, the trial court did not err in denying the
motion to suppress the evidence and in admitting the evidence
- 10 -
that appellant possessed more than fifty-six grams of
methamphetamine.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). From the evidence of appellant's possession
of the drugs, combined with Perry's testimony concerning the
packaging evidence and Perry's testimony that the quantity of
recovered methamphetamine was inconsistent with personal use,
the trial court could conclude beyond a reasonable doubt that
appellant committed the charged offense. See White v.
Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997)
(en banc).
For these reasons, we affirm the decision of the trial
court.
Affirmed.
- 11 -