Carl Mann v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Lemons
Argued at Chesapeake, Virginia
CARL MANN
MEMORANDUM OPINION * BY
v. Record No. 2897-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
Wade A. Bowie (Joseph M. DuRant; Cumming,
Hatchett & Jordan, on briefs), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Carl Mann (appellant) was convicted in a bench trial of
possession of cocaine, in violation of Code § 18.2-250. The
trial court denied appellant's pretrial motion to suppress
evidence seized from the car in which he was a passenger and a
subsequent statement made to a police officer. The sole issue
raised on appeal is whether the search of the front passenger
seat of the car exceeded the permissible scope of a Terry stop.
For the following reasons, we affirm.
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
On appeal, the defendant bears the burden to establish that
denying the motion to suppress was reversible error. See
Reittenger v. Commonwealth, 29 Va. App. 724, 729, 514 S.E.2d
775, 777 (1999). Whether a seizure occurred and whether a frisk
for weapons was constitutionally valid involve questions of law
and fact which we review de novo on appeal. See McGee v.
Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261
(1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690,
699 (1996)). "In performing such analysis, we are bound by the
trial court's findings of historical fact unless 'plainly wrong'
or without evidence to support them. . . ." Id. (citing
Ornelas, 517 U.S. at 699). We view the evidence in the light
most favorable to the Commonwealth. See Reittenger, 29 Va. App.
at 729, 514 S.E.2d at 777-78.
So viewed, the evidence established that on March 7, 1998,
Officers Christopher McIntyre (McIntyre) and Traci Brylewski
(Brylewski) were working a plain-clothes "interdiction"
operation in the City of Hampton. McIntyre found crack cocaine
on a suspect, who then escaped from the police and fled toward 8
North Hope Street.
Approximately five minutes later, McIntyre received a
report that a suspect left 8 North Hope Street with another man
and entered a 1985 Oldsmobile. McIntyre thought that one of
these individuals may have been the suspect that fled from him.
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McIntyre and Brylewski located the 1985 Oldsmobile, which
was parked near a pawn shop. McIntyre approached the car to see
whether the passenger was the same man he had detained earlier
and saw appellant sitting in the passenger side of the car and
stuffing "something between the car seats." Concerned that
appellant might be concealing a weapon, McIntyre ordered
appellant to show his hands. Appellant complied, but then
reached down and again made a stuffing motion into the seat "as
if he was trying to conceal an item."
At that point, McIntyre ordered appellant from the car and
handcuffed him to make sure that he could not get back into the
car and retrieve a possible weapon. As McIntyre was handcuffing
appellant, he told Brylewski to search the car seat where he had
seen appellant stuff the unknown item. Brylewski reached into
the seat and recovered a bag containing crack cocaine. After
being advised of his Miranda rights, appellant made an
incriminating statement.
II.
Appellant concedes that the initial seizure was reasonable
and that Officer McIntyre "acted properly in removing
[appellant] from the vehicle" to investigate whether he was the
fleeing suspect and for reasons of officer safety. He also
agrees that the pat-down frisk for weapons was constitutionally
permissible. However, appellant argues that the search of the
passenger seat exceeded the scope of Terry v. Ohio, 392 U.S. 1- 3 -
(1968), because appellant was out of the car and handcuffed when
Officer Brylewski conducted the search. Thus, the issue of
officer safety was no longer present to justify the intrusion.
We disagree.
This case is controlled by our decision in Glover v.
Commonwealth, 3 Va. App. 152, 348 S.E.2d 434 (1986), where we
rejected this same argument. There, the defendant argued "it
was not reasonable for [the officer] to fear for his safety or
for the safety of others, because [the defendant] was not in the
car at the time and was effectively under police control at the
time the search was conducted." Id. at 157, 348 S.E.2d at 438.
However, we disagreed and relied upon the Supreme Court's
decision in Michigan v. Long, 463 U.S. 1032 (1983), where the
Court noted the following:
Just as a Terry suspect on the street may,
despite being under the brief control of a
police officer, reach into his clothing and
retrieve a weapon, so might a Terry suspect
in [the defendant's] position break away
from police control and retrieve a weapon
from his automobile. . . . In any event, we
stress that a Terry investigation, such as
the one that occurred here, involves a
police investigation "at close range," when
the officer remains particularly vulnerable
in part because a full custodial arrest has
not been effected, and the officer must make
a "quick decision as to how to protect
himself and others from possible
danger. . . ." In such circumstances, we
have not required that officers adopt
alternate means to ensure their safety to
avoid the intrusion involved in Terry.
Long, 403 U.S. at 1051-52 (citations omitted).
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The same rationale applied in Long and Glover applies in
the instant case. Viewed in the light most favorable to the
Commonwealth, appellant was in the process of being handcuffed
when Brylewski searched the car seat and he could have broken
away from McIntyre to retrieve a weapon. Contrary to
appellant's argument that the concern of officer safety ceased
after McIntyre conducted the pat-down frisk and found no weapons
on appellant's person, the officers were justified in conducting
a Terry search of the car seat before allowing appellant to
re-enter the vehicle. "The law does not expect that a police
officer must gamble on turning away from a possible danger and
chance taking a bullet in the back . . . ." Lansdown v.
Commonwealth, 226 Va. 204, 212, 308 S.E.2d 106, 111 (1983),
cert. denied, 465 U.S. 1104 (1984).
The facts demonstrate that Officer McIntyre observed
suspicious and furtive conduct, circumstances that prompted
understandable concern for his security, and he acted reasonably
and appropriately to minimize the threat. See, e.g., Welshman
v. Commonwealth, 28 Va. App. 20, 32, 502 S.E.2d 122, 128 (1998)
(en banc) (no Fourth Amendment violation where defendant's
furtive actions cause the officer to believe he was armed and
dangerous); James v. Commonwealth, 22 Va. App. 740, 745-46, 473
S.E.2d 90, 92 (1996) (officers justified in frisking a passenger
who was jittery and failed to respond to officer's request to
keep his hands in view). Because the officer had a reasonable
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belief that appellant might have access to a weapon in the car,
we hold that the search for a possible weapon between the seats
was constitutionally permissible. Accordingly, the judgment of
the trial court is affirmed.
Affirmed.
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