Kelvin L. Pleasants, a/k/a v. CW ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Baker
Argued at Norfolk, Virginia
KELVIN L. PLEASANTS, A/K/A
KELVIN LEE PRICE, S/K/A
KELVIN LELAND PLEASANT
MEMORANDUM OPINION * BY
v. Record No. 1321-98-2 JUDGE ROBERT P. FRANK
OCTOBER 26, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Anthony G. Spencer (Michael Morchower;
Morchower, Luxton & Whaley, on briefs), for
appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Kelvin L. Pleasants (appellant) appeals his convictions of
possession of cocaine with intent to distribute, possession of a
firearm while simultaneously possessing cocaine, possession of a
firearm after having been convicted of a felony, and carrying a
concealed weapon after a bench trial on April 13, 1998. On
appeal, appellant challenges the trial judge's denial of his
motion to suppress the evidence. We find that the trial judge did
not err in denying the motion to suppress, and affirm the
convictions.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
On March 26, 1997, Detective Ford of the Richmond Police
Department received information from a confidential reliable
informant (informant) 1 that within the preceding twenty-four
hours, a black male known as "KP" sold what the informant
recognized to be crack cocaine at 4216 Old Brook Road, Apartment
Three. Detective Ford applied for a search warrant for 4216 Old
Brook Road, Apartment Three, based on the informant's
information. The search warrant affidavit stated that "KP" was
a black male with dark skin, between 5'5" and 5'7" tall, and
weighed 185 to 200 pounds. "KP" was described as driving one of
three vehicles that he parked behind the apartment: 1) a
two-tone gray minivan, 2) a silver Cadillac Seville, or 3) a
maroon Cadillac with a white top. According to the informant,
"KP" sold drugs from the apartment or walked out to the parking
lot and sold drugs from one of the vehicles, usually the
minivan. The search warrant was issued on March 26, 1997,
permitting officers to search 4216 Old Brook Road, Apartment
Three, for "cocaine, records, ledgers, monies, firearms,
packaging material, scales, and any other material used in
connection with the distribution of the drug."
Officers Dunfee and Gadson were part of the team assigned
to execute the search warrant. They parked their marked police
1
Appellant does not contest the reliability of the
informant.
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unit across the street from the apartment building while they
waited for the other members of the search warrant team to
arrive. A two-tone gray minivan pulled into the apartment
parking lot. Officers Gadson and Dunfee saw appellant exit the
minivan carrying a white bag. Appellant entered 4216 Old Brook
Road, but the officers were unable to determine if he entered
Apartment Three because the building contained four separate
apartments. The entrances to the separate apartments were not
visible from outside the building. The officers did not execute
the search warrant for Apartment Three because the other members
of the search warrant team had not yet arrived. Appellant
emerged from the apartment building fifteen to twenty minutes
later carrying a white bag and got into the same minivan. The
officers were still across the street. They followed the
minivan and activated their emergency lights and siren after the
van left the apartment parking lot. Appellant continued to
drive for three miles before pulling his vehicle off of the
road. Appellant did not commit any traffic violation.
Officer Gadson approached the driver's side of the minivan,
and attempted to tell appellant that he was the target of a
search warrant. Appellant was belligerent and began using
abusive language. As a result of appellant's demeanor, Officer
Gadson asked him to exit the minivan. Appellant refused to exit
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the vehicle. Officer Gadson attempted to assist appellant from
the minivan, and a struggle ensued. The officers handcuffed
appellant because he continued to struggle.
Once the officers handcuffed appellant, Officer Gadson did
a "quick check" around the driver's seat of the minivan to look
for weapons. When he looked over the seat, he saw an open white
bag containing marijuana in plain view. The officers arrested
appellant for possession of the marijuana. They conducted a
search of the van incident to the arrest and discovered a "fanny
pack" inside the white bag. The fanny pack contained a gun,
cocaine, scales and currency.
II. ANALYSIS
Appellant contends that the trial court erred in denying
his motion to suppress the evidence. Finding no error, we
affirm the trial court's denial of the motion to suppress, and,
therefore, affirm the convictions.
"On an appeal from a trial court's denial of a motion to
suppress, the burden is on the appellant to show that the trial
court's decision constituted reversible error." Harris v.
Commonwealth, 27 Va. App. 554, 561, 500 S.E.2d 257, 260 (1998)
(citing Stanley v. Commonwealth, 16 Va. App. 873, 874, 433
S.E.2d 512, 513 (1993)). "We view the evidence in the light
most favorable to the prevailing party, granting to it all
reasonable inferences fairly deducible therefrom." Id. (citing
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
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47, 48 (1991)). "We review the trial court's findings of
historical fact only for 'clear error,' but we review de novo
the trial court's application of defined legal standards to the
particular facts of a case." Id. (citing Shears v.
Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996);
Ornelas v. United States, 517 U.S. 690, 697 (1996)).
"If a police officer has reasonable 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)
(citing Terry v. Ohio, 392 U.S. 1, 2 (1968)). "The
justification for stopping the individual need not rise to the
level of probable cause, but must be more than an 'inchoate and
unparticularized suspicion or "hunch."'" Id. (quoting Terry,
392 U.S. at 27).
The Terry rule applies to investigatory stops of
automobiles provided the officer has a reasonable articulable
suspicion, based upon objective facts, that the individual is
involved in criminal activity. See Brown v. Commonwealth, 17
Va. App. 694, 697-98, 440 S.E.2d 619, 621 (1994) (citing
Delaware v. Prouse, 440 U.S. 648, 663 (1979)). During a lawful
stop of an automobile, a police officer may be permitted to
require the driver to exit the vehicle which "'diminishes the
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possibility, otherwise substantial, that the driver can make
unobserved movements; this, in turn, reduces the likelihood that
the officer will be the victim of an assault.'" Hatcher v.
Commonwealth, 14 Va. App. 487, 490-91, 419 S.E.2d 256, 258
(1992) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 110
(1977)). Officers may use handcuffs during an investigatory
stop provided that their use is "'reasonably necessary to
maintain the status quo and protect officer safety.'" United
States v. Crittendon, 883 F.2d 326, 329 (4th Cir. 1989) (quoting
United States v. Taylor, 857 F.2d 210, 213 (4th Cir. 1988)).
"If the police officer possesses a
reasonable belief based on 'specific and
articulable facts which . . . reasonably
warrant' the officer in believing the
suspect is dangerous and . . . may gain
immediate control of weapons,'" the officer
may conduct a Terry frisk of the suspect
himself and search the accessible areas of
the passenger compartment of the car in
which a weapon might be hidden.
Stanley, 16 Va. App. at 875, 433 S.E.2d at 514 (quoting Michigan
v. Long, 463 U.S. 1032, 1049-50 (1983) (citing Terry, 392 U.S.
at 21)).
In Williams v. Commonwealth, 4 Va. App. 53, 65, 354 S.E.2d
79, 85-86 (1987), we held that officers had reasonable
articulable facts upon which to base a Terry stop of the
defendant as he drove away from a residence which was the
subject of a search warrant. In Williams, the police obtained
information from an informant that the defendant possessed and
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was engaged in the distribution of contraband. See id. A
search warrant was issued for the residence from which the
defendant was said to be distributing the contraband. See id.The officer's affidavit in support of the search warrant
application described the defendant's vehicle and stated that a
check of the license plate number of the car parked at the
residence showed that the car belonged to the defendant. See
id. at 59, 354 S.E.2d at 82. The police also were aware that
the defendant had a history of drug related offenses. See id.
at 65, 354 S.E.2d at 85-86. We held that these facts
constituted a sufficient basis under Terry upon which to stop
the defendant as he drove away from the residence. See id.While the facts in Williams were more compelling than the
facts of this case, we hold that the information in the search
warrant was sufficient to establish reasonable suspicion upon
which to base a Terry stop of appellant. Williams does not
require that the identity of the subject of the Terry stop be
known to the police. Prior to stopping appellant, Officers
Dunfee and Gadson were aware that a search warrant was issued
for 4216 Old Brook Road, Apartment Three, based on the
informant's information that "KP" sold drugs from the apartment.
Appellant drove a two-tone gray minivan as described by the
informant and detailed in the search warrant. Further,
appellant fit the general description of "KP" set forth in the
search warrant. We hold that this information provided the
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officers with reasonable articulable suspicion to detain
appellant for questioning pursuant to Terry.
Once the officers stopped appellant, he became belligerent
and began using abusive language. At that point, the officers
asked appellant to exit the vehicle. Under Mimms, we hold that
they were justified in asking appellant to exit the vehicle as
it was clear from his demeanor that he might pose a threat to
the officers' safety if permitted to remain in the vehicle where
the officers' view of him would be partially obstructed. For
the same reasons, we hold that the officers were entitled to
handcuff appellant once he was outside the vehicle as he
continued to struggle with the officers. Crittendon clearly
contemplates the use of handcuffs to ensure officer safety or to
maintain the status quo during an investigative stop. Finally,
we hold that Officer Dunfee's "quick check" around the driver's
seat for weapons was permissible given appellant's demeanor
during the investigative stop. Appellant's actions could
reasonably warrant the belief that he was dangerous and could
gain control of weapons. It was during the "quick check" that
Officer Dunfee saw marijuana in plain view. The other
contraband and weapons were discovered pursuant to a search
incident to arrest based on the possession of marijuana.
We hold, therefore, that the trial court properly denied
appellant's motion to suppress the evidence as a valid
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investigative stop pursuant to Terry led to the discovery of the
evidence.
III. CONCLUSION
For these reasons, we hold that the trial court properly
denied appellant's motion to suppress the evidence, and,
therefore, affirm appellant's convictions.
Affirmed.
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