Commonwealth of Virginia v. Michael (NMN) Norris,Jr ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bumgardner
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0254-98-3 JUDGE SAM W. COLEMAN III
JUNE 23, 1998
MICHAEL (NMN) NORRIS, JR.
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellant.
Clinton R. Shaw, Jr. (Office of the Public
Defender, on brief), for appellee.
Michael Norris, Jr. was indicted for possession of cocaine
in violation of Code § 18.2-248. Following an evidentiary
hearing, the trial court granted Norris' motion to suppress
cocaine recovered by police after his arrest on the ground that
police arrested him without probable cause. The Commonwealth
appeals the trial court's ruling pursuant to Code § 19.2-398(2).
We hold that the trial court erred in granting the motion to
suppress because the cocaine was discarded by Norris during his
flight from police officers and was not seized pursuant to
Norris' arrest. Accordingly, we reverse and remand.
Lynchburg Police Officer Brad Nesselroade and another
officer responded to a police report "regarding a particular
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
suspect" at the 2100 block of Main Street in Lynchburg. When
Nesselroade arrived at the scene, he saw Norris standing alone.
Norris fit the description of the suspect in the police report.
Upon seeing the officers approaching from their parked police
cruiser, Norris turned and began to walk away. Nesselroade
testified that Norris dropped a cellophane wrapper to the ground
as he walked away. Nesselroade placed Norris in custody
immediately upon seeing him drop the cellophane wrapper. After
the arrest, Nesselroade retrieved the wrapper and found cocaine
inside.
Nesselroade conceded that he did not know what was inside
the cellophane wrapper when he arrested Norris. The officer
explained that, based on his experience, he was aware that
cellophane wrappers were often used to conceal drugs.
Nesselroade further testified that he did not say anything to
Norris until after Norris dropped the wrapper and that, in his
"best estimation," he did not draw his service revolver while
apprehending Norris.
A bystander testified that the two officers exited the
police vehicle with their revolvers drawn, pointed them at
Norris, and commanded Norris to "get down." He stated that in
response to the officers' demands, Norris took "no more than two
steps" and lay down on the pavement. The bystander did not see
Norris discard the cellophane package.
The trial court granted Norris' motion to suppress the
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cocaine. The court held that Nesselroade lacked probable cause
to arrest Norris because at the time of the arrest the officer
had not ascertained the contents of the cellophane wrapper. The
Commonwealth appealed the trial court's ruling.
When the Commonwealth appeals a trial court's grant of a
motion to suppress, we must view the evidence in the light most
favorable to the defendant and grant it all reasonable inferences
fairly deducible therefrom. See Commonwealth v. Grimstead, 12
Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). We are bound by
the trial court's findings of historical fact unless plainly
wrong or without evidence to support it. Neal v. Commonwealth,
27 Va. App. 233, 237, 498 S.E.2d 422, 424 (1998) (citing Ornelas
v. United States, 517 U.S. 690, 691 (1996)). Also, we will
uphold the trial court's suppression ruling unless it is plainly
wrong or without evidence to support it. See Commonwealth v.
Thomas, 23 Va. App. 598, 609, 478 S.E.2d 715, 720 (1996).
The trial court erred in ruling that the cocaine had to be
suppressed because the arrest that followed after Norris
discarded the drugs was illegal. When the Fourth Amendment is
implicated, the exclusionary rule operates only to exclude
evidence that is seized or discovered as a result of an illegal
search or seizure. See Gilpin v. Commonwealth, 26 Va. App. 105,
112-13, 493 S.E.2d 393, 397 (1997). A seizure occurs when an
individual is either physically restrained or submits to a show
of authority. California v. Hodari D., 499 U.S. 621, 625 (1991);
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Ford v. City of Newport News, 23 Va. App. 137, 142, 474 S.E.2d
848, 850 (1996). An individual who flees from police and does
not submit to police authority is not "seized" under the Fourth
Amendment. Hodari D., 499 U.S. at 623-24; Woodson v.
Commonwealth, 245 Va. 401, 405, 429 S.E.2d 27, 29 (1993).
Therefore, contraband abandoned during flight before an accused
is physically restrained by police or submits to a show of police
authority is admissible into evidence. Hodari D., 499 U.S. at
624-25; Smith v. Commonwealth, 12 Va. App. 1100, 1104, 407 S.E.2d
49, 52 (1991).
Here, the evidence clearly established that Norris abandoned
the cocaine before the officer arrested him. Thus, the cocaine
was not seized or discovered as a result of Norris' arrest, and
the exclusionary rule does not require the suppression of the
cocaine. See Hodari D., 499 U.S. at 625.
Norris contends on brief, and contended at the suppression
hearing, that he was unlawfully seized before he discarded the
cocaine. Norris argued that the evidence, viewed in the light
most favorable to him, proved that the officers drew their
weapons and ordered him to "get down" and that, in response to
the officers' show of authority, he surrendered himself and
relinquished the cocaine.
We do not consider Norris' argument in this appeal. The
only issue before us is whether the trial court's suppression
order, which was based on the court's ruling that Norris was
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illegally arrested after the cocaine was discarded, was
reversible error. In reaching its decision, the trial court did
not make findings of historical fact or resolve the conflicts in
the evidence as to whether the officers had drawn their weapons
or whether an earlier seizure had occurred. Accordingly, because
the trial court has not resolved the credibility or factual
issues and has not ruled upon whether Norris was seized without
probable cause prior to discarding the cocaine, we do not address
that issue.
For the foregoing reasons, we reverse the trial court's
suppression of the cocaine and remand the case for further
proceedings in accordance with this opinion.
Reversed and remanded.
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