Leon Darnell Parker v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
LEON DARNELL PARKER
MEMORANDUM OPINION * BY
v. Record No. 0319-96-2 JUDGE ROSEMARIE ANNUNZIATA
APRIL 8, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
briefs), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Leon Darnell Parker was indicted on the charge of possession
of cocaine with intent to distribute. See Code § 18.2-248. The
trial judge denied Parker's motion to suppress the cocaine and,
after a bench trial, found Parker guilty of possession of cocaine
in violation of Code § 18.2-250. In this appeal, Parker contends
that the trial judge erred in denying his motion to suppress.
Because the evidence was properly admitted, we affirm the
conviction.
I.
The evidence proved that on July 13, 1995, Officer Michael
J. Kurisky of the Richmond Police Department was driving through
the 2100 block of Creighton Road in an area he "personally
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
consider[ed]" to be a drug market. He and two other officers,
who were his passengers, observed a group of men standing next to
a car with its trunk open. When the men saw the officers,
someone immediately shut the trunk. The men began dispersing.
The two officers exited Kurisky's vehicle.
Kurisky testified that Parker turned and placed an item in
the waistband of his shorts and began walking away on the
sidewalk. Kurisky put his vehicle in reverse and drove along the
street until he was beside Parker. Parker looked toward the
police vehicle, turned, and began walking down the sidewalk in
the opposite direction. Accordingly, Kurisky reversed his
direction and drove to where the other officers were with some of
the other men. Parker, aware that Kurisky was following behind
him, turned again, changed direction again and began walking in
the direction from which he came. He then entered the "posted"
property belonging to Richmond Redevelopment and Housing
Authority. As Parker headed toward the apartments, Kurisky drove
his vehicle approximately forty feet off the road to follow
Parker. Kurisky testified he was aware that outsiders often came
onto public housing property to sell illegal drugs. Kurisky also
made clear the police regularly enforced the no trespassing
provisions of the public housing property and frequently drove
"up on the cuts" to investigate possible trespassing. Kurisky
also stated that he had witnessed other individuals, as the
police approached, attempt to conceal contraband, as had
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appellant, in their shorts. Kurisky exited his vehicle and asked
Parker if Parker lived there. Parker stopped walking and replied
that he did not but that his friend did live there. Kurisky
asked if Parker had any drugs or guns on his person, and Parker
replied that he did not. Kurisky asked Parker if he "could pat
him down." Parker did not answer but instead raised his hands
into the air. Kurisky frisked Parker and discovered no
contraband.
A second officer then approached from Parker's right-hand
side and asked Parker "if he had anything in his crotch." Parker
"grabbed his basketball shorts and boxer shorts and started, in
very exaggerated motions, pulling them to the side, up and down,
shaking them in and out." When Parker was finished, Kurisky
could see "a pink object through the boxer shorts material"
between Parker's skin and boxer shorts. Kurisky testified that
the object was approximately the shape and size of a "big jaw
breaker." Kurisky testified that he suspected the object to be
crack cocaine because baggies containing cocaine are often pink,
brown, or clear, and because it was "balled up in a tight little
ball." Kurisky placed his hand on the object and felt it. He
testified that it was crack cocaine. Kurisky arrested Parker and
seized the item, which was a plastic lunch bag containing 18 red
ziplock baggies, each containing a substance that tested to be
crack cocaine.
II.
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Parker argues that when the police officer drove his vehicle
up to him and questioned him, the officer unlawfully seized him.
Parker asserts that the evidence obtained thereafter should have
been excluded from the evidence. We disagree. Even if Kurisky's
presence was intimidating to Parker, it did not constitute a
seizure. See Baldwin v. Commonwealth, 243 Va. 191, 199, 413
S.E.2d 645, 649-50 (1992).
Furthermore, even assuming Parker was seized, we hold that
Parker's rights were not violated when the officer approached him
because the officer had a reasonable suspicion to conduct a
Terry stop and pat-down search.
"To make a legal investigatory stop, an officer must possess
a reasonable, articulable suspicion that 'criminal activity may
be afoot.'" Buck v. Commonwealth, 20 Va. App. 298, 302, 456
S.E.2d 534, 536 (1995) (citation omitted). In Buck, police
officers observed the defendant get into a car as a passenger,
ride in the car around a block, and exit the vehicle only one
block away from where he entered the car. See id. at 303, 456
S.E.2d at 536. When the officers approached the defendant, he
put his fist near his mouth and fled. See id. This Court
stated,
[w]hen the [defendant] appeared to have put
something in his mouth and fled from the
officers, after they had observed him enter a
car, circle the block, and then exit the car
in an area known as an open drug market, they
had reason to believe [defendant] had just
bought or sold drugs. Therefore, the
officers were justified in stopping the
[defendant] to investigate his activity.
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Id.At trial, Kurisky testified that he saw Parker and the
other men in an area he considers to be an open air drug market.
The men looked at the officers, immediately shut the trunk of
the car, and dispersed. After Kurisky saw Parker put an item in
the waistband of his shorts, he followed Parker. Kurisky
testified that he approached Parker because Parker was "being
very evasive."
We hold that these facts would have justified a stop of
Parker. See id.; see also Hatcher v. Commonwealth, 14 Va. App.
487, 490, 419 S.E.2d 256, 258 (1992) (stating that officer had
reasonable suspicion after he observed "highly evasive maneuvers"
by a car and appellant began to walk away after the officer
activated his emergency lights). Therefore, even if Kurisky's
conduct resulted in a seizure of Parker, the seizure was
supported by a reasonable suspicion that Parker was engaged in
illegal activity.
III.
Parker next contends that the officer's seizure of the
cocaine from his shorts was unlawful. We disagree.
To justify a warrantless seizure of an item in plain view,
the Commonwealth must show that (1) the officer was "lawfully in
a position to view and seize the item," and (2) it was
"immediately apparent that the item may be evidence of a crime."
Carson v. Commonwealth, 12 Va. App. 497, 501, 404 S.E.2d 919,
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921, aff'd on reh'g en banc, 13 Va. App. 280, 410 S.E.2d 412(1991), aff'd, 244 Va. 293, 421 S.E.2d 415 (1992). Parker argues
that the Commonwealth failed to prove that it was immediately
apparent that the pink ball in his shorts was evidence of a
crime.
In Carson, this Court held that the officer had probable
cause to seize a two-inch straw. See id. at 503, 404 S.E.2d at
923. We reasoned that the "distinctive character of the straw
coupled with the officer's experience 'would warrant a [person]
of reasonable caution' to believe that the straw might be useful
as evidence of a crime." Id. at 502, 404 S.E.2d at 922 (citation
omitted). The "distinctive character" of the straw made it
highly unlikely that it was possessed for a legitimate use. See
id. We distinguished Harris v. Commonwealth, 241 Va. 146, 400
S.E.2d 191 (1991), where the Supreme Court held that an officer's
knowledge of a possible criminal use of a film canister did not
suffice because "law-abiding citizens, on a daily basis, also use
film canisters to store film, which is a legitimate use." Id. at
154, 400 S.E.2d at 196.
In this case, Kurisky testified that he was "within normal
conversing distance" from Parker when he saw a pink object that
was the size of a "jaw breaker" under Parker's boxers at his
waist. Kurisky stated that before he touched the object, he
suspected that it was cocaine because "[p]ink baggies are often
one of the colors of baggies used to package . . . crack cocaine;
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and it being balled up in a tight little ball . . . I thought
that it was [cocaine]." Kurisky stated that his suspicion was
based on his training and experience because he had frequently
"recovered crack cocaine packaged in large baggies--well, a large
bag surrounding numerous smaller, individually wrapped ziplock
baggies that are often pink in color, brown in color, or clear."
We hold that the "distinctive character" of the pink
object, coupled with Parker's suspicious conduct in trying to
evade police and to mislead the officer about the object
concealed between appellant's skin and boxer shorts and the fact
that it occurred in an area known for drugs, provided Kurisky
with probable cause to seize the object from Parker's waistband.
Because the evidence was lawfully obtained, it was properly
admitted at trial. Therefore, we affirm the conviction.
Affirmed.
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Benton, J., dissenting.
I would hold that the evidence proved that the police
officer lacked a reasonable articulable suspicion to seize Leon
Parker. Therefore, I dissent.
When Officer Kurisky and the other two officers saw a group
of men standing around a car, they observed no activity that
indicated criminal conduct was occurring. Certainly, closing the
trunk of the car was not criminal conduct. Officer Kurisky
testified that he followed Parker because he saw Parker place an
"item" in the waistband of his shorts. His testimony did not
otherwise describe the item.
Driving his vehicle, Officer Kurisky then pursued Parker,
who was walking on the sidewalk, and continued to pursue Parker
when Parker changed directions. When Parker walked off the
sidewalk toward an apartment, Officer Kurisky drove forty feet
off the street onto the land. He then confronted Parker and
began to question him.
The principle is long standing that "whenever a police
officer accosts an individual and restrains [that person's]
freedom to walk away, [the officer] has 'seized' that person."
Terry v. Ohio, 392 U.S. 1, 16 (1968). Thus, for purposes of the
Fourth Amendment, a seizure occurs when the "circumstances . . .
amount to a show of official authority such that 'a reasonable
person would have believed that he was not free to leave.'"
Florida v. Royer, 460 U.S. 491, 502 (1983) (quoting United States
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v. Mendenhall, 446 U.S. 544, 554 (1980)).
The officer's pursuit of Parker after Parker reversed his
direction and the officer's further pursuit by driving his
vehicle off the roadway onto the yard was an intimidating,
persistent show of authority. This is not the passive conduct
demonstrated in Baldwin v. Commonwealth, 243 Va. 191, 413 S.E.2d
645 (1992), where the police officer used his light at night and
called to people in a parking lot. See id. at 193-94, 413 S.E.2d
at 646-47. Here, the officer pursued Parker and confronted him
after taking the extraordinary action of driving off the street
onto the apartment grounds. When Officer Kurisky got out of his
car and questioned Parker whether he lived in the apartment and
whether he had guns or weapons, Parker was seized.
The seizure was unlawful because the officer lacked a
reasonable articulable suspicion to stop and frisk Parker.
Officer Kurisky testified only that he "personally consider[ed]
that area to be an open air drug market." Furthermore, his
testimony about the car did not establish drug activity and did
not directly involve Parker. The officer's testimony of the
facts and observations that gave rise to the stop must amount to
more than an "inchoate and unparticularized suspicion or
'hunch.'" Terry, 392 U.S. at 27. "When examining the officer's
articulable reasons for stopping a person, we examine the
objective reasonableness of the officer's behavior rather than
the officer's subjective belief that the conduct indicates
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criminal activity." Riley v. Commonwealth, 13 Va. App. 494,
496-97, 412 S.E.2d 724, 725 (1992). The officer did not testify
as to any conduct by Parker that gave rise to a reasonable
suspicion that Parker was engaged in criminal conduct. His stop
of Parker stands only upon his observation that Parker put some
"item" in his pants as he walked away. "Manifestly, this conduct
falls below activity necessary to justify a reasonable suspicion
that a violation of law had occurred or was occurring."
Zimmerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 710
(1988); see also Riley, 13 Va. App. at 497-99, 412 S.E.2d at
726-27; Smith v. Commonwealth, 12 Va. App. 1100, 407 S.E.2d 49(1991); Goodwin v. Commonwealth, 11 Va. App. 363, 398 S.E.2d 690(1990).
Because the record proved insufficient justification for the
stop that led to the discovery of the cocaine, I would reverse
the trial judge's refusal to suppress the evidence.
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