Michael Maurice White v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia
MICHAEL MAURICE WHITE
MEMORANDUM OPINION * BY
v. Record No. 2091-02-1 JUDGE ROBERT P. FRANK
JUNE 24, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
S. Bernard Goodwyn, Judge
Monte E. Kuligowski for appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General),
for appellee.
Michael Maurice White (appellant) was convicted in a bench
trial of possession of a firearm while in possession of drugs, in
violation of Code § 18.2-308.4, and of possession of cocaine with
the intent to distribute, in violation of Code § 18.2-248. On
appeal, he contends the trial court erred in finding him guilty of
these offenses because appellant was illegally seized. 1 For the
reasons stated, we affirm the judgments of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
This appeal is presented in an unusual posture because at
trial the Commonwealth did not object to the failure of
appellant to file a motion to suppress under Code § 19.2-266.2
nor to appellant's failure to object to the admissibility of the
evidence during the testimony. See Sykes v. Commonwealth, 37
Va. App. 262, 266 n.1, 556 S.E.2d 794, 796 n.1 (2001).
BACKGROUND
Officer B. W. Shearin was on routine patrol on January 16,
2002, driving his patrol car in the area of Grady Crescent. As he
turned a corner, he saw appellant and another man standing in a
parking lot of an apartment complex posted with "No Trespassing"
signs. One sign was within "a few feet" of appellant.
The apartment management had requested assistance from the
police in enforcing its trespass policy. Officer Shearin
characterized the apartment complex as an area of "criminal
activity." 2
As Officer Shearin drove closer, he saw appellant reach his
hand down toward the back tire of the vehicle beside which
appellant was standing. The officer characterized this activity
as "suspicious." When appellant stood up again, the officer could
see both of appellant's hands. The officer parked and got out of
his car. He approached appellant and the other man, asking, "how
are you all doing?" He also asked if either of them lived on the
property.
At this point, appellant "leaned over his [own] shoulder,"
squinted, and "appeared to pick a number off a door." He was
looking at apartment numbered "59" on Grady Crescent. When
2
During his motion to strike the evidence, appellant's
counsel conceded the area was "a place for known drug activity."
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appellant turned back around, he told the officer that he lived at
59 Grady Crescent.
Officer Shearin then asked appellant if he had any
identification, and appellant responded he did not. Officer
Shearin asked appellant for "his information." Appellant replied
his name was Michael Maurice Smith and that he lived at 59 Grady
Crescent.
As Officer Shearin began to write down the information in his
notebook, appellant ran away. The officer ran after him. Jeffrey
Andrews, a citizen, saw the chase, stopped his truck, and pursued
appellant. Officer Constanza arrived and followed Shearin and
appellant. As they were running, Andrews saw appellant toss a
chrome metallic object into the storm drain. Appellant then
slipped and fell into the street. Officer Shearin was "right
behind him."
After he fell, appellant lay face down with his arms
underneath him, in the area of his stomach. Appellant "was moving
back and forth." Officer Shearin repeatedly ordered appellant to
show his hands as he grabbed appellant's arm. Officer Johnson,
who had arrived at the scene earlier, tried to get the other arm
from underneath appellant. The officers were "pulling him."
Appellant was "rocking up and he was going against [the officers]
putting [his arms] back down underneath him." Finally, the
officers pulled appellant's arms from under his body.
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As the officers stood appellant upright, they found "two bags
of suspected marijuana and a plastic bag with six individually
packaged suspected cocaine rocks on the concrete where
[appellant's] hands and stomach were right there." Another
officer recovered a .25 caliber, automatic handgun from the storm
drain.
Appellant did not file a motion to suppress the cocaine or
the firearm, pursuant to Code § 19.2-266.2, nor did he object to
the introduction of these items. At the conclusion of the
Commonwealth's case-in-chief, however, appellant moved to strike
the Commonwealth's evidence because he was illegally detained. He
argued the police had no reasonable suspicion to seize him. The
Commonwealth responded to the Fourth Amendment argument, without
objecting to appellant's failure to file a motion under Code
§ 19.2-266.2 or to appellant's failure to object to the
introduction of the drugs and firearm. The trial court denied the
motion to strike.
After appellant rested his case, he renewed his motion to
strike the evidence, again based on his Fourth Amendment argument
that the police had no reasonable suspicion to seize him. Again,
the trial court denied the motion.
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ANALYSIS
On brief, appellant concedes the initial encounter was
consensual. 3 However, he contends that the police had no
reasonable suspicion to detain appellant after he fled and fell
to the ground. Appellant does not contend he was seized prior
to his fall.
Although the trial court found appellant's Fourth Amendment
rights were not violated, it made no factual findings relevant
to this issue. However, "[o]n 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)
(quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d
415, 418 (1987)). We review de novo the trial court's
application of legal standards such as probable cause and
reasonable suspicion. Shears v. Commonwealth, 23 Va. App. 394,
398, 477 S.E.2d 309, 311 (1996).
3
A consensual encounter occurs when police officers
approach persons in public places "'to ask them questions,'"
provided "'a reasonable person would understand that he or she
could refuse to cooperate.'" United States v. Wilson, 953 F.2d
116, 121 (4th Cir. 1991) (quoting Florida v. Bostick, 501 U.S.
429, 431 (1991)); see also Richards v. Commonwealth, 8 Va. App.
612, 615, 383 S.E.2d 268, 270 (1989). Such encounters "need not
be predicated on any suspicion of the person's involvement in
wrongdoing" and remain consensual "as long as the citizen
voluntarily cooperates with the police." Wilson, 953 F.2d at
121.
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It is undisputed that appellant was seized when the
officers grabbed his arms while he was lying on the ground. Our
analysis, then, must focus on whether the police had reasonable
suspicion to seize him at that time.
In order to justify the brief seizure of a
person by an investigatory stop, a police
officer need not have probable cause;
however, he must have "a reasonable
suspicion, based on objective facts, that
the [person] is involved in criminal
activity." Brown v. Texas, 443 U.S. 47, 51
(1979); accord Zimmerman [v. Commonwealth],
234 Va. [609,] 611, 363 S.E.2d [708,] 709;
Leeth [v. Commonwealth], 223 Va. [335,] 340,
288 S.E.2d [475,] 478. In determining
whether a police officer had a
particularized and objective basis for
suspecting that the person stopped may be
involved in criminal activity, a court must
consider the totality of the circumstances.
United States v. Cortez, 449 U.S. 411,
417-18 (1981); see Zimmerman, 234 Va. at
612, 363 S.E.2d at 709; Leeth, 223 Va. at
340, 288 S.E.2d 478.
Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722-23
(1997). The totality of the circumstances in this case supports
a finding of reasonable suspicion.
First, the officer observed appellant in a high crime area,
acting suspiciously. While leaning down toward a car tire could
involve no illegal intentions, innocent behavior can be
suspicious. See Terry v. Ohio, 392 U.S. 1, 22-23 (1968) (noting
that looking in store windows is not necessarily suspicious, but
can become suspicious based on the circumstances). Leaning down
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toward a car tire, while in a high crime area, just as a
uniformed officer comes into view, can be considered suspicious.
Additionally, when the officer approached appellant, who
was in a posted "no trespassing" area, he could not provide an
address in the housing complex except by squinting at a building
behind him and giving the officer that address. While this
behavior occurred during a consensual encounter, circumstances
that develop during such an encounter can provide reasonable
suspicion to detain a person. See, e.g., Dickerson v.
Commonwealth, 35 Va. App. 172, 182, 543 S.E.2d 623, 628 (2001),
aff'd, ___ Va. ___, ___ S.E.2d ___ (June 6, 2003) (explaining
that probable cause can develop during a consensual encounter).
While a person can forget his addresses, such "forgetfulness"
while standing in a marked "no trespassing" area can be
suspicious, especially when, as here, the person could not
provide identification to confirm he actually lived at that
address.
Another circumstance supporting the trial court's finding
of reasonable suspicion is appellant's flight. On appeal,
appellant argues his flight was simply an exercise of his right
to end a consensual encounter. While he is correct that he had
the right to end the encounter with the officer, his manner in
ending that encounter was suspicious.
Flight clearly is suspicious behavior. As the Supreme
Court noted, "Headlong flight -– wherever it occurs -– is the
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consummate act of evasion: it is not necessarily indicative of
wrongdoing, but it is certainly suggestive of such." Illinois
v. Wardlow, 528 U.S. 119, 124 (2000). While appellant had a
right to end the encounter, his sudden flight while Officer
Shearin was writing down his information constituted suspicious
behavior.
Appellant's behavior when he fell also provided the
officers with another circumstance on which to develop
reasonable suspicion of criminal wrongdoing. The placement of
appellant's hands and his movement while on the ground were
unusual, suggesting he was attempting to remove something from
his clothing. We have found previously that such behavior can
provide reasonable suspicion for the police to act. See
Welshman v. Commonwealth, 28 Va. App. 20, 34-35, 502 S.E.2d 122,
129 (1998) (en banc).
As in the recently decided case of Whitfield v.
Commonwealth, the totality of the circumstances here provided
the officer with "a particularized and objective basis for
suspecting that the person stopped may be involved in criminal
activity." 265 Va. 358, 361, 576 S.E.2d 463, 465 (2003). As in
Whitfield, Officer Shearin observed appellant "apparently
trespassing" in a high crime area, and appellant ran away. Id.
at 362, 576 S.E.2d at 465. Officer Shearin had the additional
factors, missing in Whitfield, of appellant's reaching to the
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tire after he saw the officer and appellant's strange behavior
after he fell.
We find, based on the totality of the circumstances,
appellant was not illegally seized.
Affirmed.
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