Virginia Ann Ewell v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Overton
Argued at Norfolk, Virginia
VIRGINIA ANN EWELL
MEMORANDUM OPINION * BY
v. Record No. 1730-95-1 JUDGE RICHARD S. BRAY
OCTOBER 22, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
William F. Burnside for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Virginia Ann Ewell (defendant) was convicted for possession
of cocaine in violation of Code § 18.2-250. She complains on
appeal that the trial court erroneously declined to suppress
evidence resulting from an unlawful seizure of her person. We
disagree and affirm the conviction.
Upon appeal from a trial court's denial of a motion to
suppress, we must view the evidence in the light most favorable
to the prevailing party, granting to it all reasonable inferences
fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va.
App. 1066, 1067, 407 S.E.2d 47, 48 (1991); Reynolds v.
Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 663 (1990).
Determinations of reasonable suspicion and probable cause require
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
de novo review on appeal. Ornelas v. United States, 116 S. Ct.
1657, 1663 (1996). However, a trial court's "findings of
historical fact" should be reviewed only for "clear error."
Moreover, "due weight" must be given to "inferences drawn from
those facts by resident judges and local law enforcement
officers," and "a trial court's finding that [an] officer was
credible and [that his or her] inference was reasonable." Id.
In this instance, the historical facts are uncontroverted.
At approximately 12:30 a.m. on December 4, 1993, Virginia Beach
Police Officer Andrew J. Spiess was acting as a private "security
guard" at the Friendship Village Apartments, "enforcing trespass
codes and other city, state traffic codes." Spiess, who had been
employed in a "part-time capacity" for several months to "cut the
crime down" in the complex, also patrolled the area incidental to
his routine police duties, and was "familiar with the majority of
the residents . . . [as well as] the vehicles" usually on the
property. Operating a marked police vehicle and in uniform, he
entered the parking area of the apartments. "[N]o one [was] out"
at "that time of night," and Spiess noticed a vehicle "next to an
apartment . . . suspected strongly of being high narcotics
. . . ." The car "immediately started up and proceeded to leave"
and, as it "pulled by," Spiess recognized neither the driver nor
the vehicle. A lighted "No Trespassing" sign was posted "right
at the entrance," and Spiess, suspecting that the operator,
defendant, was a trespasser, "activated [his] blue lights" and
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signaled her to "pull[] over."
Once stopped, Spiess approached, "shined [his] flashlight
into the vehicle," and observed an open bottle of alcohol and a
beer can "fashioned" in a manner consistent with a crack smoking
device on the "floorboard," and a "wooden clothespin" (a device
"commonly used to hold a crack pipe"), "charred at one end," atop
a purse resting on the front seat. Defendant acknowledged
ownership of the purse which contained two "crack pipes," each
with cocaine residue.
The sole issue on appeal is whether the investigatory stop
of defendant's vehicle was supported by the requisite reasonable
suspicion.
It is well established that "[w]hen the police stop a
vehicle and detain its occupants, the action constitutes a
'seizure' of the person for fourth amendment purposes." Murphy
v. Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989).
However, not all seizures are unlawful. The Fourth Amendment
prohibits only those which are "unreasonable." Terry v. Ohio,
392 U.S. 1, 9 (1968); Iglesias v. Commonwealth, 7 Va. App. 93,
99, 372 S.E.2d 170, 173 (1988). A brief detention to investigate
"incipient criminal activity" is not unreasonable if "supported
by the officer's reasonable and articulable suspicion that
criminal activity may be afoot." Layne v. Commonwealth, 15 Va.
App. 23, 25, 421 S.E.2d 215, 216 (1992); see Terry, 392 U.S. at
21, 30. "Actual proof that [such] activity is afoot is not
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necessary; the record need only show that it may be afoot."
Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77, 79
(1992).
"There is no 'litmus test' for reasonable suspicion."
Castaneda v. Commonwealth, 7 Va. App. 574, 580, 376 S.E.2d 82, 85
(1989) (reh'g en banc) (citing Terry, 392 U.S. at 21). "In
determining whether an 'articulable and reasonable suspicion'
justifying an investigatory stop of [a] vehicle exists, courts
must consider 'the totality of the circumstances--the whole
picture.'" Murphy, 9 Va. App. at 144, 384 S.E.2d at 128
(quoting United States v. Sokolow, 490 U.S. 1, 8 (1989)).
"Compliance with the fourth amendment depends . . . on 'an
objective assessment of an officer's actions in light of the
facts and circumstances then known to him,'" Bosworth v.
Commonwealth, 7 Va. App. 567, 570, 375 S.E.2d 756, 758 (1989)
(quoting Scott v. United States, 436 U.S. 128, 136 (1978)),
viewed "objectively through the eyes of a reasonable police
officer with the knowledge, training, and experience of the
investigating officer." Murphy, 9 Va. App. at 144, 384 S.E.2d at
128.
Spiess was a police officer very familiar with the vicinity
of the apartments, a majority of its residents, and those
vehicles usually present on the property. 1 A "No Trespassing"
1
In Lowery v. Commonwealth, 9 Va. App. 314, 388 S.E.2d 265
(1990), we concluded that a police officer's observation in
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sign was conspicuously displayed at the entrance, and Spiess was
aware of and alert to related violations and other criminal
activity in the proximity. Defendant and her car, both unknown
to Spiess, were observed in the parking area at a late hour,
located near an apartment with suspected narcotic connections.
Defendant "immediately started up and proceeded to leave" upon
the appearance of the marked police vehicle.
Viewing such circumstances objectively, from the perspective
of the police officer, we find that Spiess initiated an
investigatory stop, properly supported by the reasonable
suspicion that defendant was a trespasser on the premises. The
trial court, therefore, correctly declined to suppress the
disputed evidence.
Accordingly, we affirm the conviction.
Affirmed.
Virginia of a "Florida rental vehicle owned by a local Florida
rental agency," combined with the "officer's knowledge that such
agencies generally prohibit their automobiles from being taken
outside of the state," justified a "reasonable suspicion that the
vehicle is stolen or may have been removed from Florida without
proper authority." Id. at 319, 388 S.E.2d at 268 (emphasis
added).
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