Danny Lavon Gayles v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
DANNY LAVON GAYLES
MEMORANDUM OPINION * BY
v. Record No. 1382-95-2 JUDGE JAMES W. BENTON, JR.
AUGUST 13, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge
Steven D. Benjamin (Betty Layne DesPortes,
Steven D. Benjamin and Associates, on
briefs), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Danny Lavon Gayles appeals his conviction for possession of
cocaine. Code § 18.2-250. He contends the trial judge erred in
admitting evidence obtained in violation of the Fourth Amendment.
We agree and reverse his conviction.
Viewed in the light most favorable to the Commonwealth, the
party prevailing below, Richmond v. Commonwealth, 22 Va. App.
257, 260, 468 S.E.2d 708, 709 (1996), the evidence proved that on
January 9, 1995, at 2:00 a.m., two Henrico County police officers
responded in a marked vehicle to a report of three "suspicious
subjects" at the Henrico Arms Apartment Complex. One of the
officers testified that when they arrived at the complex, he saw
three males standing on a sidewalk at a corner in front of an
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
apartment building. The officer testified that the apartments
are "posted a no-trespassing zone." When the officer stopped his
vehicle and approached the men, two walked in one direction on
the sidewalk and the other one walked in the opposite direction
on the sidewalk. The officer asked the two men together, "Hey,
how are you doing?" Both men continued to walk until the officer
asked twice if he could talk to them for a minute. The officer's
written report states that twice he asked Gayles "to stop."
When he asked the men if they lived in the apartment
complex, Gayles replied "No." Gayles complied with the officer's
request for identification and gave him his driver's permit. The
officer then asked "what was he doing in the apartment complex."
Gayles said that he was "looking for an address." Gayles could
not provide the specific address he was seeking but "kept
pointing in a direction" and saying, "I know it's a building over
there."
The officer asked Gayles if he was armed. Gayles responded,
"No" and opened his coat to display his waist area. The officer
then told Gayles, "I'm going to pat you down" and began to frisk
Gayles. The officer testified that he "scrunched up the inside
pockets and the outside pockets of [Gayles'] jacket" and then
"patted" the front pockets of Gayles' pants. When he patted
Gayles' rear pockets, he felt "a lump of something." Gayles
pulled away. As the officer attempted to grab and hold him,
Gayles ran away. The officer chased him through a parking lot in
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the apartment complex. During the chase, the officer observed
Gayles throw a cellophane bag from his pocket. Gayles ran to the
end of the apartments and stopped.
After the officer reached him, Gayles told the officer that
he did not wish to be caught with a pocketknife. Although the
officer found nothing in Gayles' left rear pocket, he searched
along the route of the pursuit and found a bag of rock cocaine.
The officer also found in another location along the route of
pursuit a plastic bag containing smaller bags. After arresting
Gayles, the officer searched him and found a razor blade and
$118. Gayles denied any knowledge of the cocaine.
The trial judge ruled that the pat-down was "certainly
reasonable under all these circumstances." Thus, the trial judge
overruled the motion to suppress the cocaine and convicted Gayles
of possession of cocaine.
Agreeing that the officer initiated a consensual encounter,
see Buck v. Commonwealth, 20 Va. App. 298, 301-02, 456 S.E.2d
534, 535 (1995), Gayles contends that the officer violated his
fourth amendment rights by frisking him. The Commonwealth does
not claim the frisk was a consensual search. Indeed, the facts
prove that although Gayles lifted up his coat to display his
clothing, he never granted the officer permission to conduct a
pat-down for weapons. The Commonwealth argues, however, that the
officer's concern for his own safety justified the pat-down.
An officer may conduct a Terry stop only when the officer
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has a reasonable, articulable suspicion that an individual is
engaged in criminal activity. Hayes v. Florida, 470 U.S. 811,
816 (1985). Furthermore, to subject the individual to a frisk
for weapons, the officer must "'reasonably suspect[] that the
person is dangerous' or 'intends to do him bodily harm.'" Payne
v. Commonwealth, 14 Va. App. 86, 89, 414 S.E.2d 869, 870 (1992)
(citation omitted). However, the officer may not act upon an
"inchoate and unparticularized suspicion or 'hunch.'" Moss v.
Commonwealth, 7 Va. App. 305, 308, 373 S.E.2d 170, 172 (1988)
(quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).
The officer testified that the apartments were located in a
high crime area and that police officers had been assaulted
within the complex. Proof that the police encountered or
detained the accused in a known high crime area is not sufficient
to justify a fourth amendment seizure. Texas v. Brown, 443 U.S.
47, 52 (1979); Smith v. Commonwealth, 12 Va. App. 1100, 1104, 407
S.E.2d 49, 52 (1991). "'Even in high crime areas, where the
possibility that any given individual is armed is significant,
Terry requires reasonable, individualized suspicion [that a
suspect is armed] before a frisk for weapons can be conducted.'"
Stanley v. Commonwealth, 16 Va. App. 873, 875, 433 S.E.2d 512,
514 (1993)(quoting Maryland v. Buie, 494 U.S. 325, 334 n.2
(1990)).
While the Commonwealth proved that the time and place of the
encounter may have increased the officer's suspicions, the
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evidence never proved why Gayles, in particular, posed a danger
to the officer's safety. Although the Commonwealth's evidence
proved that Gayles was unable to name a specific address, Gayles
did point to an apartment. This evidence did not suggest that
Gayles' conduct presented a threat to the officer's safety. No
rule of law authorizes officers to conduct general frisks for
weapons solely because the officer decides to initiate an
encounter. Id. We will not assume on these facts that Gayles
was dangerous simply because an unidentified caller reported
three suspicious males standing in front of the complex.
Although the officer testified that Gayles initially
attempted to avoid speaking with him, we place little
significance on this behavior. Gayles had no duty to speak with
the officer, and his decision to avoid contact with him raises
only a slight, if any, suggestion of suspicious circumstances.
See Florida v. Royer, 460 U.S. 491, 497-98 (1983). Viewing the
circumstances objectively, the evidence was insufficient to prove
a reasonable articulable suspicion that Gayles was armed and
dangerous. Generalized suspicion will not support a frisk
search. Sattler v. Commonwealth, 20 Va. App. 366, 369, 457
S.E.2d 398, 400 (1995).
This case is similar to Smith, where we refused to uphold an
investigatory stop and frisk when an officer observed an
individual on a playground at night suddenly stick something in
his pants. 12 Va. App. at 1104, 407 S.E.2d at 52. Also, in
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Goodwin v. Commonwealth, 11 Va. App. 363, 398 S.E.2d 690 (1990),
the Commonwealth proved that police officers observed the accused
emerge from an open space behind an apartment in an area known
for crime and that he jammed his hands in his coat upon seeing
the policemen. 11 Va. App. at 364-65, 398 S.E.2d at 691. We
held that those observations were insufficient to believe Goodwin
posed a threat to the officers. Id. at 367, 398 S.E.2d at 692.
See also Moss, 7 Va. App. at 308, 373 S.E.2d at 172.
In this case, Gayles did not make any suspicious movements
or gestures and even displayed his waist area to the officer.
That conduct was not threatening. As this Court stated in
Toliver v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (1996):
The circumstances were insufficient to give
[the] officer . . . an objectively reasonable
basis for suspecting that [the accused] was
armed and dangerous. He had no information
that [the accused] was involved in criminal
activity, nor had he observed any criminal
behavior. The mere fact that [the accused]
was in an area know for drugs was
insufficient to support an inference that he
was involved in criminal activity. [The
accused] talked to [the] officer . . .
willingly and gave his correct name when
asked. Nothing suggested that he was
carrying a concealed weapon. Therefore, the
frisk was illegal.
Id. at ___, ___ S.E.2d at ___. Thus, we find the trial judge was
plainly wrong in ruling that the officer lawfully frisked Gayles.
This Court has held that "contraband abandoned during flight
is not admissible if it is the product of a prior illegal
seizure." Smith, 12 Va. App. at 1104, 407 S.E.2d at 52. In
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Smith, the officer conducted an unlawful frisk of the accused who
struggled with the officer and then fled. After capturing the
accused, the officer found a bag of crack cocaine along the
escape route. "The cocaine . . . , although abandoned by the
[accused] during flight, was first discovered by the police
officer during his attempt to search the [accused] during an
investigatory stop." Id.
For these reasons, we hold the trial judge erred in refusing
to suppress the evidence and, therefore, reverse the conviction.
Reversed.
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