Raymond Wesley Salmon v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
RAYMOND WESLEY SALMON
MEMORANDUM OPINION *
v. Record No. 0193-95-2 BY JUDGE JOSEPH E. BAKER
JULY 30, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUISA COUNTY
Lloyd C. Sullenberger, Judge
James B. Thorsen (Thorsen, Page & Marchant,
on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Robert H. Anderson, III, Assistant Attorney
General, on brief), for appellee.
Raymond Wesley Salmon (appellant) appeals from his bench
trial convictions by the Circuit Court of Louisa County (trial
court) for possession of cocaine in violation of Code
§ 18.2-250(A)(a) and possession of methamphetamine in violation
of Code § 18.2-250(A)(a). The sole issue presented is whether
the trial court erred in denying appellant's motion to suppress
evidence of the contraband substances obtained by the police.
Finding no error, we affirm the judgment of the trial court.
It is well established in Virginia that, on appellate review
of a trial court's denial of a motion to suppress, the appellate
courts of this Commonwealth view the evidence in the light most
favorable to the trial court's determination. E.g., Fore v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
denied, 449 U.S. 1017 (1980); Brown v. Commonwealth, 15 Va. App.
1, 7, 421 S.E.2d 877, 881 (1992). In light of the United States
Supreme Court's pronouncement in Ornelas v. United States, 517
U.S. ___ (1996), it appears that in certain cases a deferential
standard of review is no longer appropriate. In Ornelas, Chief
Justice Rehnquist wrote that henceforth, "as a general matter
determinations of reasonable suspicion and probable cause should
be reviewed de novo on appeal." Id. While generally calling for
de novo review of reasonable suspicion and probable cause
determinations, the Supreme Court "hasten[ed]" to add that a
trial court's finding of "historical fact" should be reviewed
only for "clear error" and noted that a reviewing court should
"give due weight to inferences drawn from those [historical]
facts by resident judges and local law enforcement officers."
Id. Additionally, recognizing "that a police officer may draw
inferences based on his own experience in deciding whether
probable cause exists," id., the Supreme Court held that "[a]n
appeals court should give due weight to a trial court's finding
that [an] officer was credible and [his or her] inference was
reasonable." Id.
Viewed accordingly, the record discloses that on the
afternoon of December 23, 1993, Trooper Michael Alessi (Alessi)
stopped his vehicle because of construction on Route 522 in
Louisa County. While stopped, Alessi noticed a crack in the
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windshield of the car directly in front of him, which appellant
was driving. The crack extended from the center down at an angle
on the passenger side. Alessi followed the car and then stopped
it, believing that appellant might be violating statutes which
prohibit the use of "defective, unsafe or unapproved equipment"
on vehicles. Before he stopped appellant, Alessi could not
determine whether the crack disturbed appellant's vision.
As appellant pulled his car over, he began "lunging toward
the inner part of the seat." Alessi "could see [appellant make
a] brisk movement with his hands [toward] the right part of the
seat." He "wasn't sure if [appellant] was trying to hide
something or move something in the seat on the right portion of
him." Alessi approached the vehicle and asked appellant to
produce his driver's license and registration, which he did.
Because of his observations of appellant's movements, Alessi then
asked appellant to step out of the vehicle. After appellant
stepped out, Alessi saw a beer bottle tucked in the center of the
seat, but he was unsure if appellant's suspicious conduct was a
result of an effort to conceal the bottle. Alessi then conducted
a pat-down search of appellant.
During the pat-down, Alessi could feel currency in
appellant's pockets. After conducting the pat-down, Alessi asked
appellant what he had in his pockets. Appellant replied that he
had money. Alessi then asked appellant to let him see the money.
Appellant complied with Alessi's request and pulled currency and
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a cigarette lighter out of his right pocket. Alessi then asked
appellant to show him what was in his left pocket. As appellant
pulled out a "wad" of money from his left pocket, he "palm[ed] it
down," and Alessi saw a "ziplock baggie or bag corner." The bag
was commingled with the money, with its edges sticking out.
Alessi observed a whitish-tan powder in the bag, which he first
thought was cocaine. When Alessi observed it more closely, he
believed it to be methamphetamine and seized it. Thereafter,
Alessi arrested appellant and placed him in handcuffs. Alessi
then conducted a search of appellant incident to his arrest and
seized a small bag corner containing cocaine from one of
appellant's front pockets.
The Fourth Amendment prohibits only unreasonable searches
and seizures. E.g., Desist v. United States, 394 U.S. 244, 254
n.23 (1969); Warren v. Commonwealth, 214 Va. 600, 602, 202 S.E.2d
885, 887 (1974); see also Florida v. Bostick, 501 U.S. 429, 439
(1991). A police officer may stop a vehicle for investigatory
purposes if the officer possesses a reasonable articulable
suspicion that the motorist is involved in unlawful activity.
See Waugh v. Commonwealth, 12 Va. App. 620, 621, 405 S.E.2d 429,
429 (1991). Code § 46.2-1003, in conjunction with Code
§ 46.2-1002, prohibits the use of a motor vehicle on a highway if
that vehicle has defective or unsafe "safety glass." While in
his cruiser, Alessi could not determine the precise extent of the
crack in appellant's windshield and its impact on appellant's
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ability to drive his vehicle. Alessi's observations provided him
with a proper basis to make an investigatory stop of appellant's
vehicle.
Appellant contends that even if the investigatory stop was
proper, Alessi was not justified in patting down appellant.
Looking again to the Fourth Amendment's proscription against
unreasonable searches and seizures, it is not unreasonable for a
police officer to conduct a limited pat-down search for weapons
when the officer can point to "specific and articulable facts"
"which reasonably lead[] him to conclude, in light of his
experience, that 'criminal activity may be afoot' and that the
suspect 'may be armed and presently dangerous.'" Lansdown v.
Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110 (1983), cert.
denied, 465 U.S. 1104 (1984) (quoting Terry v. Ohio, 392 U.S. 1,
30 (1968)). "Reasonableness is judged from the perspective of a
reasonable officer on the scene allowing for the need of
split-second decisions and without regard to the officer's intent
or motivation." Scott v. Commonwealth, 20 Va. App. 725, 727, 460
S.E.2d 610, 612 (1995) (citing Graham v. Connor, 490 U.S. 386,
396-97 (1989)). An officer is entitled to view the circumstances
confronting him in light of his training and experience, Terry,
392 U.S. at 27, and he may consider any suspicious conduct of the
suspected person. Williams v. Commonwealth, 4 Va. App. 53, 67,
354 S.E.2d 79, 86-87 (1987).
Here, as appellant pulled his car over, Alessi observed
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appellant lunging to his right and making a brisk movement with
his hands. Alessi was not sure what appellant was attempting to
do. Under these circumstances, a reasonably prudent officer
would be warranted in the belief that his safety or that of
others was in danger; therefore, Alessi was justified in
conducting a pat-down of appellant. See Taylor v. Commonwealth,
10 Va. App. 260, 391 S.E.2d 592 (1990).
After completing the pat-down of appellant, and determining
that appellant did not possess any weapons, Alessi asked
appellant to show him what he had in his pockets. Appellant
consented to the request, and appellant's consent led to the
discovery of the methamphetamine and cocaine. A consensual
search is reasonable and thus constitutional, as long as the
search does not exceed the scope of the consent. Bolda v.
Commonwealth, 15 Va. App. 315, 316-17, 423 S.E.2d 204, 205-06
(1992); see also Weeks v. Commonwealth, 248 Va. 460, 468, 450
S.E.2d 379, 385 (1994), cert. denied, 116 S. Ct. 100 (1995).
Because Alessi did not exceed the scope of appellant's consent to
search the contents of his pockets, the search was proper.
The facts reveal that appellant was not subjected to an
unreasonable search and seizure. Accordingly, the judgment of
the trial court is affirmed.
Affirmed.
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