Lamont Eugene McCord v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
LAMONT EUGENE MCCORD
MEMORANDUM OPINION * BY
v. Record No. 1504-95-2 JUDGE LARRY G. ELDER
AUGUST 6, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Lamont Eugene McCord (appellant) appeals his convictions for
possession of cocaine with intent to distribute, in violation of
Code § 18.2-248; possession of cocaine while possessing a
firearm, in violation of Code § 18.2-308.4; and feloniously
carrying a firearm after having been convicted of a felony, in
violation of Code § 18.2-308.2. Appellant argues that the trial
court erred in refusing to suppress drug and firearm evidence,
after determining that the police had reasonable suspicion to
seize him and then probable cause to arrest and search him.
Because the trial court did not err, we affirm appellant's
convictions.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The record reveals that on December 6, 1994, at
approximately 8:00 p.m., Richmond City Police Officers John
O'Kleasky and John O'Connor received information from their
supervisor regarding a report of drug activity on Stafford Street
in the City of Richmond. At approximately 8:55 p.m., the
officers, in their police vehicle, turned onto Stafford Street,
which was known to them as a "high drug area." The officers
observed appellant from a distance of approximately 150 feet.
Appellant, who stood in the middle of the street and held what
looked like a bottle wrapped in a brown paper bag, was
approximately forty feet from a car stopped along the curb. A
female driver occupied the car, which was stopped in a bus stop.
Appellant looked wide-eyed in the direction of the officers'
vehicle and began "sprinting" toward the car.
The officers drove closer and stopped their vehicle in the
middle of the street facing the car. As the officers exited
their vehicle, they observed appellant enter the passenger side
of the car and begin making furtive gestures. Officer O'Connor,
fearing for his own safety, drew his weapon. As Officer O'Connor
approached the passenger side of the car with his gun pointed at
appellant, he yelled at appellant to put his hands where he could
see them. Instead, appellant "would put [his hands] up and take
them down and reach all around in his pockets," and onto the
floor.
At the same time, Officer O'Kleasky approached the driver's
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side of the car. Officer O'Kleasky ordered the driver, who
appeared jittery, to stop the car. At this point, appellant,
seated in the passenger seat, moved the gearshift into drive and
then into reverse, while telling the driver to "go."
As appellant moved the gearshift, Officer O'Kleasky saw what
he believed to be "narcotics" hanging out of appellant's pocket.
The officers then removed appellant from the car, arrested him,
and seized drugs and a firearm from his person, found during the
search incident to arrest.
Appellant moved to suppress the evidence seized, arguing
that the police lacked even reasonable suspicion to detain him.
On May 3, 1995, the trial court overruled appellant's motion.
Appellant entered guilty pleas to the above-described charges on
the condition that he could appeal the denial of his suppression
motion, which is the subject of this appeal.
Upon appeal from a trial court's denial of a motion to
suppress, we review 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). We will not disturb a
trial court's findings unless "plainly wrong," id., and appellant
bears the burden to show that the denial constituted reversible
error. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729,
731, cert. denied, 449 U.S. 1017 (1980).
We hold that the trial court did not err in finding that the
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officers had reasonable, articulable suspicion to make a "Terry
stop" of appellant. See Terry v. Ohio, 392 U.S. 1 (1968). The
officers observed appellant holding what looked like a bottle in
a brown paper bag. They observed appellant quickly flee to a
nearby car, which was stopped at a bus stop. The officers also
noticed appellant immediately begin to make furtive gestures as
he entered the car. Considering the officers' experience and
training, they reasonably suspected that appellant could have
been drinking in public, that the car's driver was illegally
parked at a bus stop, and that appellant fled to conceal his
guilt. See Hope v. Commonwealth, 10 Va. App. 381, 386, 392
S.E.2d 830, 833-34 (1990).
While the officers approached and stood along side the car,
appellant continued to move around the inside of the car.
Officer O'Kleasky noticed, in plain view, "narcotics" hanging out
of appellant's pocket. At that juncture, the officers possessed
probable cause to arrest appellant for possession of narcotics.
See Texas v. Brown, 460 U.S. 730 (1983); Troncoso v.
Commonwealth, 12 Va. App. 942, 407 S.E.2d 349 (1991). The
officers lawfully removed appellant from the car and arrested and
searched him, at which time they recovered the cocaine and the
firearm. See Poindexter v. Commonwealth, 16 Va. App. 730, 734,
432 S.E.2d 527, 529-30 (1993).
Even assuming the officers lacked a basis for a Terry stop,
according to California v. Hodari D., 499 U.S. 621, 626 (1991),
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and its progeny, the officers never "seized" appellant because
appellant did not submit to the officers' "show of authority."
Brown v. Commonwealth, 17 Va. App. 694, 696, 440 S.E.2d 619, 620
(1994). See Woodson v. Commonwealth, 245 Va. 401, 405, 429
S.E.2d 27, 29 (1993).
For the foregoing reasons, we affirm appellant's
convictions.
Affirmed.
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Benton, J., dissenting.
To conduct a Terry detention, a police officer must have a
"reasonable suspicion, based on objective facts, that the
individual [detained] is involved in criminal activity." Brown
v. Texas, 443 U.S. 47, 51 (1979). "If the officer's suspicion
amounts to merely an 'inchoate and unparticularized suspicion or
"hunch" . . . [rather] than a fair inference in light of his
experience, [the officer's suspicion] is simply too slender a
reed to support the seizure' under the fourth and fourteenth
amendments of the United States Constitution." Murphy v.
Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128 (1989)
(citation omitted). I would hold that McCord's conduct and the
circumstances encountered by the officers did not support a Terry
detention.
The majority concludes that the officers "suspected that
[McCord] could have been drinking in public." The officers' bald
suspicion falls short of the standard articulated in Terry v.
Ohio, 393 U.S. 1 (1968). The testimony proved that McCord
possessed "what appeared to be a bottle wrapped in a brown paper
bag." The officers never observed McCord move the brown package
to his mouth. Also, they did not know if the container had been
opened or even if the bag contained an alcoholic beverage.
Furthermore, the officers did not describe any conduct that would
have led them to believe that McCord was intoxicated. Thus, the
officers' own testimony proved that the seizure was based only
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upon an "inchoate and unparticularized suspicion or 'hunch'"
concerning McCord's use or intended use of the lawful item McCord
possessed. Terry, 392 U.S. at 27.
In addition, the officers' testimony established that the
driver of the automobile was not violating any traffic laws. The
driver was in the automobile with the engine running. That
conduct was not unlawful. Although the City of Richmond
prohibits parking or stopping at a bus stop, the city code does
allow brief stops to load or unload passengers. Richmond City
Code § 28-220. The evidence proved that the officers seized
McCord and the driver only a few seconds after first observing
the vehicle. Viewed objectively, I cannot find that there was a
reasonable suspicion that the driver was engaged in criminal
activity simply because she stopped at a bus stop for a few
seconds. "Under the circumstances of this case, such conduct,
viewed either in isolation as the officer considered it or along
with the other behavior as the court must examine it, is utterly
insufficient to generate a reasonable suspicion that [McCord] was
involved in criminal activity." Zimmerman v. Commonwealth, 234
Va. 609, 612, 363 S.E.2d 708, 710 (1988).
Contrary to the majority's alternative finding, the trial
judge found that the police officer had seized McCord. Based
upon the testimony, the trial judge ruled as follows:
And when the lady was commanded to stop, I
think you can consider that a seizure of both
people. You can further consider the officer
when he gets to the side of the vehicle and
. . . when Officer O'Connor issues the
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command to stop with his gun in his hand; and
the man doesn't jump out and run, I think you
could probably consider that a seizure, also.
That finding disposes of the suggestion that California v. Hodari
D., 499 U.S. 621, 626 (1991), renders this encounter to be not a
seizure.
For these reasons, I would hold that the trial judge erred
in not suppressing the evidence.
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