Commonwealth v. Kenneth Lee Mays ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Overton and Senior Judge Hodges
Argued by Teleconference
COMMONWEALTH OF VIRGINIA
v. Record No. 2790-95-3 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
KENNETH LEE MAYS APRIL 30, 1996
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellant.
Elizabeth P. Murtagh, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellee.
Kenneth Lee Mays (appellee) was indicted for possession of
cocaine in violation of Code § 18.2-250. Appellee filed a motion
to suppress the cocaine in which he asserted the police officer
stopped his vehicle without a reasonable suspicion of criminal
activity. The trial court granted the suppression motion, and
the Commonwealth appeals that ruling.
In Terry v. Ohio, the United States Supreme Court held that
"a police officer may in appropriate circumstances and in an
appropriate manner approach a person for purposes of
investigating possible criminal behavior even though there is no
probable cause to make an arrest." 392 U.S. 1, 22 (1968). "[I]f
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
there are articulable facts supporting a reasonable suspicion
that a person has committed a criminal offense, that person may
be stopped in order to identify him, to question him briefly, or
to detain him briefly while attempting to obtain additional
information." Hayes v. Florida, 470 U.S. 811, 816 (1985).
"Justification for stopping an automobile does not depend on the
subjective intent of the police," however. Bosworth v.
Commonwealth, 7 Va. App. 567, 570, 375 S.E.2d 756, 758 (1989).
Compliance with the Fourth Amendment depends instead on "an
objective assessment of an officer's actions in light of the
facts and circumstances then known to him." Id. (quoting Scott
v. United States, 436 U.S. 128, 136 (1978)).
In an appeal by the Commonwealth from an order by the trial
court suppressing evidence, we view the evidence in the light
most favorable to the prevailing party, granting to it all
reasonable inferences fairly deducible therefrom. We will not
reverse the trial judge's decision unless it is plainly wrong.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
747, 723 (1992).
The Commonwealth presented no evidence that narcotics were
actually present, that the observed behavior was consistent with
a narcotics transaction, or that any of the participants were
connected in any way with narcotics. The testifying officer gave
no objective reason why her observations led her to the
conclusion that a sale of narcotics had occurred. Based on the
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record, we cannot say that the trial judge was plainly wrong in
his ruling, and we accordingly affirm the order of suppression.
Affirmed.
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