Jose Martinez v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
JOSE MARTINEZ
MEMORANDUM OPINION * BY
v. Record No. 2762-95-1 JUDGE RICHARD S. BRAY
JULY 16, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
George B. Pavek, III, for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Jose Martinez (defendant) entered pleas of guilty to
possession of cocaine with intent to distribute and a related
firearm offense, reserving his right to appeal the denial of an
earlier motion to suppress the substantive evidence of these
offenses. Defendant now pursues such appeal, arguing that the
trial court erroneously admitted evidence resulting from an
unlawful seizure. We disagree and affirm the convictions.
The parties are fully conversant with the record in this
case, and we recite only those facts necessary to a disposition
of this appeal.
Upon review from a trial court's denial of a motion to
suppress, we consider the evidence in the light most favorable to
the prevailing party below, the Commonwealth in this instance,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
granting to it "all reasonable inferences fairly deducible from
that evidence." 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). The factual findings
of the trial court will not be disturbed unless "plainly wrong,"
Grimstead, 12 Va. App. at 1067, 407 S.E.2d at 48, and the burden
is upon the appellant to show that the denial constituted
reversible error. Reynolds, 9 Va. App. at 436, 388 S.E.2d at
663. However, in accord with Ornelas v. United States, 517 U.S.
(1996), we conduct an "independent appellate review of [the]
ultimate determinations of reasonable suspicion and probable
cause . . . ." Id. at .
The record discloses that, on April 24, 1993, Newport News
Police Officers Adrien Schraudt and Bryan Haas, while on routine
patrol "in a high crime, high drug area," observed a Ford Taurus
"rental vehicle" traveling in the wrong direction on a one way
street. After stopping the Taurus, both officers approached, and
Haas asked the driver, "Noo Noo" Dupree, for his driver's license
and automobile registration certificate. Haas recalled that
Dupree "stuttered a little bit" and appeared "jittery." The
defendant, the front seat passenger, seemed similarly "nervous."
After Dupree provided the requested documents, including the
rental agreement, Haas advised Dupree that he was issuing a
summons for the traffic violation, and the officers returned to
the police vehicle.
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While preparing the summons, the officers learned that the
Taurus had been rented at Norfolk International Airport. Officer
Schraudt testified that a recent FBI bulletin advised that "major
drug gangs were renting . . . Ford Taurus vehicles . . . [and]
run[ning] drugs from Norfolk to Williamsburg . . . ." Schraudt
then noted that Dupree and defendant "were both looking at each
other, . . . looking around, . . . looking back toward [their]
vehicle, talking to each other, [and] looking over their
shoulders . . . constantly" and advised Haas that "for [their]
safety, it would be best to take Mr. Dupree out of the [Taurus]
and pat him down, [to] make sure he didn't have any kind of
weapons on him."
Haas instructed Dupree to exit the Taurus, "patted him down
for weapons" and, finding none, placed him in the rear seat of
the police car. Meanwhile, Schraudt observed defendant, still
seated in the Taurus, "constantly looking back at [them]. At one
point, [Schraudt] didn't even see [defendant's] head.
[Defendant] kept bending over [as if] he was reaching down,
[while] looking back . . . ." Based on his observations,
Schraudt "became . . . very nervous," and told Haas that he
"wanted to take the passenger out of the [Taurus], also, for
. . . safety reasons." As Haas "covered" him, Schraudt "asked
[defendant] if he would step out" and opened the door. As
defendant exited, it appeared that "he was going down toward his
shirt area" with his right hand, and Schraudt instructed him "not
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to touch anything, not to move, keep his hands where [Schraudt]
could see them[,] and place his hands up on the car." When
Schraudt inquired if defendant had any weapons on his person,
defendant motioned toward his waistband, acknowledged that he had
a gun, and Schraudt removed a loaded "Cobray Mach 11" firearm.
Defendant was then arrested for possession of a concealed
weapon and escorted to the police car, where he volunteered, "I
also have drugs on me. Do you want those, too?" Schraudt
responded affirmatively, "reached into [defendant's] right front
pocket and . . . pulled out . . . [several] plastic bags"
containing marijuana and cocaine.
Defendant concedes that the initial stop of the Taurus was
properly supported by the traffic violation, thereby subjecting
the occupants of the vehicle to the related seizure. However, he
contends that the officer's command to exit the vehicle
constituted a further, unreasonable seizure of his person in
violation of the Fourth Amendment.
"[T]he fourth amendment does not proscribe all searches and
seizures, only those that are 'unreasonable.'" Thompson v.
Commonwealth, 16 Va. App. 478, 481, 431 S.E.2d 72, 74 (1993)
(quoting Terry v. Ohio, 392 U.S. 1, 9 (1968)). "Whether a search
or seizure is unreasonable is determined by balancing the
individual's right to be free from arbitrary government
intrusions against society's countervailing interest in
preventing or detecting crime and in protecting its law
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enforcement officers." Id.
"The state's interest in the personal safety of its police
officers is "'legitimate and weighty.'" Bethea v. Commonwealth,
14 Va. App. 474, 478, 419 S.E.2d 249, 251 (1992) (quoting
Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977)), aff'd on other
grounds, 245 Va. 416, 429 S.E.2d 211 (1993).
By requiring a passenger to exit a vehicle, a
police officer who, in a traffic stop, is
involved with unknown individuals, is able to
establish 'a face-to-face confrontation
[which] diminishes the possibility, otherwise
substantial, that [the occupants of the
vehicle] can make unobserved movements
[which], in turn, reduces the likelihood that
the officer will be the victim of an
assault.'
Id. at 478, 419 S.E.2d at 251-52 (quoting Mimms, 434 U.S. at
110). Thus, "Fourth Amendment interests are not violated when a
police officer can 'point to specific and articulable facts
which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.'" Bethea v. Commonwealth, 245
Va. 416, 419, 429 S.E.2d 211, 213 (1993) (quoting Lansdown v.
Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110 (1983), cert.
denied, 465 U.S. 1104 (1984)).
Here, both Dupree and defendant appeared nervous, "looking
over their shoulders back toward [the officers] constantly."
This behavior, combined with the "high crime, high drug area" of
the stop and official information of "major drug gangs . . .
renting . . . Ford Taurus vehicles" for the transportation of
narcotics from Norfolk to Williamsburg, prompted reasonable
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safety concerns which justified the removal of Dupree from the
vehicle. See Williams v. Commonwealth, 4 Va. App. 53, 67, 354
S.E.2d 79, 87 (1987). Defendant's subsequent exaggerated
behavior while alone in the Taurus provided additional reasonable
suspicion that he, also, posed a threat to the officers and
supported the limited intrusion which attended disclosure of the
offending contraband.
Accordingly, we affirm the convictions.
Affirmed.
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