David Franklin Taylor v. Commonwealth ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Clements and Beales
Argued at Richmond, Virginia
DAVID FRANKLIN TAYLOR
MEMORANDUM OPINION* BY
v. Record No. 0159-06-2 JUDGE RANDOLPH A. BEALES
FEBRUARY 20, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Richard D. Taylor, Jr., Judge
Gregory W. Franklin, Senior Appellate Defender (Office of the
Public Defender, on briefs), for appellant.
Susan M. Harris, Assistant Attorney General (Robert F. McDonnell,
Attorney General, on brief), for appellee.
David Franklin Taylor (appellant) appeals from his conviction for carrying a concealed
weapon in violation of Code § 18.2-308.2. He argues the trial court erred in denying his motion to
suppress. For the following reasons, we affirm.
BACKGROUND
“‘On appeal from a denial of a suppression motion, we must review the evidence in the
light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.’”
Kyer v. Commonwealth, 45 Va. App. 473, 477, 612 S.E.2d 213, 215 (2005) (en banc) (quoting
Slayton v. Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003)).
On July 17, 2005, Officers Mills and Gardner encountered appellant while they were
patrolling in the Hillside Court area within the city of Richmond. Hillside Court is a Richmond
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Redevelopment and Housing Authority property and is posted “no trespassing.” Officer Gardner
characterized Hillside Court as a high-crime area and an open-air drug market.
The officers noticed appellant peeking around the corner of a building looking toward
their police vehicle. Upon seeing the officers pull up and park their vehicle, appellant and
another male proceeded to the front porch of a residence. Officer Gardner testified that appellant
stood on the porch of the residence and knocked lightly on the door, “like he wasn’t trying to get
somebody to answer the door, just trying to act like he was, you know, trying to go inside.”
Suspecting the two men were trespassing, the officers approached on foot. Gardner
asked them if they lived in Hillside Court. Appellant’s companion informed the officers that he
“lived in the area,” but appellant remained silent. Gardner asked them both for identification,
asked if either had any weapons on his person, and asked if each would mind pulling up his shirt.
According to Gardner, appellant said nothing and pulled up his shirt. Officer Mills
noticed a bulge in the front right portion of appellant’s shorts. Mills tapped the bulge with his
flashlight and “heard what sounded like my flashlight tapping a heavy metal object.” Suspecting
this to be a firearm, Mills instructed appellant to raise his hands, patted the object with his hands,
and recognized it as a firearm. The officers handcuffed appellant and seized the firearm.
At the hearing on the motion to suppress, appellant recalled that he responded to the
officer’s request to lift his shirt by raising his arms into the air and saying, “What for?”
According to appellant, the officers then grabbed him, put him in handcuffs, seized the weapon,
and took him to the police vehicle. Appellant further stated that neither officer patted him down,
nor did either one use a flashlight to tap the bulge in his pocket. Appellant explained that his
cousin was the individual peeking around the corner of the building.
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The trial court denied the motion to suppress.1 The judge concluded that the stop was
proper, but thought the officers’ request for the two men to lift up their shirts was improper.
Nevertheless, the trial court accepted appellant’s testimony and found that appellant raised his
hands into the air “on his own” – not at the officer’s direction – which ironically allowed the
officers to see the bulge in his pants. The trial court held the officers then had reasonable
suspicion to justify a pat down.
Appellant entered a conditional guilty plea and was sentenced to four years of
incarceration with two years suspended. This appeal followed.
ANALYSIS
The only question before this Court on appeal is whether the trial court erred in denying
appellant’s motion to suppress. Initially we note,
“Ultimate questions of reasonable suspicion and probable cause to
make a warrantless search” involve questions of both law and fact
and are reviewed de novo on appeal. In performing such analysis,
we are bound by the trial court’s findings of historical fact unless
“plainly wrong” or without evidence to support them and we give
due weight to the inferences drawn from those facts by resident
judges and local law enforcement officers.
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc)
(quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)).
The United States Supreme Court further discussed in Ornelas the legal standards of
reasonable suspicion and probable cause:
They are commonsense, nontechnical conceptions that deal with
“the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.” Illinois v.
Gates, 462 U.S. 213, 231 (1983). As such, the standards are “not
readily, or even usefully, reduced to a neat set of legal rules.”
Gates, 462 U.S. at 232. We have described reasonable suspicion
simply as “a particularized and objective basis” for suspecting the
1
The trial court initially did not give a reason for its ruling or make any findings on the
record. At a later hearing, however, the trial judge explained the ruling in detail.
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person stopped of criminal activity, United States v. Cortez, 449
U.S. 411, 417-418 (1981), and probable cause to search as existing
where the known facts and circumstances are sufficient to warrant
a man of reasonable prudence in the belief that contraband or
evidence of a crime will be found.
517 U.S. at 695-96 (additional citations omitted). “The court must consider the totality of the
circumstances in determining whether a police officer had a particularized and objective basis for
suspecting that a person stopped may be involved in criminal activity.” Bass v. Commonwealth,
259 Va. 470, 475, 525 S.E.2d 921, 924 (2000).
“‘Fourth Amendment jurisprudence recognizes three categories of police-citizen
[contacts]: (1) consensual encounters, (2) brief, minimally intrusive investigatory detentions
based upon specific, articulable facts, commonly referred to as Terry stops, and (3) highly
intrusive arrests and searches founded on probable cause.’” Blevins v. Commonwealth, 40
Va. App. 412, 420-21, 579 S.E.2d 658, 662 (2003) (quoting Wechsler v. Commonwealth, 20
Va. App. 162, 169, 455 S.E.2d 744, 747 (1995)). “[A] consensual encounter does not require
any justification and may be terminated at will by the individual.” White v. Commonwealth, 267
Va. 96, 104, 591 S.E.2d 662, 665 (2004). Normally, “a police request made in a public place for
a person to produce some identification, by itself, generally does not constitute a Fourth
Amendment seizure.” McCain v. Commonwealth, 261 Va. 483, 491, 545 S.E.2d 541, 546
(2001).
Here, Officers Mills and Gardner initiated a consensual encounter with appellant and his
companion by asking for identification and asking whether either had any weapons on his
person. Gardner then asked the men “if they would mind pulling up their shirt.” According to
appellant’s own version of the events, he did not comply by raising his shirt but, instead, raised
his arms into the air and exclaimed, “What for?” The trial judge accepted appellant’s testimony
on this point and specifically found, as a fact, that by raising his arms into the air, appellant
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revealed a bulge in his clothing. Though appellant urges this Court to reject that finding, we
refuse to do so since it is not plainly wrong and is, in fact, consistent with appellant’s own
testimony.2
The bulge in appellant’s pants, when combined with other facts present such as the
officers’ knowledge of the character of the neighborhood and the furtive gestures and actions of
the two men, gave the officers reasonable suspicion to believe appellant might be concealing a
weapon, and, accordingly, they were justified in their efforts to investigate further. See Adams
v. Williams, 407 U.S. 143, 146 (1972) (“‘When an officer is justified in believing that the
individual whose suspicious behavior he is investigating at close range is armed and presently
dangerous to the officer or to others,’ he may conduct a limited protective search for concealed
weapons.” (quoting Terry v. Ohio, 392 U.S. 1, 24 (1968))).
Therefore, then possessing reasonable suspicion to believe appellant might be armed,
Officer Mills next tapped the bulge with his flashlight. As he testified, Mills heard the flashlight
contact a “heavy metal object,” which he then believed was a weapon. At this point, we hold the
officers possessed probable cause to believe appellant was armed and, accordingly, were justified
in searching for a weapon, seizing that weapon, and arresting appellant.
CONCLUSION
For the foregoing reasons, we hold the trial court did not err in denying appellant’s
motion to suppress. We, accordingly, affirm his conviction.
Affirmed.
2
On brief, appellant argues, “It is farfetched to believe that [appellant] just happened to
accidentally do exactly what he had just been instructed to do,” and, therefore, appellant actually
complied with the officer’s allegedly improper request. However, appellant actually testified
that he raised his hands (not his shirt) up and exclaimed, “What for?” As the trial court
reasonably concluded, such action is more consistent with protest and a refusal to comply with
the officer’s request.
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