Cheryl Ann Cheresko, a/k/a Cheryl Ann Culbreth v. Commonwealth ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Petty and Senior Judge Willis
Argued at Chesapeake, Virginia
CHERYL ANN CHERESKO, A/K/A
CHERYL ANN CULBRETH
MEMORANDUM OPINION* BY
v. Record No. 0852-06-1 JUDGE WILLIAM G. PETTY
FEBRUARY 6, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Timothy S. Fisher, Judge
Tyrone C. Johnson for appellant.
Rosemary V. Bourne, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Following a bench trial, Cheryl Ann Cheresko was convicted of possession of cocaine in
violation of Code § 18.2-250. She argues on appeal that the trial court erred when it denied her
motion to suppress. For the reasons that follow, we disagree and affirm her conviction.
I. BACKGROUND
Under settled principles, we review the evidence in the “light most favorable” to the
Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This
principle requires us to “discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all
fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d
755, 759 (1980) (emphasis and citation omitted). So viewed, the evidence establishes the following
facts.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On August 28, 2004, Officer Connie Cassidy of the Newport News Police Department was
conducting her regular patrol of the area near the intersection of Jefferson Avenue and Center
Avenue in Newport News. Around 7:00 p.m., she noticed a car parked on private property behind a
small business that was closed for the evening in an area isolated from the major roadway. Officer
Cassidy testified that as part of her regular patrol of the area she “[went] back there sometimes to
make sure nobody [was] there.” Officer Cassidy testified that she had never seen a car there at that
time of night. Officer Cassidy made eye contact with the occupants of the car, and noticed that the
female passenger, who had been close to the driver’s side of the car, “pulled very quickly back into
the passenger seat” and began staring at Officer Cassidy. Officer Cassidy drove her patrol car out of
sight of the car and parked on the other side of the business. Officer Cassidy did not block or
otherwise obstruct the car at any time.
At the suppression hearing, Officer Cassidy identified the passenger of the car as Cheresko.
When Officer Cassidy got out of her patrol car, she saw Cheresko walking towards her saying
something she could not understand. Officer Cassidy could not see the car or the other occupant of
the car at that time, and she asked Cheresko to step back to the car so she could speak with both of
them. At that point, Officer Cassidy and Cheresko were about ten feet apart. Officer Cassidy and
the passenger walked back toward the car, and Cheresko walked to the passenger side of the car and
faced Officer Cassidy.
Officer Cassidy asked Cheresko for identification, and Cheresko “put her right hand behind
her back, kind of towards her back pocket, left it there for a few minutes, and then she reached with
both hands, it appeared to me, down the back of her shorts.” Officer Cassidy stated that “[i]t looked
to me like she was pushing down, didn’t have anything in her hands beforehand.” Officer Cassidy
believed Cheresko was reaching for a weapon concealed in the back of her shorts. At that point,
Officer Cassidy asked Cheresko “two or three times” to show Officer Cassidy her hands. When
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Cheresko did not do so, Officer Cassidy “kind of spun her around” and put her hands on the hood of
the car. Officer Cassidy “felt right on her shorts” where Cheresko had been placing her hands and
felt a hard, cylindrical object in Cheresko’s shorts, which she believed was a pocketknife.
Officer Cassidy reached down where she had felt the object and, for safety reasons, began to
remove it. As Officer Cassidy pulled the object out of the back of Cheresko’s shorts, she discovered
it was wrapped in a paper towel which came apart, causing a crack pipe to fall to the ground.
The trial court denied the motion to suppress, finding Officer Cassidy’s actions to be
reasonable under the circumstances. The trial court then convicted Cheresko of cocaine possession.
This appeal followed.
II. ANALYSIS
On appeal of the denial of a motion to suppress, it is appellant’s burden to show that the
denial constituted reversible error when the evidence is considered in the light most favorable to the
Commonwealth. See McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261
(1997) (en banc). “[W]e are bound by the trial court’s findings of historical fact unless ‘plainly
wrong’ or without evidence to support them.” Id. at 198, 487 S.E.2d at 261. We review de novo the
trial court’s application of defined legal standards, such as whether a person has been seized in
violation of the Fourth Amendment. See Ornelas v. United States, 517 U.S. 690, 699 (1996);
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
On brief, Cheresko argued that the trial court should have granted her motion to suppress
because Officer Cassidy had no reasonable articulable suspicion of criminal activity to approach
her and her companion in the parked car and because Officer Cassidy’s belief that she was
reaching for a weapon was objectively unreasonable. At oral argument, however, Cheresko
conceded that her encounter with the police officer was consensual until Officer Cassidy
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physically seized her and patted her down; thus, we only address the seizure and pat down in this
opinion.
For the reasons stated below, we hold that this seizure did not offend the Fourth
Amendment because Officer Cassidy had a reasonable, articulable suspicion that Cheresko was
involved in criminal activity and was reaching for a weapon.
There is no question on this record that Cheresko was seized at the point when Officer
Cassidy, fearing Cheresko had a concealed weapon, “spun her around” and placed her hands on
the hood of the car. “[A] person is ‘seized’ only when, by means of physical force or a show of
authority, [her] freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544,
553 (1980). However, it is equally clear on this record that Cheresko’s Fourth Amendment
rights were not violated by this seizure, since “[t]he Fourth Amendment prohibits only
unreasonable searches and seizures.” James v. Commonwealth, 22 Va. App. 740, 745, 473
S.E.2d 90, 92 (1996).
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[] [her] to
conclude, in light of [her] experience, that ‘criminal activity may
be afoot’ and that the suspect ‘may be armed and presently
dangerous.’”
Id. (quoting Landsdown v. Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110 (1983)). In
that context, a police officer “need not be absolutely certain that the subject is armed.”
Landsdown, 226 Va. at 211, 308 S.E.2d at 111. Rather, the officer need only have a reasonable
belief that the subject might be armed in order to conduct a limited search for weapons. See
Simmons v. Commonwealth, 217 Va. 552, 231 S.E.2d 218 (1977). “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
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Va. App. 725, 727, 460 S.E.2d 610, 612 (1995) (citing Graham v. Connor, 490 U.S. 386, 396-97
(1989)).
The facts that led Officer Cassidy to conclude that Cheresko might have been involved in
criminal activity include the car’s presence in a private parking lot after hours, the suspicious
movements of the car’s occupants, Cheresko facing Officer Cassidy with her hands behind her
back and moving her hands inside the back of her shorts in a manner Officer Cassidy believed to
be consistent with drawing a weapon, and, most significantly, her refusal to show Officer
Cassidy her hands after being asked to do so “two or three times.” See Welshman v.
Commonwealth, 28 Va. App. 20, 34, 502 S.E.2d 122, 129 (1998) (“The refusal of a person
detained to show [her] hands may provide . . . a basis” for an officer to reasonably believe the
person might be armed and dangerous. (citing James, 22 Va. App. at 745-46, 473 S.E.2d at 92)).
Moreover, Cheresko’s companion was still in the parked car at that time, giving Officer Cassidy,
who was outnumbered, even more cause to be on alert. Given these circumstances, it was
reasonable for Officer Cassidy to take the precaution of seizing Cheresko and patting her down
at that time.
Further, Officer Cassidy was justified in removing the item from Cheresko’s shorts.
When a “police officer feels an object that he reasonably believes could be a dangerous weapon,
the officer may seize the object from the subject’s person.” Phillips v. Commonwealth, 17
Va. App. 27, 30, 434 S.E.2d 918, 920 (1993). Officer Cassidy described the object in
Cheresko’s shorts as hard and cylindrical, and stated that it felt like a “hard pocketknife.” The
crack pipe was not admitted into evidence, nor is there any other description of the pipe in the
record from which this Court could conclude that Officer Cassidy’s belief was unreasonable.
Thus, since we cannot say as a matter of law that Officer Cassidy could not have believed that
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the crack pipe stuffed down Cheresko’s shorts was a hard pocketknife or some other weapon, we
affirm the judgment of the trial court.
III. CONCLUSION
The trial court did not err in denying the motion to suppress. Accordingly, we affirm its
judgment.
Affirmed.
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