Michael Lamont Mason v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
MICHAEL LAMONT MASON
MEMORANDUM OPINION * BY
v. Record No. 0219-97-2 JUDGE ROSEMARIE ANNUNZIATA
MAY 5, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
Elizabeth D. Scher (Anthony G. Spencer;
Morchower, Luxton & Whaley, on briefs), for
appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Michael Lamont Mason (appellant) appeals his convictions for
possession of cocaine and possession of a firearm while in
possession of a controlled substance, in violation of Code
§§ 18.2-250 and 18.2-308.4, respectively. Appellant contends
that the evidence against him was unlawfully seized because the
police did not possess reasonable articulable suspicion to stop
the car in which he was riding. Finding no error, we affirm.
At roughly 3:00 a.m. on September 10, 1995, Officer K.D.
Johnson informed Officer Chris Hoang to be on the lookout for a
"darkened" or "dark in color" Honda Accord containing four
African-American males. Hoang learned that the Accord had been
involved in a drive-by shooting on Fillmore Street five or ten
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
minutes previously.
At approximately 3:20 a.m., Hoang spotted a Honda Accord
driven by appellant near Fillmore Street, three blocks from the
location of the drive-by shooting. He described the color of the
Accord as "copper, brownish" or "brownish orange." Hoang called
the license number of the Accord into the police station to
determine if the number matched that of the car in the drive-by
shooting, but the station did not respond. As Hoang waited
parallel to the Accord at a stoplight, he observed the four
African-American male occupants "kind of like glancing at [him],
twitching around." One person in the back of the car bent down,
and the other "scoot[ed] down" in his seat. The Accord turned
into a gas station, drove into an alley, and "went around the
whole block."
After briefly following the Accord, Hoang saw other police
officers and informed them that he believed the Accord might be
the vehicle the police were looking for. The officers stopped
the Accord, pulled appellant and the other occupants out of the
car, and handcuffed them. The police discovered cocaine and a
firearm in a bag under the driver's seat.
Appellant filed a motion to suppress the evidence seized
from the Accord. The court overruled appellant's motion to
suppress, and, sitting without a jury, found the appellant
guilty.
Appellant contends that the evidence against him was
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illegally seized because the police lacked reasonable articulable
suspicion to stop his vehicle. "On appeal, the burden is on
appellant to show, considering the evidence in the light most
favorable to the Commonwealth, that the denial of the motion
constituted reversible error." Stanley v. Commonwealth, 16 Va.
App. 873, 874, 433 S.E.2d 512, 513 (1992) (citing Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
We are bound by a trial court's findings of historical fact
unless the findings are plainly wrong or without evidence to
support them, but we review "'[u]ltimate questions of reasonable
suspicion'" de novo. McGee v. Commonwealth, 25 Va. App. 193,
197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v.
United States, 116 S. Ct. 1657, 1659 (1996)).
In order to stop a motor vehicle, a police officer must have
"at least articulable and reasonable suspicion" that the operator
or occupants of the vehicle are in violation of the law.
Delaware v. Prouse, 440 U.S. 648, 663 (1979); accord, e.g.,
Commonwealth v. Thomas, 23 Va. App. 598, 610, 478 S.E.2d 715, 721
(1996) (citing Prouse, 440 U.S. at 663). In evaluating whether a
police officer had reasonable articulable suspicion, we must
consider "'the totality of the circumstances.'" Murphy v.
Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 127, 128 (1989)
(quoting United States v. Sokolow, 490 U.S. 1, 8 (1989)). We
acknowledge that "trained and experienced police officers . . .
may be able to perceive and articulate meaning in given conduct
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which would be wholly innocent to the untrained observer." Buck
v. Commonwealth, 20 Va. App. 298, 302, 456 S.E.2d 534, 536 (1995)
(citing Richards v. Commonwealth, 8 Va. App. 612, 616, 383 S.E.2d
268, 271 (1989)).
Here, Hoang received a description of a wanted vehicle as a
dark-colored Honda Accord with four African-American male
occupants. Appellant's car matched the make, model, and dark
coloring of the wanted car. The number of occupants of the
wanted car matched the number of occupants in appellant's car.
See State v. Kyles, 607 A.2d 355, 364 (Conn. 1992) (finding
reasonable articulable suspicion to stop a car where the
description of the car and perceived number of occupants matched
the defendant's car). The gender and race of the occupants of
appellant's car also matched those listed in the description.
See Wells v. Commonwealth, 6 Va. App. 541, 552, 371 S.E.2d 19, 24
(1988) (allowing police officer to consider race and gender in
identifying whether a person matched a description).
Furthermore, appellant's car was spotted less than thirty
minutes after the shooting only three blocks from the scene of
the shooting. See Howard v. Commonwealth, 210 Va. 674, 677-78,
173 S.E.2d 829, 832 (1970) (finding stop reasonable based on,
inter alia, temporal and physical proximity to crime); Wells, 6
Va. App. at 552, 371 S.E.2d at 24 ("Proximity to the scene of a
recently committed crime is another factor which police may
consider in determining whether to engage in a Terry stop.").
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Finally, the occupants of appellant's car sought to avoid
observation by Hoang upon seeing him. See Smith v. Commonwealth,
12 Va. App. 1100, 1103, 407 S.E.2d 49, 52 (1991) (allowing
consideration of "``suspicious conduct of the person accosted such
as an obvious attempt to avoid officers'" (quoting Williams v.
Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87 (1987))).
Appellant argues that the information available to the
police was too vague to provide the individualized suspicion
required by the Fourth Amendment. To the contrary, the
confluence of factors known to the police provided reasonable
articulable suspicion that appellant and the other occupants in
the car were involved in the earlier drive-by shooting.
Therefore, we affirm appellant's convictions.
Affirmed.
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