Antonio Lamont Mozelle v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia
ANTONIO LAMONT MOZELLE
MEMORANDUM OPINION * BY
v. Record No. 1734-00-1 JUDGE RICHARD S. BRAY
SEPTEMBER 25, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
Andrew Kolp, Assistant Public Defender, for
appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Antonio Lamont Mozelle (defendant) was convicted in a bench
trial for possession of a firearm by a convicted felon and
possession of heroin with intent to distribute, violations of Code
§§ 18.2-308.2 and -248, respectively. On appeal, he contends the
trial court erroneously denied his motion to suppress evidence
obtained by police incident to an unconstitutional seizure of his
person. We agree and reverse the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
"In reviewing a trial court's denial of a motion to suppress,
'the burden is upon the defendant to show that the ruling, when
the evidence is considered most favorably to the Commonwealth,
constituted reversible error.'" McGee v. Commonwealth, 25
Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation
omitted). "Ultimate questions of reasonable suspicion and
probable cause to make a warrantless search" involve issues of
both law and fact, reviewable de novo on appeal. Ornelas v.
United States, 517 U.S. 690, 699 (1996). However, "[i]n
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, 25 Va. App. at 198, 487 S.E.2d at
261 (citation omitted).
On March 6, 2000, several Portsmouth police officers "were
conducting a surveillance on [defendant's] house," "looking for an
individual who was an associate of defendant" and "allegedly
involved in a shooting." Although police were unable to recognize
the suspect, "information" indicated that he "[h]ad been seen
riding in [a] vehicle with [defendant]." During the "stake-out,"
police observed defendant exit the home, accompanied by three
unidentified males, enter an automobile and leave the area.
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The surveillance team immediately notified Officer K.M.
Armstrong who, together with "six to eight" other officers,
"effected a stop on the vehicle" seeking "to identify an associate
of defendant" that "hung around with" him. When Armstrong
approached the passenger side of the car, he "detected an odor of
marijuana," "had the occupants step out of the vehicle" and
conducted a pat-down search of defendant, discovering a baggie
containing heroin in his pocket. Defendant was then arrested for
the offense and, as a result, Armstrong obtained a search warrant
for his home. Upon execution of the warrant, police discovered "a
.45 caliber, semiautomatic handgun," "a magazine with bullets,"
"two clear bags . . . contain[ing] fifty capsules each of
suspected heroin," and "personal papers" of defendant.
At trial, defendant moved the trial court to suppress the
evidence as "fruit of the poison tree," arguing he was illegally
seized at the time of the initial stop. Wong Sun v. United
States, 371 U.S. 471, 488 (1963). The court overruled defendant's
motion and proceeded with trial, resulting in the subject
conviction and appeal.
II.
"When the police stop a motor vehicle and detain an occupant,
this constitutes a 'seizure' of the person for Fourth Amendment
purposes, even though the function of the stop is limited and the
detention brief." Zimmerman v. Commonwealth, 234 Va. 609, 611,
363 S.E.2d 708, 709 (1988) (citations omitted).
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Accordingly, the stop of an automobile and
the resulting detention . . . is
unreasonable under the Fourth Amendment
absent a reasonable, articulable suspicion
that the driver is unlicensed or that the
automobile is not registered, or that either
the vehicle or an occupant is otherwise
subject to seizure for violation of the law.
Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923-24
(2000).
"Reasonable suspicion, while not as stringent a test as
probable cause, requires at least an objective justification for
making the stop." Ramey v. Commonwealth, 35 Va. App. 624, 629,
547 S.E.2d 519, 522 (2001) (citing United States v. Sokolow, 490
U.S. 1, 7 (1989)). Thus, "'[a]t the time of the stop, the
officer must be able to point to specific and articulable facts,
which taken together with rational inferences from those facts,
objectively warrant a reasonable person with the knowledge and
experience of the officer to believe that criminal activity is
afoot.'" Id. (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). 1
"To determine whether an officer has articulated a reasonable
basis to suspect criminal activity, a court must consider the
totality of the circumstances, including the officer's
knowledge, training, and experience." Freeman v. Commonwealth,
1
"[I]n Pennsylvania v. Mimms, 434 U.S. 106 (1977), the
Supreme Court held that the principles of Terry apply equally to
the stop of a suspect who is traveling in an automobile."
Williams v. Commonwealth, 4 Va. App. 53, 64, 354 S.E.2d 79, 85
(1987). Accordingly, the Commonwealth expressly did "not rely
upon the trial court's holding that the defendant lacked
standing to challenge the stop of the car."
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20 Va. App. 658, 661, 460 S.E.2d 261, 262 (1995) (citation
omitted).
Here, the circumstances failed to provide the requisite
reasonable basis in justification of the disputed stop and
attendant seizure. The officers observed no traffic violation or
other criminal activity and were admittedly unable to recognize
the "associate" of defendant among the men accompanying him in the
vehicle. Nevertheless, the car was stopped and its occupants
seized. To countenance such conduct would permit police to stop
defendant whenever found in the company of an unidentified person,
a result clearly offensive to the Fourth Amendment.
Accordingly, the court erroneously admitted the evidence
resulting from the unlawful stop and seizure, and we reverse the
convictions and remand the cause for such further proceedings as
the Commonwealth deems appropriate.
Reversed and remanded.
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