Dennis Glenroy Simmonds v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia
DENNIS GLENROY SIMMONDS
MEMORANDUM OPINION * BY
v. Record No. 2710-99-3 JUDGE SAM W. COLEMAN III
SEPTEMBER 26, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Richard S. Miller, Judge
William F. Quillian III for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Dennis Glenroy Simmonds was convicted in a bench trial of
possession of cocaine. As a result of the conviction, the trial
court revoked Simmonds' suspended sentence previously imposed in
an unrelated conviction. Simmonds has appealed from each
judgment.
On appeal, Simmonds argues that the trial court erred by
denying his motion to suppress the cocaine. He contends that
the search for the cocaine was unreasonable because the officers
lacked probable cause to forcibly remove the cocaine from his
mouth. Simmonds further contends that the trial court erred by
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
finding that he violated the conditions of a previously
suspended sentence and erred in revoking the suspended sentence.
We disagree.
I. BACKGROUND
In November 1998, Lynchburg Police Department Investigator
R.A. Davidson was told that Chaka Herbert Raysor, who was wanted
on nine counts of murder as well as other offenses, was in the
Lynchburg area. During the ensuing investigation, Davidson
learned that Raysor had been associated with Barbara Nowlin,
also known as "B." Davidson was told by a reliable,
confidential informant, that Davidson could purchase cocaine
from Nowlin.
At approximately 6:00 p.m. on March 24, 1999, Davidson
received a call from the informant stating that Nowlin would be
at a local Subway shop with cocaine that she would be selling to
the informant. Davidson arrived at the Subway shop and observed
Nowlin's car. Davidson also observed a male passenger in
Nowlin's car, whom he thought might be Raysor. However, the
passenger was the defendant.
At approximately 6:30 p.m., Davidson observed the
confidential informant arrive and go behind the Subway shop to
conduct the drug transaction with Nowlin. "Almost
instantaneously" after the drug sale, the informant notified
Davidson of the sale and of the fact that Nowlin was still in
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possession of cocaine. Davidson notified vice investigators to
stop Nowlin's vehicle and also notified the tactical unit that
he believed Raysor was in the vehicle. The officers stopped
Nowlin's vehicle moments later.
Investigator Wayne Duff made what he characterized as a
"high risk felony vehicle stop" of Nowlin's vehicle. The
uniformed officers had their weapons drawn; they gave verbal
commands from covered positions for Nowlin and the passenger to
raise their hands and exit the vehicle. Rather than exiting the
vehicle as instructed and despite repeated orders to show his
hands, Simmonds remained in the vehicle and repeatedly reached
under the passenger seat and out of the view of the officers.
The officers approached the vehicle and physically removed
Simmonds from the car. Once they had him out of the car, the
officers forcibly placed Simmonds, who continued to struggle, on
the ground in a prone position. Duff approached Simmonds and
immediately recognized that he was not Raysor. Duff also
noticed that Simmonds was making chewing motions and that he had
a "chalky white powdery substance around his lips." Under the
circumstances and based on Investigator Duff's experience, he
concluded that the substance was probably cocaine and that
Simmonds was attempting to ingest it. Duff was aware that
swallowing cocaine posed a significant health hazard that may be
fatal. Duff informed another officer what he observed and the
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two officers commanded Simmonds to stop chewing, which Simmonds
ignored. The officers applied pressure to Simmonds' throat to
prevent him from swallowing. They tried to force Simmonds'
mouth open, but he "clamped" it shut and continued to chew.
After struggling for several seconds, one of the officers
sprayed a burst of "cap-stun" in Simmonds' face. At that point,
Simmonds spit out chunks of an off-white substance, clear
plastic bags, and a brown paper bag. The white substance was
determined to be cocaine.
II. ANALYSIS
A. Motion to Suppress
Simmonds argues that the trial court erred by denying his
motion to suppress the cocaine. He contends that the search was
an impermissible bodily intrusion. He contends that even if he
was lawfully seized, the officers acted unreasonably when they
forcibly removed the drugs from his mouth.
When we review a trial court's denial of a suppression
motion, "[w]e view the evidence in a light most favorable to
. . . the prevailing party below, and we grant all reasonable
inferences fairly deducible from that evidence." Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)
(citation omitted). "[W]e are bound by the trial court's
findings of historical fact unless 'plainly wrong' or without
evidence to support them." McGee v. Commonwealth, 25 Va. App.
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193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas
v. United States, 517 U.S. 690, 699 (1996)). "However, we
consider de novo whether those facts implicate the Fourth
Amendment and, if so, whether the officers unlawfully infringed
upon an area protected by the Fourth Amendment." Hughes v.
Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155, 159 (2000)
(en banc) (citing McGee, 25 Va. App. at 198, 487 S.E.2d at 261).
1. The Stop
"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).
A police officer may conduct an
investigatory stop of a vehicle when he or
she has an "articulable and reasonable
suspicion that a motorist is unlicensed or
that an automobile is not registered, or
that either the vehicle or an occupant is
otherwise subject to seizure for violation
of law."
Commonwealth v. Spencer, 21 Va. App. 156, 159, 462 S.E.2d 899,
901 (1995) (quoting Delaware v. Prouse, 440 U.S. 648, 663
(1979)). "Reasonable suspicion, like probable cause, is
dependent upon both the content of information possessed by
police and its degree of reliability." Alabama v. White, 496
U.S. 325, 330 (1990). "To determine whether an officer has
articulated a reasonable basis to suspect criminal activity, a
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court must consider the totality of the circumstances, including
the officer's knowledge, training, and experience." Freeman v.
Commonwealth, 20 Va. App. 658, 661, 460 S.E.2d 261, 262 (1995)
(citation omitted). Further, when determining the existence of
reasonable suspicion to detain a suspect that is based, at least
in part, on an informant's tip, we again look to the totality of
the circumstances. See Boyd v. Commonwealth, 12 Va. App. 179,
186-87, 402 S.E.2d 914, 919 (1991). The court should conduct a
"balanced assessment of the relative weights of all the various
indicia of reliability (and unreliability) attending an
informant's tip." Illinois v. Gates, 462 U.S. 213, 234 (1983).
In "applying the
totality-of-the-circumstances analysis," the
Supreme Court has "consistently recognized
the value of corroboration of details of an
informant's tip by independent police work."
Gates, 462 U.S. at 241. When making a
warrantless arrest, an officer "'may rely
upon information received through an
informant, rather than upon direct
observations,'" so long as the officer has
reasonable grounds to believe the
informant's statement is true. Id. at 242
(citation omitted).
McGuire v. Commonwealth, 31 Va. App. 584, 594-95, 525 S.E.2d 43,
48 (2000).
Here, the officers received a tip from a reliable informant
that "B" would be arriving at a Subway restaurant and that she
would have drugs. Shortly after receiving the tip, Davidson
went to the Subway shop and saw a female driving a car that
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Davidson knew to be leased to Nowlin. Davidson observed
Nowlin's car drive behind the Subway shop and park alongside
another vehicle. Davidson then observed the occupants of both
vehicles engage in a hand-to-hand transaction. Immediately
after the transaction, the informant called Davidson and
informed him that the woman driving Nowlin's car was in
possession of cocaine. Based on the totality of the
circumstances, the evidence sufficiently proved that the police
had a reasonable suspicion that Nowlin was driving the car and
that she possessed cocaine. Therefore, the stop of Nowlin's car
for the purpose of obtaining more information and investigating
the suspected crime was not unlawful.
2. The Seizure of Simmonds
Following a lawful traffic stop, an officer may order the
driver, see Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977)
(per curiam), and any passengers to exit the car, see Maryland
v. Wilson, 519 U.S. 408, 414-15 (1997). In Wilson, the United
States Supreme Court held that "an officer making a traffic stop
may order passengers to get out of the car pending completion of
the stop." Id. at 415. The Court reasoned that:
danger to an officer from a traffic stop is
likely to be greater when there are
passengers in addition to the driver in the
stopped car. While there is not the same
basis for ordering the passengers out of the
car as there is for ordering the driver out,
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the additional intrusion on the passenger is
minimal.
Id. at 414-15.
Here, the officers, in effecting the stop of Nowlin's car
upon the belief that she had just engaged in a drug sale and was
still in possession of drugs, were permitted to order Simmonds
out of the car. Believing that Nowlin had just committed a
felony, they ordered the occupants to raise their hands and to
exit the vehicle. The officers repeatedly ordered Simmonds to
show his hands; but instead, Simmonds repeatedly reached under
the passenger's seat. The officers forcibly removed Simmonds
from the car, placed him on the ground in the prone position,
and handcuffed him.
Handcuffing Simmonds after he was removed from the car was
not illegal and did not transform the investigatory detention
into an arrest. "Brief, complete deprivations of a suspect's
liberty, including handcuffing, 'do not convert a stop and frisk
into an arrest so long as the methods of restraint used are
reasonable to the circumstances.'" Thomas v. Commonwealth, 16
Va. App. 851, 857, 434 S.E.2d 319, 323 (1993), aff'd on reh'g en
banc, 18 Va. App. 454, 444 S.E.2d 275 (1994). Despite repeated
orders to show his hands, Simmonds twice reached under the car
seat. Even after he was forcibly removed from the car, he still
continued to struggle with the officers. Based upon the
suspected drug activity, Simmonds' refusal to show his hands and
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exit the car on command, and his furtive movements, the officers
were reasonable in forcibly removing Simmonds from the car and
in handcuffing him.
3. The Search
If an officer has reason to believe that a
person is committing a felony in his
presence by possessing contraband or a
controlled substance, the officer has
probable cause to arrest the individual
without a warrant. When an officer has
probable cause to arrest a person, the
officer may search the person, particularly
where the evidence is of a highly evanescent
nature.
Buck v. Commonwealth, 20 Va. App. 298, 304, 456 S.E.2d 534,
536-37 (1995) (citations omitted). "Trained and experienced
police officers . . . may be able to perceive and articulate
meaning in given conduct which would be wholly innocent to the
untrained observer." Richards v. Commonwealth, 8 Va. App. 612,
616, 383 S.E.2d 268, 271 (1989) (citations omitted).
Investigator Duff's observations, in light of his training
and experience, gave him probable cause to believe that Simmonds
had cocaine in his mouth that he was attempting to ingest to
avoid detection. Before forcibly removing Simmonds from the
vehicle, Simmonds made "ducking motions" out of the officers'
view. Once Simmonds was removed from the vehicle and physically
restrained, Duff noticed a "chalky white powdery substance
around [Simmonds] lips" and he was making a chewing motion. The
officers had the additional reason to believe that the substance
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was cocaine because the driver of the vehicle had reportedly
just sold cocaine and still possessed cocaine in the vehicle.
Duff testified that based on his experience he knew that people
commonly try to dispose of cocaine by chewing and swallowing it.
Duff further testified that when people ingest cocaine, the
cocaine leaves a white chalky substance on the lips. Simmonds
ignored orders to open his mouth and spit out the contents.
Simmonds resisted when officers applied pressure to his throat
and attempted to forcibly open his mouth. The officers acted
reasonably in administering a burst of "cap-stun" to force
Simmonds to spit out the drugs because there was a risk that
Simmonds would destroy the evidence and jeopardize his own
health. See Buck, 20 Va. App. at 304, 456 S.E.2d at 537
(finding officers' use of physical force to cause defendant to
expel drugs was reasonable where defendant was destroying
evidence and creating a danger to his own health and safety);
see also Schmerber v. California, 384 U.S. 757, 770-71 (1966)
(stating that in deciding whether an intrusive body search is
permissible, the court must consider whether the officer had a
clear indication that incriminating evidence would be found,
whether exigent circumstances existed if no warrant was
obtained, and whether the officer extracted the evidence using a
reasonable method and in a reasonable manner). Based on the
objective, reasonable belief that Simmonds was committing a
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crime, the officers had probable cause to arrest Simmonds,
thereby rendering the forcible search and removal of the drugs
from his mouth lawful.
Accordingly, we hold that the trial court did not err by
denying Simmonds' motion to suppress the cocaine.
B. Revocation of Suspended Sentence
Simmonds had previously been convicted of felonious assault
and battery of a law enforcement officer and was sentenced to
two years imprisonment, with one year and six months suspended
upon the condition that he be of good behavior for a period of
three years. As a result of his conviction for possession of
cocaine, the trial court found that Simmonds violated his
probation and revoked his suspended sentence.
On appeal, Simmonds argues that the trial court erred in
finding that he violated his probation and in revoking his
suspended sentence for assaulting a police officer because the
cocaine conviction was on appeal and had not become final.
Pursuant to Code § 19.2-306, "[t]he court may, for any
cause deemed by it sufficient which occurred at any time within
the probation period, . . . revoke the suspension of sentence
and any probation."
"A revocation . . . must be based on
reasonable cause but a court has broad
discretion in making such a determination."
Patterson v. Commonwealth, 12 Va. App. 1046,
1048, 407 S.E.2d 43, 44 (1991) (citation
omitted). "To put the matter another way,
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the sufficiency of the evidence to sustain
. . . revocation is a matter within the
sound discretion of the trial court, . . .
reversible only upon a clear showing of an
abuse of such discretion." Slayton v.
Commonwealth, 185 Va. 357, 367, 38 S.E.2d
479, 484 (1946); see Holden v. Commonwealth,
27 Va. App. 38, 41, 497 S.E.2d 492, 493
(1998).
Resio v. Commonwealth, 29 Va. App. 616, 621, 513 S.E.2d 892, 895
(1999).
"[A]n alleged violation upon which revocation is based need
not be proven beyond a reasonable doubt." Patterson, 12 Va.
App. at 1048, 407 S.E.2d at 44. "[E]vidence that 'the trier of
fact in a criminal proceeding found beyond a reasonable doubt
that [a] defendant violated a state law is sufficient . . . to
support' revocation of a suspended sentence, notwithstanding the
pendency of such conviction on appeal." Resio, 29 Va. App. at
622, 513 S.E.2d at 895 (quoting Patterson, 12 Va. App. at 1049,
407 S.E.2d at 45).
Here, Simmonds conceded that he was convicted of possession
of cocaine and that the conviction was a violation of his
suspended sentence. The trial court, therefore, based solely on
the felony conviction, properly revoked Simmonds' suspended
sentence subject to the conviction being upheld on appeal.
Because we have upheld Simmonds' conviction for possession of
cocaine, which was the basis for the revocation, we uphold the
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revocation of the suspended sentence. See Patterson, 12 Va.
App. at 1049, 407 S.E.2d at 45.
Affirmed.
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