Noel Floyd Earley v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
NOEL FLOYD EARLEY
MEMORANDUM OPINION * BY
v. Record No. 2398-95-2 JUDGE LARRY G. ELDER
NOVEMBER 5, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
briefs), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Noel F. Earley (appellant) appeals his conviction of one
count of possession of cocaine with intent to distribute. He
contends that the trial court erroneously denied his motion to
suppress a plastic bag of cocaine obtained when Officer O'Kleasky
of the Richmond police patted the sleeve of his coat during a
sweep of a known open air drug market. He argues that Officer
O'Kleasky lacked reasonable suspicion that he was either
committing a crime or armed at the time Officer O'Kleasky seized
1
him and patted his sleeve for weapons. For the reasons that
follow, we affirm appellant's conviction.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
The Commonwealth conceded at oral argument that appellant
was seized before the bag of cocaine was knocked from his sleeve.
Therefore, we only consider whether reasonable suspicion existed
for the seizure and pat-down.
On appeal, we review determinations of reasonable suspicion
de novo and findings of historical fact for clear error. Ornelas
v. United States, U.S. , , 116 S. Ct. 1657, 1663, 134
L. Ed. 2d 911 (1996). We also give due weight to inferences drawn
from historical facts by trial judges and law enforcement
officials. Id.
It is well settled that a police officer may conduct a
pat-down search of a suspect's outer clothing, if he can "point
to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably lead him to
conclude, in light of his experience, that criminal activity may
be afoot and that the suspect may be armed and presently
dangerous." Thompson v. Commonwealth, 16 Va. App. 478, 481, 431
S.E.2d 72, 74 (1993) (quoting Lansdown v. Commonwealth, 226 Va.
204, 209, 308 S.E.2d 106, 110 (1983), cert. denied, 456 U.S.
1104, 104 S. Ct. 1604, 80 L. Ed. 2d 134 (1984) (quoting Terry v.
Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889(1968))). Whether sufficient cause exists to warrant a stop and
frisk is determined by the totality of the circumstances. Smith
v. Commonwealth, 12 Va. App. 1100, 1102, 407 S.E.2d 49, 51 (1991)
(citing United States v. Cortez, 449 U.S. 411, 417, S. Ct. 690,
695, 66 L. Ed. 2d 621 (1981)). In examining the circumstances, "we
recognize that a trained police officer may be able 'to perceive
and articulate meaning to given conduct which would be wholly
innocent to the untrained observer." Id. (citations omitted).
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The United States Supreme Court has described the process that
law officers undertake when assessing the bases for their
suspicion:
The analysis proceeds with various objective
observations, information from police reports
if such are available, and consideration of
the modes or patterns of operation of certain
kinds of law breakers. From these data, a
trained officer draws inferences and makes
deductions -- inferences and deductions that
might well elude an untrained person.
The process does not deal with hard
certainties, but with probabilities. Long
before the law of probabilities was
articulated as such, practical people
formulated certain common sense conclusions
about human behavior; jurors as factfinders
are permitted to do the same--and so are law
enforcement officers.
Cortez, 449 U.S. at 418, 101 S. Ct. at 695.
In this case, we hold that Officer O'Kleasky had reasonable
articulable suspicion that appellant may have been engaged in
criminal activity and was armed. Consequently, a Terry stop and
a pat-down of appellant was justified. The street corner on
which appellant was standing with two other males was known as an
active open air drug market and was the site of many shootings.
Officer O'Kleasky and his fellow officers arrived to conduct a
routine sweep of the street corner to search for drugs and
weapons. As they arrived at the corner, the officers watched
appellant quickly pull his left fist up into the sleeve of his
coat and start making a twisting motion within his sleeve.
Appellant remained at the corner and made no effort to leave
after the two other males began walking up the street. The
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officers knew appellant had a history of violent behavior that
included convictions for shooting a firearm into an occupied
dwelling and assault. After Officer O'Kleasky twice asked
appellant to show him his hand, appellant complied while still
apparently manipulating an object to fall lower within his
sleeve. Officer O'Kleasky then said to appellant, "put your arm
down." Appellant put his arm down, but it still appeared that he
was attempting to keep some object from falling out of his
sleeve. Concerned for the safety of himself and the other
officers, Officer O'Kleasky reached over and patted appellant one
time on his sleeve to check for firearms, causing the plastic bag
of cocaine to fall from appellant's sleeve.
While each of these circumstances standing alone would not
justify the seizure and search of appellant, when viewed as a
whole, Officer O'Kleasky had reasonable articulable suspicion to
seize and pat-down appellant. The additional circumstances of
this case distinguish it from those cases in which we held that a
police officer witnessing a peculiar hand movement by a person in
a high crime area, without more, lacks reasonable suspicion
justifying a stop and frisk. Riley v. Commonwealth, 13 Va. App.
494, 497-99, 412 S.E.2d 724, 726-27; Smith, 12 Va. App. at 1104,
407 S.E.2d at 52; Goodwin v. Commonwealth, 11 Va. App. 363, 367,
398 S.E.2d 690, 692 (1990). Furthermore, the officers were in an
established open air drug market known for shootings conducting a
sweep for weapons and drugs. We have recognized that searches
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for narcotics "may give rise to sudden violence or frantic
efforts to conceal or destroy evidence" and that it is reasonable
for officers to infer that such situations are dangerous.
Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87
(1987) (quoting Michigan v. Summers, 452 U.S. 692, 702, 101
S. Ct. 2587, 2594, 69 L. Ed. 2d 340 (1981)).
For the foregoing reasons, we affirm the conviction.
Affirmed.
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Benton, J., dissenting.
Noel F. Earley was standing on the sidewalk at 2:50 in the
afternoon when the police officers arrived at "a corner that [the
officers] routinely check during [their] tour" of that
neighborhood. No evidence in this record tended to prove that
the officers had a reasonable suspicion that Earley was engaged
in criminal activity. See Terry v. Ohio, 392 U.S. 1, 30 (1968).
For the reasons cogently stated by this Court in Riley v.
Commonwealth, 13 Va. App. 494, 412 S.E.2d 724 (1992); Smith v.
Commonwealth, 12 Va. App. 1100, 407 S.E.2d 49 (1991); and Goodwin
v. Commonwealth, 11 Va. App. 363, 398 S.E.2d 690 (1990), I would
hold that the police unlawfully stopped and searched Earley. See
also Smith v. Commonwealth, 217 Va. 336, 228 S.E.2d 562 (1976).
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