Brandon Alexandria Dyer,s/k/a B.Alexander Dyer vCW

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Elder
Argued at Richmond, Virginia
BRANDON ALEXANDRIA DYER, s/k/a
BRANDON ALEXANDER DYER
MEMORANDUM OPINION * BY
v. Record No. 1827-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 30, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Patrick R. Bynum, Jr., for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Brandon Alexandria Dyer (appellant) was convicted of
possession of cocaine with the intent to distribute in violation
of Code § 18.2-248 and possession of marijuana in violation of
Code § 18.2-250.1. He contends the trial court erroneously
admitted evidence obtained as a result of an unlawful
investigatory stop. For the following reasons, we affirm the
conviction.
I.
At 3:00 a.m. on January 2, 1997, while patrolling alone in
his police car, Sergeant Richard L. Farmer, Jr., observed a
vehicle parked near a convenience store. The car caught the
officer's attention because it was the only vehicle in the lot
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and it was parked "all the way over on the right side" of the
building, rather than "in front where normal traffic would have
parked." As Farmer drove through the parking lot, the car exited
the lot and turned north on Route 1. Farmer followed at a
distance while he ran a license check to determine whether the
vehicle was stolen.
After approximately one-half mile, Farmer observed that the
vehicle "made a wide [right] turn, to the point where he went all
the way onto the entire left side of the roadway and his vehicle
was actually in the oncoming lane." When Farmer activated his
emergency lights to stop the vehicle, appellant, who was driving,
leaned forward over the steering wheel. As Farmer approached the
stopped car on foot, appellant was still bent forward, and his
right hand was hidden under his bulky sweatshirt. Farmer ordered
appellant to show his hand and exit the vehicle.
As appellant got out of the car, Farmer believed he was
hiding something which could have been a weapon. Farmer frisked
him and felt a "large bulge that had a metallic feel to it" in
the front of appellant's pants. When asked what the large bulge
was, appellant reached into his pants. Concerned that appellant
might be reaching for a weapon, Farmer "wanted to control the
situation," and he grabbed appellant's wrist. Together they
pulled out a "cloth . . . zipper-type bag" large enough to hold a
knife or a gun.
Farmer asked what was in the bag, and appellant admitted
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that it contained drugs. Still feeling something metallic in the
bag, the officer took it from appellant and opened it. The bag
contained illegal drugs, $116 in currency, a key, a number of
loose coins, several miscellaneous papers, and a pack of
cigarettes.
The trial court denied appellant's pre-trial motion to
suppress the evidence seized during the traffic stop. At trial,
appellant entered a conditional guilty plea, preserving his right
to appeal the denial of the suppression motion. He was convicted
by final judgment entered July 7, 1997.
II.
Appellant contends Sergeant Farmer lacked a reasonable and
articulable suspicion necessary to justify the investigatory
stop. He argues that Farmer's initial decision to follow
appellant's car was based on a "hunch" and as such tainted the
later stop of appellant's car. Appellant's argument lacks merit.
"'[W]hen the police stop a motor vehicle and detain an
occupant, this constitutes a seizure of the person for Fourth
Amendment purposes.'" Logan v. Commonwealth, 19 Va. App. 437,
441, 452 S.E.2d 364, 367 (1994) (quoting Zimmerman v.
Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988)). "As
a general matter, the decision to stop an automobile is
reasonable where the police have probable cause to believe that a
traffic violation has occurred." Whren v. United States, 116
S. Ct. 1769, 1772 (1996).
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In the instant case, Sergeant Farmer noticed appellant's
vehicle parked in an unusual location, and he ran a check on the
license plate number to determine whether the car was stolen. He
did not stop appellant at that time; he merely followed at a
distance while awaiting the results of the license check.
Notwithstanding appellant's argument to the contrary, Farmer
required no reasonable, articulable suspicion of illegal activity
to record and check the license plate number and follow
appellant's car at a distance for one-half mile, because these
actions did not constitute a seizure under the Fourth Amendment.
It was undisputed that during this time, Sergeant Farmer
observed appellant's vehicle make a wide right turn into the
oncoming traffic lane, a violation of Code § 46.2-846. 1 This
traffic infraction, which the officer witnessed, provided
probable cause to justify Farmer's stop of the vehicle.
Additionally, appellant argues that even if the
investigatory stop was justified, the subsequent pat-down search
of his person was illegal. We disagree.
"'Ultimate questions of reasonable suspicion and probable
cause' . . . involve questions of both law and fact and are
reviewed de novo on appeal." McGee v. Commonwealth, 25 Va. App.
193, 197, 487 S.E.2d 259, 261 (1997) (quoting Ornelas v. United
1
The relevant portion of the statute provides that "[b]oth
the approach for a right turn and a right turn shall be made as
close as practicable to the right curb or edge of the roadway."
Code § 46.2-846.
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States, 116 S. Ct. 1657, 1659 (1996)). "[W]e give due weight to
the inferences drawn from [the] facts by resident judges and
local law enforcement officers." McGee, 25 Va. App. at 198, 487
S.E.2d at 261.
The appropriate standard to evaluate a pat-down search is
well established:
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[] him to conclude, in light
of his experience, that 'criminal activity
may be afoot' and that the suspect 'may be
armed and presently dangerous.'"
James v. Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92
(1996) (citations omitted). Factors that may be relevant in
determining whether a pat-down was justified include "'the
characteristics of the area where the stop occurs . . . as well
as any suspicious conduct of the person accosted such as . . .
any nervous conduct on the discovery of [the officer's]
presence.'" Williams v. Commonwealth, 4 Va. App. 53, 67, 354
S.E.2d 79, 86-87 (1987) (citations omitted).
Here, Farmer observed appellant's traffic infraction and was
concerned that he might be driving under the influence of drugs
or alcohol. From the moment the officer activated his emergency
lights until he approached the vehicle, appellant was bending
forward over the steering wheel with his hand hidden beneath his
sweatshirt. Farmer believed appellant was hiding something from
him, and he reasonably suspected that it might be a weapon. This
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behavior, combined with the fact that Farmer was patrolling alone
at 3:00 a.m., provided an articulable suspicion that appellant
posed a threat to the officer's safety. We hold that a limited
pat-down of appellant's outer clothing was reasonable under the
circumstances.
Finally, appellant contends the seizure of the drugs was
unauthorized because the officer could not reasonably believe,
upon feeling the bag, that it was a weapon. While an officer is
conducting a pat-down search, if he feels an object that he
reasonably believes could be a dangerous weapon, the officer may
seize the object from the suspect's person. See Bolda v.
Commonwealth, 15 Va. App. 315, 317, 423 S.E.2d 204, 206 (1992).
"The officer need not be absolutely certain that the individual
is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or
that of others was in danger." Terry v. Ohio, 392 U.S. 1, 27
(1968).
Under these facts, when appellant reached for the bulge with
the "metallic feel" in his pants, Farmer could reasonably believe
he was in danger. The officer's attempt to control the situation
by grabbing appellant's wrist was justified by his concern that
appellant might be drawing a weapon. Once appellant and the
officer removed the bag from the front of appellant's pants,
appellant admitted it contained drugs. That admission, in
conjunction with the officer's continuing concern that the
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metallic object in the bag was a weapon, provided Farmer with a
reasonable basis to conclude the bag contained contraband and
possibly a weapon. Therefore, the seizure of the bag was
justified.
For the foregoing reasons, we hold that the trial court
properly denied appellant's motion to suppress evidence of the
contents of the bag and affirm the conviction.
Affirmed.
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Benton, J., dissenting.
"Under the circumstances of this case, [Brandon Alexandria
Dyer's] conduct, viewed either in isolation as the officer
considered it or along with the other behavior as the court must
examine it, is utterly insufficient to generate a reasonable
suspicion that [Dyer] was involved in criminal activity."
Zimmerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 710
(1988). The evidence proved that the officer saw the defendant
in his automobile and lawfully parked at a convenience store near
pay telephones. Although the officer did not observe Dyer
violating any law, he concluded that Dyer was suspicious. When
the officer decided to "run[] the license on the vehicle," the
officer drove "slowly . . . behind [Dyer's] vehicle, look[ed] at
[Dyer], look[ed] at the license plate, [drove] around to the left
side, back[ed] up, and then watch[ed] . . . as [Dyer] backed up
and left." The officer saw Dyer commit no traffic or other
violations in the parking lot, leaving the parking lot, or
entering the highway. The officer followed Dyer from a distance
of "at least ten car lengths" as Dyer drove north on Route 1.
The officer saw Dyer commit no traffic offenses on Route 1.
At Old Keaton Road, a secondary road that is not marked
except for a road sign, Dyer turned right. The officer testified
that Dyer's wide turn onto Old Keaton Road "heightened [the
officer's] suspicion as far as possibly . . . . driving under the
influence." When Dyer completed his turn, Dyer drove into the
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proper travel lane. After Dyer made the turn and drove in his
proper lane, the officer saw nothing else to indicate that Dyer
was not properly operating his vehicle. The officer followed
Dyer a short distance on Old Keaton Road and signaled Dyer to
stop.
Stopping an automobile and detaining its occupant
constitutes a seizure within the parameters of the Fourth
Amendment, even when the purpose of the stop is limited. See
Delaware v. Prouse, 440 U.S. 648, 653 (1979). "Manifestly,
[Dyer's] conduct falls below activity necessary to justify a
reasonable suspicion that a violation of law had occurred or was
occurring." Zimmerman, 234 Va. at 612, 363 S.E.2d at 710. Not
every seemingly suspicious motion of a vehicle gives rise to a
reasonable suspicion of criminal conduct. See, e.g., Barrett v.
Commonwealth, 250 Va. 243, 247-48, 462 S.E.2d 109 (1995).
In making a turn, "[b]oth the approach for a right turn and
a right turn shall be made as close as practicable to the right
curb or edge of the roadway." Code § 46.2-846. This statute
does not require a driver to make a perfect turn. "[A] slightly
flawed right turn was not in and of itself enough to give an
officer a reasonable and articulable suspicion that the driver
was under the influence of alcohol." City of Mason v. Loveless,
622 N.E.2d 6, 7 (Ohio App. 1993). Indeed, if failures to follow
"perfect vector[s] down the highway . . . were sufficient reasons
to suspect a person of driving while impaired, a substantial
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portion of the public would be subject each day to an
[unreasonable] invasion of their privacy." United States v.
Lyons, 7 F.3d 973, 976 (10th Cir. 1993).
The evidence proved the officer saw Dyer maneuver his
automobile without incident in the convenience store's parking
lot. After Dyer backed his automobile, he drove from the lot and
turned onto Route 1. He violated no driving prohibitions in so
doing. The officer followed Dyer along Route 1. Dyer committed
no traffic violations while driving on Route 1. No evidence
proved that Old Keaton Road, a secondary road, had lane markings.
It was nighttime. No evidence proved that the intersection was
illuminated. When Dyer turned onto the street, which was marked
only by a street sign, no traffic was approaching. No evidence
proved that a safety problem was created or that Dyer drove
erratically. He merely made a wide turn onto a secondary road.
When viewed in its totality, this "isolated incident" failed to
generate a reasonable suspicion that Dyer was committing a
traffic violation or driving under the influence of alcohol. See
United States v. Gregory, 79 F.3d 973, 978-79 (10th Cir. 1996).
For these reasons, I would hold that the stop was illegal
and that the evidence seized as a result of the seizure should
have been suppressed.
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