Opinion
Record No. 1118-92-1
Decided: May 31, 1994
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, Frederick B. Lowe, Judge
Affirmed.
Andrew G. Wiggin (Office of the Public Defender of the City of Virginia Beach, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Drew Avery Lewis (defendant) was convicted by a jury for possession of cocaine in violation of Code Sec. 18.2-250. On appeal, defendant complains that the trial court erroneously overruled his motion to suppress certain evidence discovered during a search of his person. We disagree and affirm the conviction.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issue on appeal.
In considering a trial court's ruling on a suppression motion, we view the evidence in the "light most favorable to . . . the prevailing party below," the Commonwealth in this instance, and the decision will be disturbed only if plainly wrong. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). Our review of the record includes evidence adduced at both the trial and any suppression hearing. DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987), cert. denied, 488 U.S. 985 (1988). To prevail on appeal, the defendant must "show . . . that the denial of [his] motion . . . constitute[d] reversible error." Motley v. Commonwealth, ___ Va. App. ___ ___, 437 S.E.2d 232, 233 (1993).
" '[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information.' " Williams v. Commonwealth, 4 Va. App. 53, 64, 354 S.E.2d 79, 85 (1987) (quoting Hayes v. Florida, 470 U.S. 811, 816 (1985)); see also Terry v. Ohio, 392 U.S. 1, 22 (1968). Moreover, "[o]nce an officer has lawfully stopped a suspect, he is 'authorized to take such steps as [are] reasonably necessary to protect [his and others'] personal safety and to maintain the status quo during the course of the stop.' " Servis v. Commonwealth, 6 Va. App. 507, 519, 371 S.E.2d 156, 162 (1988) (quoting United States v. Hensley, 469 U.S. 221, 235 (1985)); see Terry, 392 U.S. at 27.
Here, Detective B. B. Harris was dispatched at approximately 3:21 a.m. to a trailer park in response to the report of "a man beating up a pregnant woman." At the scene, Harris located and approached the alleged victim, Sharon Asuega, and she indicated that the assailant was then "fleeing" the area in an automobile still visible and identified by Asuega. The vehicle was immediately stopped by another "unit" summoned by Harris, and Harris quickly joined that officer to provide assistance. Defendant was removed from the vehicle, "patted down" for weapons and detained in the rear of Harris's car, pending the investigation.
No weapons were discovered during this initial "patdown," and it is not an issue in this appeal.
Within minutes, Asuega approached, and Harris asked defendant to step from the vehicle to enable him to observe the interaction between Asuega and defendant. As defendant moved away from the automobile, Harris observed a "form" in his back pocket which appeared to be "a little pocket knife" and, again, "patted [defendant] down." The object "felt like a pocket knife" to Harris's touch, and he removed it, discovering a "silver tube" which contained cocaine residue. Defendant objected to the admission of this "pipe" into evidence.
Under such circumstances, the second protective "patdown" and related seizure were incidental to defendant's continuing lawful detention by police. Accordingly, the evidence in issue was properly admitted by the trial court, and we affirm the conviction.
Affirmed.