Opinion
Record No. 1243-92-1
December 14, 1993
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY BENJAMIN A. WILLIAMS, JR., JUDGE.
(Robert O'Neill, Public Defender, on brief), for appellant. Appellant submitting on brief.
(Stephen D. Rosenthal, Attorney General; Margaret Ann B. Walker, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Present: Judges Baker, Coleman and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Wilbert Lee Camp was convicted in a jury trial of armed robbery, possession of a firearm by a felon, and use of a firearm in the commission of robbery. Camp contends (1) the trial court erred in finding that the police reasonably suspected that he was involved in criminal activity, and (2) erred in finding that the police did not exceed the permissible bounds of the investigatory stop. We disagree and affirm his conviction.
At approximately 6:30 p.m. on January 4, 1992, Officer Story received a radio report of an armed robbery in progress at the Family Dollar Store in Franklin. Story, who was 200 yards from the store, immediately responded. Within minutes, Story observed Camp walking about 100 yards from the store "at a very fast pace" with a "large bulge protruding from his left front pocket." Camp was was the only person in the area. As Story turned his patrol car in the direction of Camp, Camp ran.
Story pursued Camp in his car and then on foot. Story ordered Camp to stop, but Camp continued to flee. When Stor told Camp that he would be "fired upon," Camp stopped. Story feared that Camp might be armed because Camp was a suspect from the armed robbery. Story, with his firearm drawn, handcuffed Camp. During a weapons pat-down search, Story felt a large bulge in Camp's left front pocket. When Story removed the object, he discovered $980 in cash, a register voucher from the Family Dollar Store, and two personal checks payable to the Family Dollar Store. Camp was arrested, given his Miranda rights, and transported to the police station where two store employees identified him as the robber.
Three to five minutes had elapsed from the time Officer Story received the armed robbery report to the time he stopped and searched Camp.
At trial, Camp moved to suppress the evidence seized from him, his statements to the police, and the employee's identification of him. He appeals the denial of those motions.
I. REASONABLE SUSPICION
On denial of a motion to suppress, we consider the evidence in the light most favorable to the Commonwealth. See Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980).
The Fourth Amendment prohibits only "unreasonable" searches and seizures. Terry v. Ohio, 392 U.S. 1, 9 (1968). It is not unreasonable for a police officer to conduct a limited pat-down search for weapons, when the officer has "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.'"Lansdown v. Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110 (1983) (quoting Terry, 392 U.S. at 30, cert. denied, 465 U.S. 1104 (1984)).
Officer Story reasonably suspected that Camp had been involved in the armed robbery at the Family Dollar Store. Story observed Camp within minutes of the reported robbery within 100 yards of the scene of the crime. Camp was walking away from the store "at a very fast pace" with a bulge in his front pocket and was the only person in the vicinity. When Story turned toward Camp, Camp fled. On these facts, Story reasonably suspected Camp of criminal activity, justifying a Terry stop to inquire about Camp's possible involvement in the recent robbery. See Wells v. Commonwealth, 6 Va. App. 541, 552, 371 S.E.2d 19, 25 (1988) (officer had reasonable suspicion of criminal activity when defendant's car quickly pulled out of parking lot near the scene of a recent robbery); Howard v. Commonwealth, 210 Va. 674, 677, 173 S.E.2d 829, 832 (1970) (proximity to recent crime scene is factor that police may consider in determining whether to effectuate Terry stop); Hatcher v. Commonwealth, 14 Va. App. 487, 490, 419 S.E.2d 256, 258 (1992) (evasive conduct by defendant supports reasonable suspicion).
II. SCOPE OF TERRY SEARCH
Camp contends that Officer Story, by drawing a gun and handcuffing him, exceeded the investigative purpose of aTerry stop. We reject the contention.
A police officer who reasonably suspects a person to be involved in criminal activity should employ "the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Florida v. Royer, 460 U.S. 491, 500 (1983). However, in conducting an investigatory stop, a police officer may take all steps reasonably necessary under the circumstances to protect his or her safety, including drawing a weapon and handcuffing a suspect who might pose a threat of danger. See United States v. Hensley, 469 U.S. 221, 235 (1985). Simply put, "there is no reason why an officer, rightfully but forcibly confronting a person suspected of serious crime, should have to ask one question and take the risk that the answer might be a bullet."Terry, 392 U.S. at 33 (Harlan, J., concurring). A police officer has a right to take whatever steps are reasonably necessary to protect himself when making an investigatory Terry stop.
Officer Story was alone at night chasing a man suspected of armed robbery, a serious felony. The suspect refused to obey Story's command to stop. Camp would not place his hands in plain view. He had a large bulge in his front pocket, which could have been a weapon. The fact that it was not a weapon is not relevant; the officer's reasonable belief at the time controls. See Simmons v. Commonwealth, 217 Va. 552, 556, 231 S.E.2d 218, 221 (1977). Story testified that he considered Camp to be a danger "as long as he had use of his hands." Officer Story's drawing his weapon, handcuffing Camp, moving him to the patrol car before the pat-down search, and inquiring about Camp's involvement in the robbery were reasonable measures to reduce the threat of harm. The officer's actions did not convert theTerry investigative stop into an arrest. See United States v. Sinclair, 983 F.2d 598, 603-04 (4th Cir. 1993) (brief but complete restriction of liberty is valid under Terry).
The trial judge did not err by denying Camp's motion to suppress. We affirm the convictions.
Affirmed.