Opinion
Record No. 0970-92-1
March 8, 1994
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY WESTBROOK J. PARKER, JUDGE.
Stephen F. Forbes, for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Barry L. Holloway (defendant) was convicted in a bench trial of possession of cocaine with the intent to distribute and possession of a firearm while in possession of cocaine. On appeal, he complains that the trial court erred in refusing to suppress evidence discovered as the result of an unlawful seizure. 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 of the trial judge 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 the 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).
The record discloses that on October 11, 1991, Sgt. Phillip M. Hardison of the Isle of Wight Sheriff's Department was contacted by a known informant, with established reliability, and advised that "within the hour," "a black male known [as] Barry [would be] driving a yellow, small, two-door vehicle . . . through . . . Zuni . . . to [the] residence [of Louis Green] on Highway 614," "to sell cocaine," and "would be there just a few minutes." Hardison knew that Green lived on Highway 614 in Zuni and had a history of drug use.
Acting on this information, Hardison contacted Sgt. Mark A. Cornell, and the two men began surveillance of the lane leading to Green's residence. Within the approximate time related by the informant, Hardison and Cornell observed a "yellow two door car pull into the [Green] driveway." Though darkness prevented identification of the occupants of the suspect vehicle, a streetlight allowed Hardison to discern its color.
According to Hardison's testimony, the vehicle arrived within fifty-five to ninety minutes of his conversation with the informant.
The vehicle traveled to the end of the drive, beyond the sight of the officers, and remained there only "a very few minutes" before starting "back towards the highway." Hardison and Cornell proceeded down the lane, intending to stop the vehicle. When the interior of the yellow car was illuminated by the headlamps of the police vehicle, Hardison observed "the people in the car . . . move around nervously" and noticed one passenger "raise up and go down into his waistline." Hardison then activated his emergency lights, and the two vehicles stopped within twenty feet of one another.
Based upon the passenger's movements in the car and Hardison's past experience with "weapons" and "violence" related to "users and dealers of cocaine," Hardison approached the vehicle with his revolver drawn but "holstered" it once he "visually observe[d] where [the driver's] hands were, what was going on." He asked the operator, defendant, to step out of the car, conducted a weapons "pat-down," and requested and received permission to search the vehicle. A ".25 automatic" and cocaine were discovered during the search and protective "pat-down" of a passenger.
Defendant made a pretrial motion to exclude this evidence, arguing that the officers effected a warrantless arrest of defendant, without probable cause, when they stopped and approached his vehicle with weapons drawn. However, the trial court denied the motion, ruling that "the information and the things [Sgt. Hardison] knew gave him the right to stop the car and proceed as he did."
"It is clear that stopping a motor vehicle . . . and detaining the driver 'constitutes a "seizure" within the meaning of the Fourth Amendment. . . .'" Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988) (quoting Lowe v. Commonwealth, 230 Va. 346, 349, 337 S.E.2d 273, 275 (1985), cert. denied, 475 U.S. 1084 (1986)). However, not all seizures are unlawful. The Fourth Amendment prohibits only those which are "unreasonable."Terry v. Ohio, 392 U.S. 1, 8-9 (1968); Iglesias, 7 Va. App. at 99, 372 S.E.2d at 173.
A brief detention to investigate "incipient criminal activity" is not unreasonable when it is "supported by the officer's reasonable and articulable suspicion that criminal activity may be afoot." Layne v. Commonwealth, 15 Va. App. 23, 25, 421 S.E.2d 215, 216 (1992); see Terry, 392 U.S. at 21. "'[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)).
In Adams v. Williams, 407 U.S. 143 (1972), a known, reliable informant advised a police officer that "an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist." Id. at 145. In response, the officer proceeded to the automobile, reached through the driver's open window and "removed a fully loaded revolver from [the defendant's] waistband." Id. In affirming the conviction, the Supreme Court noted that a reliable informant had personally provided information to the officer that was "immediately verifiable at the scene." Id. at 146. Thus, the informant's "tip" "carried enough indicia of reliability to justify the officer's forcible stop of [the defendant]." Id. at 146-47.
Like Adams, the information of criminal activity in the instant case was provided by a reliable informant known to the officer. Additionally, Hardison witnessed the predicted approach of the described automobile to the named location very near the specified time. He also observed that the vehicle remained at the identified residence only a few minutes. Consistent withAdams, we conclude that such circumstances provided sufficient articulable and reasonable suspicion of ongoing criminal activity to justify an investigatory stop of defendant's automobile.
These circumstances and other evidence in the record clearly distinguish this case from Beckner v. Commonwealth, 15 Va. App. 533, 425 S.E.2d 530 (1993).
Defendant's contention that Hardison's approach, "with his gun drawn," constituted an arrest without probable cause is also without merit. "Once 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. . . .'"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)). Here, Hardison and Cornell were nearing a vehicle whose occupants appeared nervous and were suspected of drug distribution. One passenger made a suspicious motion "down into his waistline." The illumination of the interior of the suspect vehicle and the display of weapons were prudent responses to these dangerous circumstances and "reasonably necessary" to insure the officer's safety. See Williams v. Commonwealth, 4 Va. App. at 67, 354 S.E.2d at 86-87.