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Joseph v. Commonwealth

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Mar 14, 1995
Record No. 1619-93-1 (Va. Ct. App. Mar. 14, 1995)

Opinion

Record No. 1619-93-1

Decided: March 14, 1995

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH, Johnny E. Morrison, Judge

Dianne G. Ringer, Assistant Public Defender (John H. Underwood, III, Public Defender, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: Judges Baker, Benton and Willis


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Jason Matthew Joseph was convicted in a jury trial of possession of cocaine and possession of a firearm while in possession of cocaine. On appeal, he contends that the trial court erred in denying his motion to suppress evidence of the cocaine and the firearm as fruits of an illegal search. We agree and reverse the convictions.

While on regular patrol on September 24, 1992 at approximately 5:10 a.m., Officer Edward Dawson observed Joseph standing with another man in the Lincoln Park area of Portsmouth. He passed them several times during the course of his shift. Each time he passed by them, the two men would separate. Officer Dawson called Officer Chitteck for back-up. The two officers approached Joseph and his companion. Officer Dawson asked Joseph his name and told him he wanted to do a Terry pat-down for weapons. Joseph did not consent to the pat-down. As a result of the pat-down, Officer Dawson found a gun and cocaine in the pocket of Joseph's jacket.

The record in this case establishes that the initial encounter between Joseph and Officer Dawson was consensual and implicated no Fourth Amendment interest. However, the consensual aspect disappeared when Officer Dawson conducted a pat-down of Joseph without his consent. Under such a restraint, no reasonable person would feel free to walk away. Thus, for Fourth Amendment purposes, Joseph was "seized" by Officer Dawson. Terry v. Ohio, 392 U.S. 1, 16 (1968). "In order to justify such a seizure, an officer must have a 'reasonable and articulable suspicion of criminal activity on the part of the defendant.' " Hatcher v. Commonwealth, 14 Va. App. 487, 490, 419 S.E.2d 256, 258 (1992) ( quoting Commonwealth v. Holloway, 9 Va. App. 11, 15, 384 S.E.2d 99, 101 (1989)).

The facts in the instant case were insufficient to give Officer Dawson an objectively reasonable basis for suspecting that Joseph was armed and dangerous. Officer Dawson had no information that Joseph was involved in criminal activity, nor had he observed Joseph participating in any criminal behavior. The fact that Joseph was in an area known for drugs is insufficient to support an inference that he was involved in criminal activity. Riley v. Commonwealth, 13 Va. App. 494, 498, 412 S.E.2d 724, 726-27 (1992). Joseph willingly talked with Officer Dawson and gave his name when asked. Nothing suggested that he was carrying a concealed weapon. See Payne v. Commonwealth, 14 Va. App. 86, 414 S.E.2d 869 (1992). See also Goodwin v. Commonwealth, 11 Va. App. 363, 398 S.E.2d 690 (1990) (officers patrolling high crime area witnessing defendant put hands in pockets not sufficient to constitute reasonable basis for detention). Therefore, the pat-down search was illegal.

For these reasons, the trial court erred in admitting the evidence of the cocaine and firearm. The judgment of conviction is reversed and the charges are ordered dismissed.

Reversed and dismissed.


Summaries of

Joseph v. Commonwealth

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Mar 14, 1995
Record No. 1619-93-1 (Va. Ct. App. Mar. 14, 1995)
Case details for

Joseph v. Commonwealth

Case Details

Full title:JASON JOSEPH, S/K/A JASON MATTHEW JOSEPH v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia. Argued at Norfolk, Virginia

Date published: Mar 14, 1995

Citations

Record No. 1619-93-1 (Va. Ct. App. Mar. 14, 1995)