Opinion
Record No. 1347-92-1
Decided: October 4, 1994
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH, L. Cleaves Manning, Judge
Affirmed.
Michael C. Rosenberg (Marcus, Santoro Kozak, on brief), for appellant.
Donald R. Curry, Senior 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.
Gregory C. Prince (appellant) appeals from a judgment of the Circuit Court of the City of Portsmouth (trial court) that approved his jury convictions for robbery and use of a firearm while committing that felony. The orders granting this appeal limited the issues to whether the trial court erred (1) in denying appellant's motion to suppress tangible items of evidence seized at the Hotel Governor Dinwiddie on October 15, 1991, the date of arrest; (2) in denying appellant's motion to suppress evidence of an out-of-court identification which occurred on October 15, 1991 at Investors Savings Bank, 600 Crawford Street, Portsmouth, Virginia; and (3) in admitting John H. Underwood's testimony, which violated the attorney-client privilege.
Appellant's convictions stem from a robbery of the Investors Savings Bank (bank) that occurred on October 15, 1991. At approximately 11:30 a.m., John H. Underwood (Underwood), the Portsmouth Public Defender, observed appellant standing outside Underwood's office that was located four blocks from the bank. The bank was robbed approximately fifteen minutes later. On that date, Underwood was appellant's court-appointed attorney in a pending probation violation matter. Underwood consulted other members of the legal profession as to whether he could ethically testify and, after being relieved as appellant's counsel in the probation matter, agreed to tell the police what he had observed. Appellant's pretrial motion to exclude Underwood's testimony was denied.
At trial, Underwood described the clothing appellant was wearing when he observed him that morning as a black baseball cap, on which was written the word "Boss," a gray paisley shirt, and a pair of black denim jeans.
At 11:45 a.m. on October 15, bank employees, Sherrie Jones (Jones) and Joyce Dunning (Dunning), observed a black man enter the bank with a nylon stocking on his head, pulled down just below his nose. The man's hand was on the handle of a gun tucked into his jeans, and he was wearing a gray paisley shirt, dark stone-washed denim jeans, and white tennis shoes. The man approached Jones's teller window and told her, "I want all your money." Jones detected a strong odor of alcohol and gave the man "a couple of hundreds and a couple of fifties," but the man banged on the counter and demanded "bigger bills." Jones then grabbed some money, including the "bait money," and gave it to the man. Jones stated that during the encounter the man was holding the gun tightly, with his finger on the trigger, and she feared he was going to shoot her. As the robber left, he walked over to a planter and "did something," then exited through the back door.
When Jones gave the robber the "bait money," it triggered a silent alarm, and two detectives arrived at the bank just after the robber left. Jones gave a description of the man.
The Hotel Governor Dinwiddie (hotel) is located approximately three blocks from the bank. A hotel clerk testified that just after noon on October 15, she saw appellant inside the hotel wearing clothes as described by Underwood. The clerk further testified that she required appellant to sign a register before visiting a hotel guest named Wilson, who appellant said he had come to visit. Appellant signed the register as "Greg."
Andrew Wilson (Wilson) testified that he was a guest at the hotel but did not know appellant. Wilson said that appellant appeared at his room door and asked to use his bathroom. Wilson declined appellant's request. Wilson further testified that at the time appellant was wearing "a shirt and a pair of jeans."
On the same date, Jerry Morris (Morris) was a resident of the hotel and had left his room door open. He said appellant ran into his room and gave him $20 for a change of clothing. Appellant selected a red sweatsuit, discarded his own clothes, put the sweatsuit on, and ran out the door. Thereafter, Morris disposed of appellant's clothes in the hotel's third floor "trash room."
Officer R. R. Huntington (Huntington) received a dispatch concerning the robbery at 11:47 a.m. The dispatch described the robber as:
a black male approximately five foot six to five foot eight inches tall wearing dark gray pants, gray shirt, stocking mask over his face and he was supposed to have had a handgun tucked into the front waistband of his pants, and as he was leaving the bank he was supposed to have picked up a black bag that was laying in the flower pot. . . .
Huntington was also told in what direction the robber had fled and that the robber had "an odor of alcohol about him." While driving in the area, Huntington received a report that a "suspicious person" had been observed by the hotel clerk.
Huntington arrived at the hotel at about 12:15 p.m. and was told by the hotel clerk that a man wearing clothes similar to the robber had entered the hotel and tried to go upstairs without signing in. After signing in, the clerk had accompanied the man upstairs to the room of the person he said he was visiting. When Wilson said that he did not know the man, the clerk asked the man to leave the hotel. The man refused and remained inside the hotel.
Dressed in his uniform, with his badge displayed, Huntington waited at the base of the first floor stairs. At approximately 12:30 p.m., Huntington heard someone running down the stairs and observed appellant, a black male, dressed in a red sweatsuit, wearing white tennis shoes, and carrying a black bag. As soon as appellant made "eye contact," he stopped, turned, and fled back up the stairs. Huntington ordered appellant to stop and drop the bag. Huntington was concerned about the bag because the robber had been armed, and the bag was large enough to hold a handgun. Appellant complied with Huntington's commands and was placed face down on the floor with his hands behind his head. For safety reasons, Huntington "checked him for weapons" and found none. Huntington detected an odor of alcohol. Another officer looked inside the bag to see if it contained the handgun and discovered that it was "full of money." The money found was subsequently identified as that taken during the robbery, including the "bait money."
Appellant was arrested. The police led him down the stairs, and the hotel clerk identified him as the man she had observed earlier. From a trash bag at the hotel, police recovered, among other things, a pair of pantyhose with a knot tied in them, a pair of faded black jeans, a gray shirt, and a black cap. The hotel clerk identified the jeans, shirt, and cap as those worn by appellant when he first entered the hotel.
The police then transported appellant back to the bank where Jones and Dunning identified him as the robber. According to Jones and Dunning, appellant was wearing different clothes, but he was still wearing the same white tennis shoes.
Appellant did not testify and presented no evidence on his behalf.
I. Evidence Seized At The Hotel
In his pretrial motion "to suppress all evidence seized as incident to his arrest," appellant asserted that his arrest "was without probable cause and that the officers did not have a reasonable suspicion to detain him or to search him [or] . . . grounds to arrest him and bring him to the" bank. We disagree.
When Huntington confronted appellant on the hotel steps, he knew the robber's race, approximate height, that the robber was armed with a handgun, and that as the robber ran from the bank, he was carrying a black bag. Further, Huntington had been told that the robbery had occurred less than a half hour before his confrontation with appellant, at a location less than four blocks from the crime scene. Prior to the confrontation, Huntington also knew that a man had entered the hotel, wearing the clothes and otherwise matching the description he had been given. When confronted, appellant was carrying a black bag and, upon making eye contact with the officer, appellant attempted to flee.
Terry teaches . . . in the interest of "effective crime prevention and detection . . . a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." [ Terry v. Ohio, 392 U.S. 1, 22 (1968).] In order to justify such a seizure, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. at 21.
Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2d 645, 647 (1992). Thus, "if 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 order to determine what cause is sufficient to authorize police to stop a person, cognizance must be taken of the 'totality of the circumstances-the whole picture.'Assessing that whole picture, 'the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.' "
Williams, 4 Va. App. at 65, 354 S.E.2d at 85 (citations omitted).
Viewing the totality of the evidence, it is clear that Huntington articulated reasonable suspicion of appellant's involvement in criminal activity. When Huntington saw the black bag and observed appellant attempt to flee, being aware of the facts as recited above, he was justified in physically detaining appellant. Moreover, having been informed that the robber was armed with a handgun, Huntington lawfully examined the contents of that bag. See Jones v. Commonwealth, 230 Va. 14, 18, 19, 334 S.E.2d 536, 539-40 (1985). We find no error in the trial court's refusal to suppress the evidence found by the officers at the hotel.
II. Out-of-Court Identification
At trial, appellant conceded that if his arrest at the hotel was lawful, his transport to the bank for the purpose of identification was not "unduly suggestive." See Delong v. Commonwealth, 234 Va. 357, 362 S.E.2d 669 (1987), cert. denied, 485 U.S. 929 (1988). As we have found the stop and subsequent arrest of appellant to be lawful, appellant's concession requires no further response.
III. Violation of Attorney-Client Privilege
We have reviewed the evidence concerning Underwood's testimony and find no error in the trial court's admission of his testimony.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.