Cherry v. Commonwealth

1

KEYON LEROY CHERRY v. COMMONWEALTH OF VIRGINIA

No. 1906-22-1

Court of Appeals of Virginia

March 12, 2024

FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY W. Revell Lewis, III Judge

Charles E. Haden for appellant.

Jessica Bradley, Assistant Attorney General (Jason S Miyares, Attorney General; Rebecca M. Garcia, Assistant Attorney General, on brief), for appellee.

Present: Judges Humphreys, ^[*] Athey and Fulton Argued at Norfolk, Virginia

MEMORANDUM OPINION ^[**]

ROBERT J. HUMPHREYS JUDGE

Following a bench trial, the circuit court convicted Keyon Leroy Cherry of possessing a firearm having previously been convicted of a felony, in violation of Code § 18.2-308.2(A), possessing cocaine, in violation of Code § 18.2-250, and possessing a firearm while possessing a Schedule I or II controlled substance, in violation of Code § 18.2-308.4. Cherry argues on appeal that the circuit court erred by (1) denying his motion to suppress the evidence obtained following a traffic stop and (2) finding the evidence sufficient to support his convictions.

BACKGROUND

We recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

Before trial, Cherry moved to suppress cocaine and a firearm that law enforcement seized after stopping a vehicle in which Cherry was a passenger. He argued that the police lacked reasonable suspicion to believe that the vehicle's occupants were engaged in criminal activity at the time of the stop. On the night of the stop, Exmore Chief of Police Angelo DiMartino was patrolling in the "New Roads" area of Exmore, a small community on the Eastern Shore of Virginia. Around 10:25 p.m., he heard ten gunshots followed by a slight pause and then ten more gunshots. He reported the gunshots to the dispatch officer.

Exmore Police Officer Tyler Hinman responded to the dispatch by driving to a school on Broadwater Road, southwest of the New Roads area. A man there told Officer Hinman that he had also heard gunshots. The man's mother had reported that "two subjects, possibly armed, had walked through their backyard." Their house was on the corner of Occohannock Neck Road and Broadwater Road, slightly northwest of the New Roads area and separated from that area by woods.

Northampton County Sheriff's Deputy Christopher Lee Forbes testified that Officer Hinman told him that two suspects were seen walking behind a house on Broadwater Road and that one of the suspects was wearing all black with a black mask and was carrying a firearm. Deputy Forbes drove to an apartment complex near the New Roads area to search for the suspects. Using night-vision goggles, Deputy Forbes watched the wood line and the nearby roads and observed "a gray SUV going up and down" one of the area roads that led to a dead end.^[1] He testified that "[t]he vehicle would go in, turn around, come back out, go back in, turn around, come back out, turn around, go back into the dead-end area." Deputy Forbes notified dispatch about the SUV.

Deputy Forbes then encountered two individuals walking down the street, one of whom was wearing all black and had a black ski mask. When Deputy Forbes asked the men if he could talk to them, the man in the ski mask walked to a house while the other man walked into the woods. Deputy Forbes talked to the man near the house, who denied involvement in the shooting. After about two minutes, the suspect near the house ran into the New Roads area. Deputy Forbes gave chase but ultimately lost sight of the suspect.

Less than two minutes later, Deputy Forbes saw what appeared to him to be the gray SUV he saw earlier. The vehicle drove down Frederick Douglass Road and turned right onto Ruth Wise Drive toward the highway. Deputy Forbes instructed the other units to stop the SUV and see if there was someone wearing all black inside.

Chief DiMartino testified that he received a radio dispatch to stop a silver SUV driving on Ruth Wise Drive toward the highway. He stopped a vehicle that "looked silver" approximately 800 yards away from where Deputy Forbes was standing. Chief DiMartino did not observe any traffic infraction or other basis to stop the vehicle. A woman was driving, Cherry was in the front passenger seat, and a second woman and a baby were in the back seat. Chief DiMartino drew his firearm and ordered the passengers to keep their hands where he could see them. When Cherry reached down with his right hand, Chief DiMartino again ordered Cherry to put his hands in the air and repeatedly threatened to shoot him before ultimately removing him from the vehicle.

Rashonda Byrd testified that she lived on Frederick Douglass Road and that Cherry was at her house on the night of the stop. Around 11:00 p.m., Byrd, Cherry, Charity Webb (Byrd's sister), and Webb's 11-month-old child left Byrd's house to go to Royal Farms. Webb was driving what Byrd characterized as a blue or "[b]luish-greenish" vehicle. They turned onto Ruth Wise Drive where the police stopped them. Webb provided substantially similar testimony. She denied that the party had been driving around before leaving for Royal Farms.

The circuit court denied Cherry's suppression motion. Specifically, the court found that the events took place from approximately 10:25 p.m. until 11:05 p.m. and that it was "fair to infer" that the occupants of the vehicle Deputy Forbes saw driving on the dead-end roads were "looking to pick somebody up." The court further found that the vehicle in which Cherry was a passenger matched the description given by Deputy Forbes.^[2] Accordingly, the court concluded that there was reasonable articulable suspicion for the police to stop the vehicle.

The parties stipulated that the testimony at the suppression hearing would also serve as trial evidence. Northampton County Sheriff's Sergeant Steve Lewis testified that Cherry continued reaching back toward his seat even as Sergeant Lewis removed him from the vehicle. The Commonwealth presented evidence that the police discovered a firearm in the map pocket of the front passenger door with the grip plainly visible as well as cocaine on Cherry's seat, between the front passenger seat and the center console, and on a newspaper between the seats. Webb testified that she owned the firearm and presented receipts indicating that she had purchased the gun.

The circuit court denied Cherry's motion to strike the evidence and found Cherry guilty, finding that his hand movements "clearly indicate[d] that [he] knew" that the gun and drugs were there. Cherry now appeals.

ANALYSIS

I. Cherry's Suppression Motion

A "claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact." Turner v. Commonwealth, 75 Va.App. 491, 500 (2022) (quoting Murphy v. Commonwealth, 264 Va. 568, 573 (2002)). Accordingly, "we defer to the circuit court's findings of 'historical fact' unless such findings are 'plainly wrong or devoid of supporting evidence.'" Id. (quoting Saal v. Commonwealth, 72 Va.App. 413, 421 (2020)). "However, we consider de novo whether those facts implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the Fourth Amendment." Merid v. Commonwealth, 72 Va.App. 104, 109 (2020) (quoting Cantrell v. Commonwealth, 65 Va.App. 53, 56 (2015)).

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "The Fourth Amendment prohibits only unreasonable searches and seizures." Thompson v. Commonwealth, 54 Va.App. 1, 7 (2009) (quoting James v. Commonwealth, 22 Va.App. 740, 745 (1996)). "Reasonableness is judged from the perspective of a reasonable officer on the scene allowing for the need of split-second decisions and without regard to the officer's intent or motivation." Id. (quoting Scott v. Commonwealth, 20 Va.App. 725, 727 (1995)).

If "there are articulable facts supporting a reasonable suspicion" that a person is engaged in unlawful conduct, a police officer may, without violating the Fourth Amendment, stop that person "briefly while attempting to obtain additional information." Sidney v. Commonwealth, 280 Va. 517, 524 (2010) (quoting Hayes v. Florida, 470 U.S. 811, 816 (1985)). Reasonable suspicion is less than probable cause but more than an "inchoate and unparticularized suspicion or 'hunch.'" Atkins v. Commonwealth, 57 Va.App. 2, 19 (2010) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).

We conclude that the police had reasonable suspicion to stop the vehicle in which Cherry was a passenger. Chief DiMartino heard 20 gunshots late at night while patrolling in a residential area, gunshots that were corroborated by another Exmore resident. The police had reports that two suspects, one of whom was possibly armed and wearing all black, were in the area. Deputy Forbes encountered two individuals matching that description near a road with a dead end. One of the individuals fled when Deputy Forbes tried questioning him. Around the same time, Deputy Forbes observed a gray SUV drive down that dead end, make a U-turn, and then do so again several more times. These articulable facts made it reasonable for Deputy Forbes to believe that the SUV was looking for the suspects and may have information about the shooting.

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