Commonwealth v. Augustus

COMMONWEALTH OF VIRGINIA v. JEVON GLENN AUGUSTUS, SR.

Record No. 1603-15-1

COURT OF APPEALS OF VIRGINIA

MARCH 11, 2016

UNPUBLISHED

Present: Judges Decker, AtLee and Senior Judge Frank

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE RICHARD Y. ATLEE, JR.

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

David W. Lannetti, Judge

Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

London C. Crounse (Andrew Protogyrou; Protogyrou & Rigney, PLC, on brief), for appellee.

This appeal arises from charges brought in the Circuit Court for the City of Norfolk ("trial court") against Jevon Augustus, Sr. for possession of cocaine and obstruction of justice. Pursuant to Code §§ 19.2-398 and -400, the Commonwealth appeals a pretrial ruling granting in part Augustus's motion to suppress. The trial court suppressed all evidence and statements, except for evidence of Augustus's alleged obstruction of justice. In so ruling, the trial court concluded that law enforcement violated Augustus's Fourth Amendment rights in stopping him, but that the obstruction of justice was a new and distinct crime. The Commonwealth assigns the following errors:

1. The trial court erred in finding that the police lacked a reasonable, articulable suspicion that Augustus had been involved in a drug transaction.

2. The trial court erred in finding that the police seized Augustus when they turned on their emergency equipment rather than when Augustus yielded to the police's authority and that Augustus obeyed the signal to stop.

3. The trial court erred in finding that the evidence of Augustus's traffic infractions was inadmissible and that the police lacked a reasonable, articulable suspicion or probable cause to believe that Augustus had committed a traffic infraction. The court further erred by not finding that the search of Augustus would have been supported by the probable cause for these offenses.

4. The trial court erred in finding that the police lacked a reasonable, articulable suspicion that Augustus had committed traffic infractions, thereby failing to consider that, under the totality of the circumstances, Augustus's behavior established further cause to investigate Augustus and to justify a drug-dog sweep.

5. The trial court erred in finding that the drugs and other evidence the police seized from Augustus pursuant to a valid arrest for obstruction of justice was "fruit of the poisonous tree."

6. The trial court erred in misapplying the so-called "new or distinct crime" doctrine to this case and in finding that, despite Augustus's valid arrest, the evidence the police secured following that arrest was inadmissible.

7. The trial court erred in suppressing the cocaine and other physical evidence the police seized pursuant to the arrest of Augustus and in suppressing the statements Augustus made following his stop and arrest.

For the following reasons, we affirm.

I. BACKGROUND

On January 4, 2014, two investigators (McCarthy and Allison) from the Norfolk Vice and Narcotics Division were parked in an unmarked police vehicle near the corner of Kincaid Avenue and Aspin Street in the City of Norfolk. At approximately 11:38 p.m., they observed a pick-up truck, driven by Augustus, pull over on the side of the road near an apartment complex. An individual approached the truck, opened the truck's passenger-side door, "leaned into the vehicle for a very brief period of time," shut the door, and "ran back towards where he came from." McCarthy and Allison could not see inside the cabin of the truck and could not determine whether the individual who had approached the truck had anything in his hands before or after reaching into the truck. At no time during the encounter with the individual did McCarthy orAllison observe Augustus move within the truck cabin or observe the individual and Augustus pass anything between them.

Augustus's truck pulled away from the curb. McCarthy and Allison notified Investigator R.W. Gillespie, who was in another unmarked car in the area, that they had observed a narcotics transaction and requested assistance pulling Augustus's truck over. Gillespie spotted the truck and began following it. McCarthy and Allison's vehicle soon caught up to Gillespie's vehicle. Gillespie activated his emergency equipment to initiate a stop based on the alleged drug transaction, and the other police vehicle followed suit.

The trial court, in a letter opinion, found the following with respect to what took place after law enforcement activated their emergency signals:

the truck sped up a little, but stayed under the posted speed limit; Augustus at one point appeared to "be almost standing up" behind the wheel; and the truck weaved several times within its lane.[¹] Gillespie testified that the truck was "a full one of the really large, like dually-type pickup truck[s]"[²] and that when he observed it, the truck "filled up the entire lane almost." He further testified that: Augustus's actions after the emergency equipment was energized were not "outlandish"; the weaving was the extent of any sort of traffic violation; and his stop was based solely on the alleged drug transaction. Augustus stopped his truck less than two blocks after Gillespie activated his emergency equipment.

Once Augustus pulled over, Gillespie and McCarthy approached the vehicle. Augustus cracked open the truck's driver's side window to pass his driver's license and registration to Gillespie. Gillespie described Augustus as appearing nervous; he was breathing heavily, staring straight ahead to avoid eye contact, and was "a little shaky." McCarthy also stated that Augustusseemed nervous, noting that his hands shook and he fidgeted with his phone. Augustus asked if he could close the window because he was cold. At some point, he closed the window and began making phone calls.

At approximately 11:42 p.m., Allison called a K-9 unit to the scene. When it arrived, at approximately 12:05 a.m., Gillespie asked Augustus to exit the truck. Augustus refused. Using the K-9, an officer conducted the narcotics sweep around the exterior of the vehicle, with Augustus still in his truck. The dog subsequently alerted on the truck's driver-side door handle. Again, Augustus was asked to exit the truck, and he refused. He stopped responding and stared straight ahead. Augustus was informed that by not exiting the truck as instructed, he was obstructing justice. The police did not inform Augustus why they pulled him over, nor did they explain his ongoing detention.

Once law enforcement determined that Augustus was not going to exit the truck voluntarily, one investigator then broke the truck's passenger-side window and unlocked the passenger-side door. Law enforcement removed Augustus from the vehicle and placed him in custody. McCarthy searched Augustus's person and felt an object in the groin area. He informed Augustus that he would be taken to the Police Operations Center (the "POC"), where they would retrieve the item. At the POC, the object, which turned out to be cocaine, fell from Augustus's pants during the search.

Augustus was charged with possession of cocaine and obstruction of justice. Augustus filed a motion to suppress, which the trial court granted as to all evidence and statements resulting from the stop and subsequent custodial search except for evidence related to Augustus's alleged obstruction of justice.

II. STANDARD OF REVIEW

On appeal of an order granting a defendant's motion to suppress, the Commonwealth bears the burden to show that the ruling constituted reversible error. See Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). Whether a warrantless seizure violated the Fourth Amendment presents a mixed question of law and fact. Jones v. Commonwealth, 279 Va. 521, 527, 690 S.E.2d 95, 99 (2010). Where, as here, the trial court makes express factual findings, we defer to such findings so long as they are supported by credible evidence. Satchell v. Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253, 256 (1995). We review de novo legal issues such as whether a particular set of facts provided reasonable suspicion or probable cause for a search or seizure. See Brooks v. Commonwealth, 282 Va. 90, 94-95, 712 S.E.2d 464, 466 (2011); Commonwealth v. Benjamin, 28 Va. App. 548, 552-53, 507 S.E.2d 113, 115 (1998).

III. REASONABLE SUSPICION OF DRUG TRANSACTION

The Commonwealth argues that the time of night, the character of the area, and the observations of trained law enforcement officers together provided reasonable suspicion of a narcotics transaction sufficient to justify a stop. We disagree.

Under well-settled principles of law, police officers may stop a person for the purpose of investigating possible criminal behavior even though no probable cause exists for an arrest. A stop is permissible so long as the officer has reasonable, articulable suspicion that criminal activity may be afoot. To establish reasonable suspicion, an officer must be able to articulate more than an unparticularized suspicion or "hunch" that criminal activity is afoot. The character of the location and the time at which a person is observed are relevant factors, but they do not supply a particularized and objective basis for suspecting criminal activity on the part of the particular person stopped.

McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 516 (2008) (citations omitted). Here, investigators observed a truck pull up to a curb, saw an individual approach thepassenger's side, open the door, lean in briefly, shut the door, and then leave. The truck then pulled away. Law enforcement could not see within the passenger compartment, did not see anything change hands, and did not observe any hand-to-hand contact. No one saw the pedestrian carrying anything before or after approaching the truck. The trial court's factual finding that it was not a "high crime" area was supported by the record.³

The facts are similar to those in McCain v....