Commonwealth v. Hendrick

COMMONWEALTH OF VIRGINIA v. RICHARD HENDRICK, S/K/A RICHARD ALVIN HENDRICK

No. 1054-22-2

Court of Appeals of Virginia

December 29, 2022

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Jacqueline S McClenney, Judge

Lauren C. Campbell, Assistant Attorney General (Jason S. Miyares Attorney General, on briefs), for appellant.

Kelsey Bulger, Senior Appellate Attorney (Virginia Indigent Defense Commission, on brief), for appellee.

Present: Judges Humphreys, Malveaux and Causey Argued by videoconference

MEMORANDUM OPINION ^[*]

MARY BENNETT MALVEAUX, JUDGE

Richard Alvin Hendrick was indicted for two counts of possession of a controlled substance with intent to distribute, in violation of Code § 18.2-248(C). He filed a pretrial motion to suppress the drug evidence, which he alleged was discovered during an unlawful search of his car. Following a hearing the trial court granted the motion and suppressed the evidence. Pursuant to Code §§ 19.2-398(A)(2) and -400, the Commonwealth appeals the court's pretrial ruling. The Commonwealth contends that the drugs' discovery did not violate the Fourth Amendment because they were found during a protective sweep based upon a reasonable, articulable suspicion that Hendrick was dangerous and might access his car to gain control of a weapon. In the alternative, the Commonwealth argues that even if officers initially lacked reasonable, articulable suspicion, their discovery of the drugs was attenuated from their initial actions by Hendrick's later statement about a firearms charge, which provided a basis for a protective sweep. For the following reasons, we affirm the trial court's ruling.

I. BACKGROUND

In an appeal by the Commonwealth of a trial court order suppressing evidence, "the evidence must be viewed in the light most favorable to the defendant," the party who prevailed below. Commonwealth v. Peterson, 15 Va.App. 486, 487 (1992). We also "grant all reasonable inferences fairly deducible from that evidence" to the defendant. Commonwealth v. Grimstead, 12 Va.App. 1066, 1067 (1991).

Shortly before midnight on November 3, 2021, Officers Danko and Gomes of the Richmond Police Department saw Hendrick turn left after he failed to fully stop at a stop sign. Danko turned on his lights and siren, and the officers stopped Hendrick's car. Officer Burgess, who was driving nearby, arrived to assist as the traffic stop began. All three officers testified at the suppression hearing that the stop occurred in a neighborhood they consider a high-crime area, although Danko and Gomes stated that at the time of the stop, they were not investigating any active service call in the area.

Burgess parked where he had a "good view of [Hendrick's] driver's side door." He stated that as he "pulled up," he could see Hendrick "[h]unched over" and "leaning towards the steering wheel, going toward the floorboard . . . and then he looked back . . . in the mirror." Burgess testified that based upon his training and experience, Hendrick's movements indicated "somebody . . . trying to conceal something," and he was "[c]oncerned it[ ] [was] a weapon." Gomes also testified that as he was getting out of Danko's car, he saw Hendrick "make a movement towards the steering wheel . . . his hands were down toward the floorboard." Danko, approaching Hendrick's car from the driver's side, heard Burgess say that he "saw [Hendrick] reaching under the seat."

Danko walked up to the driver's side window, where Hendrick, the car's sole occupant, was visible sitting upright with his hands in view.^[1] After greeting Hendrick, Danko immediately requested that he step out of the car; he also asked Hendrick if he had any weapons in the car. Hendrick answered, "[n]o, sir," and stepped out. Danko handcuffed Hendrick and asked him if he had any weapons "on [him]." Hendrick replied that he did not. Danko and Burgess conducted a pat-down search of Hendrick, based upon their location in a high-crime area and Burgess' statement that Hendrick had been "reaching under the seat." Danko testified that such "furtive movements . . . normally indicate that someone is trying to either stash a firearm or a weapon" and that "at that point, I thought that Mr. Hendrick might be armed." Danko also stated that the only reason he asked Hendrick to get out of his car during the traffic stop was because of Burgess' statement and that Hendrick had been polite and cooperative throughout the stop. Burgess and Danko did not find any weapons on Hendrick.

As soon as Hendrick was handcuffed, Gomes "started to conduct a protective sweep of the vehicle," beginning with the driver's compartment. Hendrick, who was standing with Danko and Burgess at the rear of his car following the pat down, told the two officers that the mother of his child lived nearby. When Burgess asked him, "[w]hat were you just reaching around for in the front seat?", Hendrick replied that he had been "fixing [his] boot." He then told the officers that he had "just c[o]me home" from "a gun charge."

After hearing Hendrick's "gun charge" statement, Burgess stepped over to Hendrick's car and opened the front passenger's door to speak with Gomes; at that point, Gomes had been looking through the driver's compartment for just over one minute. Burgess told Gomes that Hendrick had "sa[id] he just came home from a gun charge, felon with a firearm . . . charge." Gomes testified that after hearing this, he continued his protective sweep of the driver's compartment before moving to search the back seat area.

Burgess testified that after informing Gomes about Hendrick's statement, he joined in the protective sweep. He first examined the front passenger compartment of Hendrick's car before moving to the back seat area. During this time, Burgess and Gomes discussed Hendrick's movement. Burgess told Gomes, "[d]ude, he was divin' in the front, so I don't know if he shoved some shit down his pants," and "[h]e definitely was in the front. He had something down his pants, I think." He also stated, "[i]f I was a betting man, he put it down his nuts."

About a minute after joining Gomes, Burgess moved to the driver's compartment. Seconds later, a police dispatcher, who had checked Hendrick's record after officers provided her with his name and Social Security number, radioed the officers that her check was "showing a probably armed." Thirty seconds after the dispatcher imparted this information, Burgess announced to Gomes, "[o]h, there you go. There's all the drugs right there."

Burgess testified that in "a little gap" that was "[u]nder the steering column," he could see "a knotted . . . baggie sticking out." The baggie appeared to contain a white substance. Subsequent analysis by the Virginia Department of Forensic Science determined that the baggie's contents comprised cocaine and a mix of heroin and fentanyl. Burgess stated that the gap where he found the baggie was in the area where he had seen Hendrick reaching. He also stated that the gap was sufficient to accommodate a knife or a "small Glock, definitely a Derringer."

During cross-examination, Burgess acknowledged that during Hendrick's pat down, he had specifically checked his groin and "didn't feel any weapon." He also stated that "[if] there was a weapon in [Hendrick's] pants, yes, I'm pretty confident I would have felt it." Burgess also testified that Hendrick had large sums of money on him. He acknowledged that Hendrick had simply told him that he had a "gun charge," and "didn't tell me what gun charge it was" or whether it constituted a felony or a misdemeanor; rather, Burgess had "assume[d] it's a felony gun charge." After Burgess found the baggie under the steering column, he "didn't continue to search the [driver's] compartment."

Hendrick filed a motion to suppress and, following a hearing, the trial court entered an order granting the motion. The court found that Hendrick

was driving through a high crime area at 11:55 p.m. He was pulled over for . . . a traffic infraction. When the officers pulled [him] over . . ., they did not know the identity of the driver. The officers were not responding to [a] call or actively investigating criminal activity. They were simply patrolling the area and witnessed a traffic infraction. As they approached the vehicle, Officer Burgess called out that he saw [Hendrick] making what he classified as a "furtive movement"-leaning over the steering wheel and reaching toward the floorboard. When Officer Danko approached the driver's side window, [Hendrick] had his hands on the steering wheel and was sitting upright. He did not appear nervous and he made no further "furtive movements."

Based upon these circumstances, the court held that the officers lacked reasonable, articulable suspicion to conduct a protective sweep of Hendrick's car. The court also rejected the Commonwealth's argument, based upon the attenuation doctrine, that Hendrick's subsequent statement about just coming home from a gun charge provided a reasonable, articulable suspicion supporting a sweep. The court found that at the time Hendrick made his "gun charge" statement "the officers had already moved from a sweep to a search," and held that the attenuation doctrine was not applicable.

This appeal followed.

II. ANALYSIS

On appeal of an order granting a defendant's motion to suppress, the Commonwealth has the burden to show that the ruling constituted reversible error. See Murphy v Commonwealth, 264 Va. 568, 573 (2002). Upon review of the ruling, the appellate court is bound by the trial court's factual findings "unless they are plainly wrong or without evidence to support them." Peterson, 15 Va.App. at 487. See also Code § 8.01-680. "In addition, we 'give "due weight to the inferences drawn from those facts by resident...