Ramsey v. Commonwealth

1

JON'TA SHON GERMAINE RAMSEY v. COMMONWEALTH OF VIRGINIA

No. 1096-21-1

Court of Appeals of Virginia

November 9, 2022

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE John W. Brown Judge Dalgleish ^[1]

(Sanita Swift Sherard, on brief), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; David M. Uberman, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Present: Judges Malveaux, Fulton and Friedman

MEMORANDUM OPINION ^[*]

FRANK K. FRIEDMAN, JUDGE

Jon'Ta Shon Germaine Ramsey appeals his conviction for possession of a firearm by a violent convicted felon, in violation of Code § 18.2-308.2. He argues that the trial court erred by denying his motion to suppress and that the evidence was insufficient to uphold his conviction. We affirm.

BACKGROUND

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party [below]." Poole v. Commonwealth, 73 Va.App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). This standard requires us to "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 [from that evidence]." Bagley v. Commonwealth, 73 Va.App. 1, 26 (2021) (alteration in original) (quoting Cooper v. Commonwealth, 54 Va.App. 558, 562 (2009)).

After a grand jury indicted appellant for possession of a firearm by a violent convicted felon, appellant moved to suppress the firearm, asserting that the police violated his Fourth Amendment rights by illegally searching his vehicle.

Terry Kelly is appellant's brother. He was driving a Mazda with a passenger, Griffin, and pulled into a gas station mini-mart. Appellant pulled his Mustang in beside Kelly's Mazda.

Chesapeake Police Detective Ring testified at the suppression hearing that he was running license plates of cars leaving a gang member's funeral. Detective Ring ran the license plate for the Mazda belonging to Kelly and discovered that Kelly had a warrant out for his arrest. Detective Ring relayed this information to Chesapeake Police Officer Gosnell. Detective Ring ran appellant's tags as well and determined that his driver's license was suspended but did not convey that information to Officer Gosnell until later.

Officer Gosnell parked behind Kelly's Mazda without blocking appellant's vehicle. While Officer Gosnell spoke to Kelly, his passenger, Griffin, got out of Kelly's car and put a bag in the back seat of appellant's car. Officer Gosnell detained Kelly while he checked Kelly's information and confirmed the warrant. Appellant asked Officer Gosnell what was happening, and Officer Gosnell responded that Kelly had a warrant. Appellant then asked whether he could drive Kelly's car away, and Officer Gosnell told him that he could not take the car until after the police had verified Kelly's warrant.

Kelly asked appellant and Griffin to wait for him. Appellant then asked Officer Gosnell for permission to stay in the area; Officer Gosnell responded that "if y'all want to hang out for a second, I don't mind." Officer Gosnell testified that he never told appellant that he had to stay in the area or that he was not free to leave. He also testified that he never took appellant's license or registration and that his focus was on Kelly for the entire encounter.

Chesapeake Police Officers Migani and Roman arrived while Officer Gosnell was investigating Kelly. Officers Migani and Roman spoke with appellant and Griffin in a conversational tone about topics unrelated to the police investigation. They did not take appellant's driver's license or vehicle registration and did not block his vehicle. When appellant asked if he could get something out of his Mustang, Officer Migani told him, "you're good, you're good all day." Griffin and appellant each walked away, made phone calls, and bought refreshments from the gas station market with no interference from any officer. Griffin ultimately left the scene. Officer Migani testified that Griffin walked away entirely undisturbed.

At one point, Detective Ring drove up and told appellant that his driver's license was suspended. Appellant testified that he did not feel free to leave at that point, and so he called his girlfriend to see if she could come drive his car away. Officer Migani continued to make small talk with appellant. When Chesapeake Police K9 Officer Hills arrived, Hills told appellant that his dog was trained to alert to marijuana, cocaine, heroin, methamphetamine, and ecstasy and that his dog was going to sniff around appellant's car. Appellant admitted to smoking marijuana earlier in the day. Officer Hills responded that he was not concerned about that and asked appellant to step away from the car so that the dog did not bite appellant. Appellant testified that he told Officer Hills that he felt like he was being detained and asked the officer why he was being detained, but Officer Hills "wasn't trying to answer [his] question," focusing instead on "trying to conduct the free air sniff." Although that interaction is not included on any of the body camera footage submitted at the hearing or at trial, Officer Migani's body camera footage shows that while Officer Hills was conducting the dog sniff, appellant made a phone call, during which he stated, "I need you to come get me." The video then shows appellant turn to Officer Migani to say, "why am I being stopped? I feel like y'all are detaining me with him." Officer Migani told appellant that she did not know anything about that.

The dog sniffed around the Mustang in a counterclockwise circle and alerted by showing excitement and making noise. Officer Gosnell then detained and handcuffed appellant, who admitted to having marijuana in his pocket. The officers searched appellant's car and found a firearm in the back seat pocket.

Appellant argued that the officers lacked reasonable suspicion to detain him and conduct a dog sniff.^[2] The trial court opined that, based on the demeanor and actions of appellant and the officers and appellant's apparent freedom of movement around the scene, appellant "had every opportunity to leave" and "remained there at [his] own free will." Accordingly, the court concluded that appellant was not detained and denied appellant's suppression motion.

At the September 2021 jury trial, the officers provided testimony that was substantially similar to their suppression hearing testimony. Detective Ring additionally testified that he spoke with appellant after officers discovered the firearm. After Detective Ring read appellant his Miranda^[3] rights, appellant stated that the gun belonged to his girlfriend and that she left it in the car. Officer Gosnell and Officer Hills testified that they searched appellant's car and found a firearm with a magazine inside in the back map pocket. Ramsey also told Officer Gosnell that the gun belonged to his girlfriend and that she often leaves the gun in appellant's car.

The Commonwealth presented evidence that there was a fingerprint on the magazine inside the firearm that matched appellant's left thumbprint. Griffin's fingerprint was not on the firearm or magazine. Appellant moved to strike the evidence at the conclusion of the Commonwealth's case, which the trial court denied.

Appellant testified in his own defense and provided substantially similar testimony to that provided at the suppression hearing. He testified additionally that the firearm belonged to his girlfriend and that he did not know why his fingerprint was on the magazine but that he might have moved the magazine if he saw it in the apartment he shared with his girlfriend.

Appellant did not renew his motion to strike after his testimony. After closing arguments, the jury convicted appellant of possession of a firearm by a violent convicted felon, and the trial court sentenced him to five years' imprisonment. Appellant did not move to set aside the verdict, and this appeal followed.

ANALYSIS

I. Motion to Suppress

Appellant first asserts that the trial court erred by denying his suppression motion. "When reviewing a denial of a motion to suppress evidence, an appellate court considers the evidence in the light most favorable to the Commonwealth and 'will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.'" Taylor v. Commonwealth, 70 Va.App. 182, 186 (2019) (quoting Sidney v. Commonwealth, 280 Va. 517, 520 (2010)). "On appeal, a 'defendant's claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo.'" Cole v. Commonwealth, 294 Va. 342, 354 (2017) (quoting Cost v. Commonwealth, 275 Va. 246, 250 (2008)). "[A]n appellate court must give deference to the factual findings of the circuit court and give due weight to the inferences drawn from those factual findings; however, the appellate court must determine independently whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment." Moore v. Commonwealth, 69 Va.App. 30, 36 (2018) (alteration in original) (quoting Commonwealth v. Robertson, 275 Va. 559, 563 (2008)). "In ruling on the propriety of a trial court's decision on a motion to suppress, the appellate court considers the evidence introduced at the suppression hearing and at trial." Hairston v. Commonwealth, 67 Va.App. 552, 557 n.1 (2017).

Searches and Seizures

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. "Th...