Smith v. Com.

683 S.E.2d 316

55 Va. App. 30

Corey Tayvon SMITH v. COMMONWEALTH of Virginia.

Record No. 0892-08-2.

Court of Appeals of Virginia, Richmond.

October 6, 2009.

Jessica M. Bulos, Assistant Appellate Defender (Office of the Appellate Defender, on briefs), for appellant.

Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, Attorney General; William C. Mims, Attorney General, on briefs), for appellee.

Present: ELDER and POWELL, JJ., and COLEMAN, S.J.

ELDER, Judge.

Corey Tayvon Smith (appellant) appeals from his conviction for possession of a firearm by a convicted felon, rendered on his conditional guilty plea. On appeal, he contends the trial court erroneously denied his motion to suppress the fruits of a search of his person following a traffic stop of the car in which he was a passenger. We hold the evidence, viewed in the light most favorable to the Commonwealth, fails to support the trial court's ruling. Thus, we reverse the challenged conviction and remand for further proceedings consistent with this opinion.

I. BACKGROUND

On October 18, 2006, Richmond Police Detective Timothy Neville obtained a warrant for appellant's arrest for possession of a firearm by a convicted felon, based on an incident that had occurred that day. Richmond Police Officer Roger Harris arrested appellant on that warrant. Officer Harris then entered information about appellant's arrest into the department's computerized PISTOL database, after which PISTOL included the alert "probably armed" in reference to appellant.¹ PISTOL is a computerized system that is maintained by the police department and is accessible to officers in the field through the computers in their cars. "[O]fficers who come in contact with people who are probably armed narcotics sellers/users" may have such information entered into the PISTOL database so that, during a subsequent encounter with any such person, other officers in the field may consult the database for "officer safety" purposes.

On June 21, 2007, appellant entered an Alford plea to the charge of possessing a firearm after having been convicted of a felony, based on the October 18, 2006 offense for which Officer Harris had entered the information in PISTOL. Appellant also entered an Alford plea to a charge of possession of cocaine with an intent to distribute, which had an offense date of March 13, 2007.² The trial court sentenced appellant to ten years for the cocaine offense and five years for the firearm offense but suspended all but three months of that time on certain conditions including supervised probation.

At an unspecified time on September 18, 2007,³ eleven months after the offense date for appellant's firearm possession conviction and six months after the offense date for appellant's possession-with-intent-to-distribute conviction, two off-duty police officers, Hedman and Moore, were working at Hillside Court in south Richmond, a Richmond Redevelopment and Housing Authority (RRHA) property. Their purpose was to "[e]nforce trespassing [restrictions] in Hillside." While on routine patrol there, the officers observed a vehicle with a rear brake light out, and they activated their emergency equipment and effected a traffic stop of the vehicle. As part of their duty to prevent trespassing, they obtained identification from the car's two occupants, the driver and appellant, who was "the rear seat passenger" and was sitting "behind the driver's seat." The officers determined neither had any outstanding warrants. However, when Officer Hedman checked the interdepartmental PISTOL system, appellant's name "came back with an alert, `probably armed and a narcotics seller/user.'" "[O]nce [the officers] saw the alert for `probably armed,' they immediately addressed that, ... for officer safety...."

Officer Moore asked appellant to step out of the vehicle, and appellant complied. Officer Moore then asked appellant "if he had any weapons on him," and appellant said he did not. Officer Moore responded, "I'm going to pat you [down] and make sure," to which appellant responded, "[Y]ou're not going to search me." When Officer Moore began patting appellant down, he felt a gun in appellant's left front pocket⁴ and asked appellant about it. Appellant first failed to respond and then said the item was a lighter. Officer Moore then pulled a two-shot Derringer from appellant's pocket. At that time, Officer Hedman had not yet determined whether he would issue the driver a summons for the nonfunctioning brake light and the traffic stop had not yet been concluded.

Appellant moved to suppress the firearm, arguing information that he had possessed a firearm eleven months earlier on October 18, 2006, was insufficient to provide reasonable suspicion to believe he was armed and dangerous at the time of the traffic stop on September 18, 2007. The Commonwealth countered that the officers "should be able to rely on" the information in "[their] own system ... when they are out in the field doing their work." The trial court ruled that, given "the officer receiving information with regards to the fact that this person had been known to carry firearms," the officer "did not act impermissibly in conducting a pat down ... for purposes of the officer's safety."

After appellant entered a conditional plea of guilty to the offense and was sentenced, he noted this appeal. Following briefing and oral argument in this Court, we ordered counsel for both parties to submit supplemental briefs addressing "the effect, if any," of the decisions in Herring v. United States, 555 U.S. ___, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), and Montejo v. Louisiana, 556 U.S. ___, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009), on the question before the Court on appeal. Following the filing of those supplemental briefs, both counsel also presented supplemental oral argument.

II. ANALYSIS

On appeal of the denial of a motion to suppress, we view the evidence in the light most favorable to the Commonwealth. Mills v. Commonwealth, 14 Va.App. 459, 468, 418 S.E.2d 718, 723 (1992). "[W]e are bound by the trial court's findings of historical fact[, whether express or implicit,] unless `plainly wrong' or without evidence to support them[,] and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). We review de novo the trial court's application of defined legal standards such as whether probable cause or reasonable suspicion supported a seizure or search. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996).

Under settled constitutional principles, a law enforcement officer may conduct a Terry investigatory stop of an individual if the officer "reasonably suspects that the person ... is committing or has committed a criminal offense." Arizona v. Johnson, 555 U.S. ___, ___, 129 S.Ct. 781, 784, 172 L.Ed.2d 694, 700 (2009) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Additionally, once the officer has conducted a valid stop, he may frisk the person for weapons if he "reasonably suspect[s] that the person stopped is armed and dangerous." Id. In cases in which the stop is based on reasonable suspicion of a contemporaneous crime, the nature of the crime suspected may be sufficient to support a concomitant frisk for weapons. See, e.g., Terry, 392 U.S. at 28, 88 S.Ct. at 1883, 20 L.Ed.2d at 910 (noting the suspect's actions "were consistent with [the officer's] hypothesis that these men were contemplating a daylight robbery—which, it is reasonable to assume, would be likely to involve the use of weapons"); Jones v. Commonwealth, 272 Va. 692, 701 n. 3, 636 S.E.2d 403, 407 n. 3 (2006) ("`[I]t is reasonable for an officer to believe a person may be armed and dangerous when the person is suspected of being involved in a drug transaction.'" (quoting United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005))). In other cases, the basis for the stop will add little or nothing to the totality-of-the-circumstances analysis required to support a weapons frisk, and more will be required to provide reasonable suspicion to believe the suspect may be armed and dangerous. See McCain v. Commonwealth, 275 Va. 546, 554, 659 S.E.2d 512, 517 (2008) ("An officer may not automatically search a driver or his passengers pursuant to the issuance of a traffic citation ..., but he may frisk the driver and passengers for weapons if he develops reasonable suspicion during the traffic ... stop to believe the particular person to be frisked is armed and dangerous."); Harris v. Commonwealth, 262 Va. 407, 417, 551 S.E.2d 606, 611 (2001) (holding that trespassing is "an offense not generally associated with the wrongdoer being armed"); see also 4 Wayne R. LaFave, Search and Seizure § 9.6(a), at 625-27 (4th ed.2003) (discussing the types of offenses various jurisdictions have held are likely and unlikely to give rise to reasonable suspicion for a weapons frisk).

The United States Supreme Court has concluded that when a law enforcement officer conducts a Terry stop of a vehicle to investigate a traffic violation, the Fourth Amendment permits the officer to detain not only the driver but also the passengers for the duration of the stop, as long as the duration of the stop is reasonable. Brendlin v. California, 551 U.S. 249, 255-58, 127 S.Ct. 2400, 2406-07, 168 L.Ed.2d 132, 138-40 (2007). Most recently, in Johnson, 555 U.S. ___, 129 S.Ct. 781, 172 L.Ed.2d 694, the Court has clarified the application of Terry's stop-and-frisk principles to traffic stops, holding as follows:

[I]n a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in...