Brandon Alexandria Dyer,s/k/a B.Alexander Dyer vCW

• Court: Court of Appeals of Virginia
• Decided: June 30, 1998
• Docket: 1827972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Elder Argued at Richmond, Virginia

BRANDON ALEXANDRIA DYER, s/k/a BRANDON ALEXANDER DYER MEMORANDUM OPINION * BY v. Record No. 1827-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK JUNE 30, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HANOVER COUNTY Richard H. C. Taylor, Judge Patrick R. Bynum, Jr., for appellant.

Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Brandon Alexandria Dyer (appellant) was convicted of

possession of cocaine with the intent to distribute in violation

of Code § 18.2-248 and possession of marijuana in violation of

Code § 18.2-250.1. He contends the trial court erroneously

admitted evidence obtained as a result of an unlawful

investigatory stop. For the following reasons, we affirm the

conviction.

I.

At 3:00 a.m. on January 2, 1997, while patrolling alone in

his police car, Sergeant Richard L. Farmer, Jr., observed a

vehicle parked near a convenience store. The car caught the

officer's attention because it was the only vehicle in the lot

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. and it was parked "all the way over on the right side" of the

building, rather than "in front where normal traffic would have

parked." As Farmer drove through the parking lot, the car exited

the lot and turned north on Route 1. Farmer followed at a

distance while he ran a license check to determine whether the

vehicle was stolen.

After approximately one-half mile, Farmer observed that the

vehicle "made a wide [right] turn, to the point where he went all

the way onto the entire left side of the roadway and his vehicle

was actually in the oncoming lane." When Farmer activated his

emergency lights to stop the vehicle, appellant, who was driving,

leaned forward over the steering wheel. As Farmer approached the

stopped car on foot, appellant was still bent forward, and his

right hand was hidden under his bulky sweatshirt. Farmer ordered

appellant to show his hand and exit the vehicle. As appellant got out of the car, Farmer believed he was

hiding something which could have been a weapon. Farmer frisked

him and felt a "large bulge that had a metallic feel to it" in

the front of appellant's pants. When asked what the large bulge

was, appellant reached into his pants. Concerned that appellant

might be reaching for a weapon, Farmer "wanted to control the

situation," and he grabbed appellant's wrist. Together they

pulled out a "cloth . . . zipper-type bag" large enough to hold a

knife or a gun.

Farmer asked what was in the bag, and appellant admitted

-2- that it contained drugs. Still feeling something metallic in the

bag, the officer took it from appellant and opened it. The bag

contained illegal drugs, $116 in currency, a key, a number of

loose coins, several miscellaneous papers, and a pack of

cigarettes.

The trial court denied appellant's pre-trial motion to

suppress the evidence seized during the traffic stop. At trial,

appellant entered a conditional guilty plea, preserving his right

to appeal the denial of the suppression motion. He was convicted

by final judgment entered July 7, 1997. II.

Appellant contends Sergeant Farmer lacked a reasonable and

articulable suspicion necessary to justify the investigatory

stop. He argues that Farmer's initial decision to follow

appellant's car was based on a "hunch" and as such tainted the

later stop of appellant's car. Appellant's argument lacks merit.

"'[W]hen the police stop a motor vehicle and detain an

occupant, this constitutes a seizure of the person for Fourth

Amendment purposes.'" Logan v. Commonwealth, 19 Va. App. 437,

441, 452 S.E.2d 364, 367 (1994) (quoting Zimmerman v.

Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988)). "As

a general matter, the decision to stop an automobile is

reasonable where the police have probable cause to believe that a

traffic violation has occurred." Whren v. United States, 116

S. Ct. 1769, 1772 (1996).

-3- In the instant case, Sergeant Farmer noticed appellant's

vehicle parked in an unusual location, and he ran a check on the

license plate number to determine whether the car was stolen. He

did not stop appellant at that time; he merely followed at a

distance while awaiting the results of the license check.

Notwithstanding appellant's argument to the contrary, Farmer

required no reasonable, articulable suspicion of illegal activity

to record and check the license plate number and follow

appellant's car at a distance for one-half mile, because these

actions did not constitute a seizure under the Fourth Amendment.

It was undisputed that during this time, Sergeant Farmer

observed appellant's vehicle make a wide right turn into the

oncoming traffic lane, a violation of Code § 46.2-846. 1 This

traffic infraction, which the officer witnessed, provided

probable cause to justify Farmer's stop of the vehicle.

Additionally, appellant argues that even if the

investigatory stop was justified, the subsequent pat-down search

of his person was illegal. We disagree.

"'Ultimate questions of reasonable suspicion and probable

cause' . . . involve questions of both law and fact and are

reviewed de novo on appeal." McGee v. Commonwealth, 25 Va. App.

193, 197, 487 S.E.2d 259, 261 (1997) (quoting Ornelas v. United

1 The relevant portion of the statute provides that "[b]oth the approach for a right turn and a right turn shall be made as close as practicable to the right curb or edge of the roadway." Code § 46.2-846.

-4- States, 116 S. Ct. 1657, 1659 (1996)). "[W]e give due weight to

the inferences drawn from [the] facts by resident judges and

local law enforcement officers." McGee, 25 Va. App. at 198, 487

S.E.2d at 261.

The appropriate standard to evaluate a pat-down search is

well established: It is not unreasonable for a police officer to conduct a limited pat-down search for weapons when the officer can point to "specific and articulable facts" "which reasonably lead[] him to conclude, in light of his experience, that 'criminal activity may be afoot' and that the suspect 'may be armed and presently dangerous.'"

James v. Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92

(1996) (citations omitted). Factors that may be relevant in

determining whether a pat-down was justified include "'the

characteristics of the area where the stop occurs . . . as well

as any suspicious conduct of the person accosted such as . . .

any nervous conduct on the discovery of [the officer's]

presence.'" Williams v. Commonwealth, 4 Va. App. 53, 67, 354

S.E.2d 79, 86-87 (1987) (citations omitted).

Here, Farmer observed appellant's traffic infraction and was

concerned that he might be driving under the influence of drugs

or alcohol. From the moment the officer activated his emergency

lights until he approached the vehicle, appellant was bending

forward over the steering wheel with his hand hidden beneath his

sweatshirt. Farmer believed appellant was hiding something from

him, and he reasonably suspected that it might be a weapon. This

-5- behavior, combined with the fact that Farmer was patrolling alone

at 3:00 a.m., provided an articulable suspicion that appellant

posed a threat to the officer's safety. We hold that a limited

pat-down of appellant's outer clothing was reasonable under the

circumstances.

Finally, appellant contends the seizure of the drugs was

unauthorized because the officer could not reasonably believe,

upon feeling the bag, that it was a weapon. While an officer is

conducting a pat-down search, if he feels an object that he

reasonably believes could be a dangerous weapon, the officer may

seize the object from the suspect's person. See Bolda v.

Commonwealth, 15 Va. App. 315, 317, 423 S.E.2d 204, 206 (1992).

"The officer need not be absolutely certain that the individual

is armed; the issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or

that of others was in danger." Terry v. Ohio, 392 U.S. 1, 27

(1968).

Under these facts, when appellant reached for the bulge with

the "metallic feel" in his pants, Farmer could reasonably believe

he was in danger. The officer's attempt to control the situation

by grabbing appellant's wrist was justified by his concern that

appellant might be drawing a weapon. Once appellant and the

officer removed the bag from the front of appellant's pants,

appellant admitted it contained drugs. That admission, in

conjunction with the officer's continuing concern that the

-6- metallic object in the bag was a weapon, provided Farmer with a

reasonable basis to conclude the bag contained contraband and

possibly a weapon. Therefore, the seizure of the bag was

justified.

For the foregoing reasons, we hold that the trial court

properly denied appellant's motion to suppress evidence of the

contents of the bag and affirm the conviction.

Affirmed.

-7- Benton, J., dissenting.

"Under the circumstances of this case, [Brandon Alexandria

Dyer's] conduct, viewed either in isolation as the officer

considered it or along with the other behavior as the court must

examine it, is utterly insufficient to generate a reasonable

suspicion that [Dyer] was involved in criminal activity."

Zimmerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 710

(1988). The evidence proved that the officer saw the defendant

in his automobile and lawfully parked at a convenience store near

pay telephones. Although the officer did not observe Dyer

violating any law, he concluded that Dyer was suspicious. When

the officer decided to "run[] the license on the vehicle," the

officer drove "slowly . . . behind [Dyer's] vehicle, look[ed] at

[Dyer], look[ed] at the license plate, [drove] around to the left

side, back[ed] up, and then watch[ed] . . . as [Dyer] backed up

and left." The officer saw Dyer commit no traffic or other

violations in the parking lot, leaving the parking lot, or

entering the highway. The officer followed Dyer from a distance

of "at least ten car lengths" as Dyer drove north on Route 1.

The officer saw Dyer commit no traffic offenses on Route 1. At Old Keaton Road, a secondary road that is not marked

except for a road sign, Dyer turned right. The officer testified

that Dyer's wide turn onto Old Keaton Road "heightened [the

officer's] suspicion as far as possibly . . . . driving under the

influence." When Dyer completed his turn, Dyer drove into the

-8- proper travel lane. After Dyer made the turn and drove in his

proper lane, the officer saw nothing else to indicate that Dyer

was not properly operating his vehicle. The officer followed

Dyer a short distance on Old Keaton Road and signaled Dyer to

stop.

Stopping an automobile and detaining its occupant

constitutes a seizure within the parameters of the Fourth

Amendment, even when the purpose of the stop is limited. See Delaware v. Prouse, 440 U.S. 648, 653 (1979). "Manifestly,

[Dyer's] conduct falls below activity necessary to justify a

reasonable suspicion that a violation of law had occurred or was

occurring." Zimmerman, 234 Va. at 612, 363 S.E.2d at 710. Not

every seemingly suspicious motion of a vehicle gives rise to a

reasonable suspicion of criminal conduct. See, e.g., Barrett v.

Commonwealth, 250 Va. 243, 247-48, 462 S.E.2d 109 (1995).

In making a turn, "[b]oth the approach for a right turn and

a right turn shall be made as close as practicable to the right

curb or edge of the roadway." Code § 46.2-846. This statute

does not require a driver to make a perfect turn. "[A] slightly

flawed right turn was not in and of itself enough to give an

officer a reasonable and articulable suspicion that the driver

was under the influence of alcohol." City of Mason v. Loveless,

622 N.E.2d 6, 7 (Ohio App. 1993). Indeed, if failures to follow

"perfect vector[s] down the highway . . . were sufficient reasons

to suspect a person of driving while impaired, a substantial

-9- portion of the public would be subject each day to an

[unreasonable] invasion of their privacy." United States v.

Lyons, 7 F.3d 973, 976 (10th Cir. 1993).

The evidence proved the officer saw Dyer maneuver his

automobile without incident in the convenience store's parking

lot. After Dyer backed his automobile, he drove from the lot and

turned onto Route 1. He violated no driving prohibitions in so

doing. The officer followed Dyer along Route 1. Dyer committed

no traffic violations while driving on Route 1. No evidence

proved that Old Keaton Road, a secondary road, had lane markings.

It was nighttime. No evidence proved that the intersection was

illuminated. When Dyer turned onto the street, which was marked

only by a street sign, no traffic was approaching. No evidence

proved that a safety problem was created or that Dyer drove

erratically. He merely made a wide turn onto a secondary road.

When viewed in its totality, this "isolated incident" failed to

generate a reasonable suspicion that Dyer was committing a

traffic violation or driving under the influence of alcohol. See

United States v. Gregory, 79 F.3d 973, 978-79 (10th Cir. 1996).

For these reasons, I would hold that the stop was illegal

and that the evidence seized as a result of the seizure should

have been suppressed.

-10-