Commonwealth of Virginia v. David Ray Williams

• Court: Court of Appeals of Virginia
• Decided: December 5, 2000
• Docket: 1756001
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Willis and Senior Judge Overton Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 1756-00-1 JUDGE JERE M. H. WILLIS, JR. DECEMBER 5, 2000 DAVID RAY WILLIAMS

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Robert W. Curran, Judge

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellant.

James A. Segall (Krinick, Segall, Moody & Lewis, on brief), for appellee.

The Commonwealth contends that the trial court erroneously

suppressed the heroin discovered when Williams was stopped for

investigation. We reverse the trial court's suppression order

and remand the case for further proceedings consistent with this

opinion.

I. BACKGROUND

In reviewing a trial court's ruling on a suppression

motion, we consider the evidence in the light most favorable to

the party prevailing below, in this case Williams. See

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 47, 48 (1991). We will not disturb the trial court's ruling

unless it is plainly wrong or without evidence to support it.

See Freeman v. Commonwealth, 20 Va. App. 658, 660, 460 S.E.2d

261, 262 (1995). The burden is upon the Commonwealth to show

that the trial court's decision was erroneous. See id.

So viewed, the evidence established that on December 6,

1999, Detective James Wilson and Detective St. Pierre of the

Newport News Police Department were patrolling the area of

Chestnut Avenue and 23rd Street looking for "wanted" suspects.

This is a high crime area, known for frequent illegal drug

transactions. The officers were in an unmarked police car and

were dressed in street clothes.

As the police car proceeded west on 23rd Street, a narrow

one-way street, and approached the intersection with Chestnut

Avenue, Detective Wilson saw Williams "coming from the corner,

up towards [the officer's] direction," heading east. The

sidewalk was elevated about six inches above the street.

Williams had been "talking to people on the corner." He left

the corner heading in the direction of the officers.

Detective Wilson was driving slowly. As Williams passed

the police car, he was "smiling." He had his "hands out" in a

manner demonstrated to the court by Detective Wilson and was

"looking down at an object in his hands." Detective Wilson saw

in Williams' hands "a small, white square . . . like waxed paper

or something." The paper was closed with a "pharmaceutical

- 2 - fold" used frequently "to put heroin in." Detective Wilson had

worked in the narcotics unit for over three years and had made

about one hundred arrests for heroin-related offenses.

Detective Wilson was asked, "you saw [the man] with what

you believed to be [, or] suspected [to be] what?" The

detective responded, "Heroin. The package looked like a package

of heroin."

Detective Wilson testified that, as Williams passed by the

unmarked police car, he trotted over to a parked sport utility

vehicle. The detective described the "trot" as something

between walking and running.

Once Williams entered the driver's side of the vehicle,

Detective Wilson backed his car up approximately "ten, twelve

feet," and blocked Williams' vehicle. He then identified

himself as a police officer. After doing so, he saw Williams

"reach down to his right side." Not knowing what this move

signified, Detective Wilson drew his firearm and ordered

Williams out of his vehicle. When Williams exited his vehicle,

Detective Wilson saw "a folded piece of wax type paper with a

spider emblem on it, sitting on the seat right where [Williams]

. . . reach[ed]."

Detective Wilson testified that the package on the vehicle

seat "was like a wax type paper folded in [a] pharmaceutical

fold," which is a special fold made in paper so that items

inside will not fall out. He described the package as similar

- 3 - to those containing "Goodies powder," except a "little bit

smaller." The package bore a spider web design, which Detective

Wilson had not seen before, but which he had been informed was

being seen on packages of heroin being distributed in the area.

Based on these observations and believing the package contained

heroin, Detective Wilson arrested Williams for possession of

heroin.

At the conclusion of the suppression hearing, the trial

court granted Williams' motion. It ruled as follows:

[B]ased on this evidence that I have seen, I do not believe that there was sufficient information for the officer to make the arrest. . . . He sees the person under the circumstances here. That is why I wasn't worried about the gun issue because I didn't think there is any question that he stopped the person and didn't go up and ask him some questions. I think this was a different type of arrest. So I am going to grant this defendant's motion with regard to [the heroin].

Pursuant to Code § 19.2-398(2), the Commonwealth appealed

the trial court's ruling.

II. ANALYSIS

In arriving at its decision to suppress the heroin, the

trial court made two erroneous holdings of law and one erroneous

finding of fact.

1. The trial court held:

It cannot be reasonably inferred from the mere presence of the defendant at the street intersection, and the street's reputation as a place for trafficking drugs, that the

- 4 - defendant was engaged in the illegal activity of drug distribution over a period of time the defendant was observed by detectives.

While it is true that mere presence alone in a high crime area

does not give rise to probable cause or to reasonable suspicion

of criminal activity supporting an investigative stop,

"'presence in a high crime area' is a factor which may be

considered in determining whether an investigatory stop is

appropriate." Welshman v. Commonwealth, 28 Va. App. 20, 32, 502

S.E.2d 122, 126 (1998) (en banc) (citing Brown v. Commonwealth,

15 Va. App. 232, 234 n.1, 421 S.E.2d 911, 912 n.1 (1992)).

2. The trial court considered the evidence in the context

of its sufficiency to support an arrest. Williams was not

arrested until after he had been removed from his vehicle and

Detective Wilson had seen the package bearing the spider emblem;

thus, giving him probable cause to believe the package contained

heroin. At issue with respect to the suppression motion was the

evidentiary context at the time Detective Wilson approached

Williams and required him to exit his vehicle. At this point,

Detective Wilson did not effect an arrest, but merely detained

Williams for investigation. This required only that he

entertain a reasonable suspicion based on articulable facts that

Williams was engaged in criminal activity. See Terry v. Ohio,

392 U.S. 1, 21-22 (1968); Phillips v. Commonwealth, 17 Va. App.

27, 30, 434 S.E.2d 918, 920 (1993).

- 5 - 3. In considering a trial court's ruling on a motion to

suppress, we review de novo the ultimate questions of reasonable

suspicion and probable cause. See Ornelas v. United States, 517

U.S. 690, 699 (1996). However, we "review findings of

historical fact only for clear error and . . . give due weight

to inferences drawn from those facts by resident judges and

local law enforcement officers." Id.

Considering the package in question, the trial court held,

"I don't think anybody could see this as clearly as you would

have to before you could come out and make an arrest." Nothing

in the evidence or in the character of the packet itself

supports the foregoing conclusion as a finding of fact. Indeed,

the conclusion is contrary to the detailed and uncontradicted

evidence.

Detective Wilson described in detail the package that he

saw in Williams' hands. He described its color and the material

of which it was made. He described the peculiar "pharmaceutical

fold" into which it was formed. He described the purpose of

that fold and the meaning of such a package to him in the

context of his experience as a police officer experienced in

illegal drug trafficking. His assertion that he saw the package

and his description of it were unchallenged. There can be no

question that he saw what he described.

"If a police officer has reasonable, articulable suspicion

that a person is engaging in, or is about to engage in, criminal

- 6 - activity, the officer may detain the suspect to conduct a brief

investigation without violating the person's Fourth Amendment

protection against unreasonable searches and seizures." McGee

v. Commonwealth, 25 Va. App. 193, 202, 487 S.E.2d 259, 263

(1997) (en banc) (citation omitted). Reasonable suspicion is

"'a particularized and objective basis' for suspecting the

person stopped of criminal activity." Ornelas, 517 U.S. at 696

(citation omitted).

Detective Wilson articulated abundantly the facts upon

which his suspicion was premised. The reasonableness of his

suspicion must be judged in the context of his experience as a

police officer. See Richards v. Commonwealth, 8 Va. App. 612,

616, 383 S.E.2d 268, 270-71 (1989). Within the context of his

experience, his suspicion that Williams possessed heroin was

well founded upon the facts that he articulated and was thus

reasonable.

Detective Wilson's stop of Williams for investigation was

lawful. His removal of Williams from his vehicle for reasons of

personal safety was a reasonable and proper adjunct of that

investigation. The heroin package, with its peculiar spider

emblem, was then in plain view, providing probable cause that

Williams possessed heroin, supporting its seizure and his

arrest. Therefore, the heroin should not have been suppressed.

- 7 - The judgment of the trial court is reversed, and this case

is remanded for further proceedings consistent with this

Reversed and remanded.

- 8 -