COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Petty, Chafin and Decker Argued by teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION* BY v. Record No. 2287-14-1 JUDGE MARLA GRAFF DECKER MAY 26, 2015 DUSTIN LEE CORRELL
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge
Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellant.
Matthew E. Ballard (Smith Law Firm, P.L.C., on brief), for appellee.
Dustin Lee Correll (the defendant) was indicted for possession of heroin with the intent to
distribute in violation of Code § 18.2-248. Pursuant to Code §§ 19.2-398 and -400, the
Commonwealth appeals a pretrial ruling granting the defendant’s motion to suppress evidence
recovered as a result of the search of his vehicle during a traffic stop. The Commonwealth contends
that a reasonable concern for officer safety supported the search and, consequently, the trial court
erred in suppressing the evidence. The record, viewed under the appropriate legal standard for a
Commonwealth’s appeal, supports the trial court’s conclusion that the facts did not provide an
objective basis for the officer to suspect that the defendant was armed and dangerous. Therefore,
we affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND1
During the hearing on the defendant’s motion to suppress, Officer Walter Williams, Jr.,
of the Hampton Division of Police, testified regarding the events that led to the defendant’s
arrest. Williams first observed the defendant in the driver’s seat of a truck parked outside a
residence. The officer saw another man in the passenger seat of the truck. As Williams watched,
the man in the passenger seat got out of the vehicle and went into the house. He returned briefly
to the truck, then again got out and went back into the house. Officer Williams believed an item
was either being brought to or taken away from the truck. Williams followed the defendant
when he drove away moments later.
The officer testified that as he followed the truck, he saw the defendant bend down as
though he was reaching toward the floorboard or center console as he drove. The defendant
repeatedly looked back at Williams. According to the officer, the defendant was so distracted
that “his back tires ran into the median.”
Williams initiated a traffic stop based on a non-functioning brake light on the defendant’s
vehicle. The defendant stopped his truck immediately, behavior that Officer Williams described
as unusual. Williams believed that the defendant was hiding “something,” possibly a weapon,
and radioed for backup. Before the second police officer arrived, however, Williams approached
the truck. While the defendant was seated in the vehicle, he did not make any movements that
caused Williams concern for his safety. The defendant fully cooperated with the officer.
1 On review of a ruling on a motion to suppress, this Court is “bound by the trial court’s findings of historical fact 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). To the extent that the trial court did not make explicit findings of fact, we view the evidence and the inferences deducible from it in the light most favorable to the defendant, who prevailed below. See Satchell v. Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253, 256 (1995) (en banc).
-2- Williams noted that during their encounter, the defendant appeared nervous. According to the
officer, he was breathing heavily and his hands shook.
Minutes later, a second officer arrived. Officer Williams asked the defendant to step out
of the truck, and he complied with the request. As they spoke, the defendant patted his jacket
pocket twice and then put his hand inside the pocket. Williams “told him to keep his hand out of
his pocket.” When asked why he had been reaching toward the truck’s center console while
driving, the defendant said that he had been throwing away trash. Williams, however, believed
that the defendant was hiding something.
The officer instructed the defendant to “stay back with the back-up officer” while he went
over to the truck. The defendant protested in “a high pitched tone.” Williams went directly to
the center console and looked inside, where he found illegal narcotics. The officer did not frisk
the defendant at any time prior to the search of the vehicle.
Officer Williams testified that the stop occurred in January at around 4:00 p.m. He
explained that the house where he had initially seen the defendant was a location that Williams
had visited twice within the preceding year in the course of narcotics investigations. At the time
of the traffic stop, Officer Williams was driving an unmarked car, but he explained that the
emergency light and antennas on his vehicle made it “obvious” that it was a police car. Although
his police badge, “raid vest,” and gun were visible, he was not wearing a standard police
uniform.
The prosecutor argued that the circumstances provided an objective basis to form a
reasonable suspicion that the defendant was armed and could “gain access to a weapon” in the
center console compartment of the vehicle. He cited this Court’s decision in McCain v.
Commonwealth, No. 0110-06-3, 2007 Va. App. LEXIS 193 (Va. Ct. App. May 8, 2007), as
support for his position, arguing that the facts were similar. Defense counsel agreed that the
-3- facts were similar and then pointed out that the Supreme Court of Virginia reversed the Court of
Appeals in that case. See McCain v. Commonwealth, 275 Va. 546, 659 S.E.2d 512 (2008).
The trial court took a recess in order to read the Supreme Court opinion in McCain. After
the recess, the court concluded the hearing in order to review other relevant law. At a later date,
the trial judge contacted counsel to notify them of his decision on the motion to suppress. The
court then set a date in order to explain the ruling in open court. The judge explained, for the
record, “The Commonwealth argued that the officer had a reasonable belief that the defendant
was armed and dangerous and as a result of that searched the vehicle. I found, however, that the
instruction[] from the Supreme Court of Virginia in McCain . . . was controlling in this case.”
The judge went on to summarize the officer’s testimony that the defendant’s “reaching
movements” led him to believe that the defendant was concealing a weapon. The trial court
noted, however, that this specific testimony was contradicted by Officer Williams’ actions of
approaching the defendant’s truck without waiting for backup to arrive and not immediately
having the defendant get out of the truck “to show his hands.” Further, the court discussed the
contradiction between the officer’s stated concern caused by the defendant’s patting his jacket
and the officer’s decision not to pat down the defendant. The court then ruled that “the
subsequent search of the vehicle was not appropriate.”
Defense counsel asked the trial court “for clarification” of whether it made a finding as
to “what . . . the officer’s motivation was in searching the interior of the truck.” The court
responded to the inquiry, stating,
I’m not sure that I need to make that finding in light of the fact that I made the finding that his actions were improper without—I don’t want to use the word improper. That his actions doing the search were without proper justification.
Based on my reading from the transcript and recollection from the officer’s testimony I do believe that the officer had
-4- substantial suspicions that there might be contraband in the vehicle and that may have led to his motivation and his search.
This appeal followed the trial court’s ruling granting the motion to suppress.
II. ANALYSIS
The Commonwealth argues that the trial court improperly relied on the investigating
officer’s subjective motivation in granting the defendant’s motion to suppress. The
Commonwealth also contends that under the circumstances, it was objectively reasonable for
Williams to search the passenger compartment of the truck pursuant to the “stop and frisk”
exception to the Fourth Amendment and Michigan v. Long, 463 U.S. 1032, 1049 (1983).
On appeal of a ruling granting a defendant’s motion to suppress, the Commonwealth
has the burden to show that the trial court’s ruling constituted reversible error. See Murphy v.
Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). “‘Ultimate questions of
reasonable suspicion and probable cause to make a warrantless search’ 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) (en banc) (quoting Ornelas v. United States, 517 U.S. 690, 691
(1996)). Although “we give deference to the factual findings of the circuit court, . . . we
independently determine whether the manner in which the evidence was obtained meets the
requirements of the Fourth Amendment.” McCain, 275 Va. at 552, 659 S.E.2d at 515.
The defendant did not contest the validity of the traffic stop and the accompanying brief
detention. The question before this Court is whether the evidence supports the trial court’s ruling
that during the course of the traffic stop, Officer Williams violated the defendant’s Fourth
Amendment rights by searching the center console of his truck.
The Fourth Amendment prohibits unreasonable searches and seizures. Buhrman v.
Commonwealth, 275 Va. 501, 505, 659 S.E.2d 325, 327 (2008). “A search is considered
-5- reasonable when it is either supported by a warrant, or when an exception to the warrant
requirement has been met.” Id.
One exception to the warrant requirement arises in the context of a protective search
during a roadside encounter. Long, 463 U.S. at 1048-49. The Supreme Court explained:
[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
Id. at 1049 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)); see also Arizona v. Gant, 556 U.S.
332, 346-47 (2009) (noting that its holding did not affect the Long exception for a vehicle search
conducted out of concern for officer safety).2
Relevant facts “in this analysis include characteristics of the area surrounding the stop,
the time of the stop, the specific conduct of the suspect individual, the character of the offense
under suspicion, and the unique perspective of a police officer trained and experienced in the
detection of a crime.” McCain, 275 Va. at 554, 659 S.E.2d at 517. “Nervous, evasive behavior
is a pertinent factor in determining reasonable suspicion.” Illinois v. Wardlow, 528 U.S. 119,
124 (2000). Additionally, an officer is permitted “to view the circumstances confronting him in
light of his training and experience, and he may consider any suspicious conduct of the suspected
person.” James v. Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92 (1996) (citing
Terry, 392 U.S. at 27). Further, whether the Fourth Amendment has been violated is a question
2 The Supreme Court concluded that police control of the suspect at the time of the search did not negate a reasonable fear that he was armed and dangerous. Long, 463 U.S. at 1051. The Court reasoned that an individual: (1) may “break away from police control and retrieve a weapon from his automobile,” (2) will reenter the vehicle after the detention ends, and (3) may be permitted by the police to reenter the vehicle during the investigative encounter. Id. at 1051-52. The Court, however, stopped short of allowing the police to “conduct automobile searches whenever they conduct an investigative stop.” Id. at 1049 n.14.
-6- to be determined from all the circumstances and is viewed under an objective rather than
subjective standard. See Terry, 392 U.S. at 21-22; Thomas v. Commonwealth, 57 Va. App. 267,
274, 701 S.E.2d 87, 90-91 (2010). Finally, “[r]easonableness is judged from the perspective of a
reasonable officer on the scene allowing for the need of split-second decisions.” Scott v.
Commonwealth, 20 Va. App. 725, 727, 460 S.E.2d 610, 612 (1995).
As an initial matter, the Commonwealth contends that the trial court “improperly relied
upon the subjective motivation of the officer.” However, a trial court is presumed to know the
law and to properly apply it to the facts in a case. Yarborough v. Commonwealth, 217 Va. 971,
978, 234 S.E.2d 286, 291 (1977). This presumption can be overcome only by “clear evidence to
the contrary.” Id. When considering whether a trial court applied an incorrect legal standard, the
judge’s comments must be viewed in context. Id.
A full reading of the record shows that the court took the case under advisement to
review the law before making its ruling. In rendering its decision, the court noted facts critical to
the objective standard. After the defense counsel specifically asked about a finding on Williams’
subjective motivation, the court explained that a finding on the investigating officer’s motive was
unnecessary. The court then simply mentioned that based on its recollection of the record, the
officer had “substantial suspicions” that there might be contraband in the truck. We conclude
that the record, taken as a whole, shows that the trial court based its ruling on the appropriate
objective standard and it does not rebut the presumption that the trial court understood and
correctly applied the law.
Turning to the merits of the case, the decision in McCain, 275 Va. 546, 659 S.E.2d 512,
is instructive. In that case, the Supreme Court considered a protective search of a passenger
during a traffic stop. Id. at 549, 659 S.E.2d at 514. The vehicle had parked briefly in front of a
house familiar to the officer from a previous drug investigation. Id. at 550, 659 S.E.2d at 514.
-7- McCain and a second occupant of the automobile briefly entered the house and then got back
into the car. Id. at 550, 552, 659 S.E.2d at 514, 516. The vehicle left the location, and the officer
stopped it for a traffic violation in what he described as a high-crime area. Id. at 550-51, 659
S.E.2d at 514-15. The driver’s operator’s license was suspended, and the car needed to be
towed. Id. at 550, 659 S.E.2d at 515. When McCain, the passenger, got out of the car, the
officer frisked him. Id. at 550-51, 659 S.E.2d at 515. McCain immediately became nervous. Id.
at 551, 659 S.E.2d at 515. The officer found a gun and cocaine on the defendant’s person. Id.
The Supreme Court held that these circumstances did not provide an objectively reasonable
suspicion that McCain was armed and dangerous. Id. at 554, 659 S.E.2d at 517. The Court
explained that “[a]lthough the character of the location and the time [were] relevant factors, they
did not provide [the officers] a particularized and objective basis for suspecting McCain was
armed and dangerous.” Id. Additionally, the Court found that the circumstances did not provide
a basis for a reasonable suspicion that McCain was involved with drugs. Id. at 554-55, 659
S.E.2d at 517. The facts in this case are similar to those in McCain.
Here, the defendant appeared to be nervous when the police officer began following his
truck. “‘[N]ervous, evasive behavior is a pertinent factor’ for consideration in assessing the
totality of the circumstances.’” Id. (quoting Wardlow, 528 U.S. at 124). While the record
establishes that the defendant was nervous, there is nothing in the record that shows that he was
evasive. In fact, he stopped his vehicle as soon as the officer activated his emergency lights and
was cooperative during the stop.
The Commonwealth emphasizes that the defendant’s nervousness occurred in
conjunction with his “furtive movements” and additional facts giving rise to the inference that he
participated in a drug transaction. The Commonwealth describes the defendant’s actions of
leaning toward the console and floor and then, after the stop, patting and reaching into his jacket
-8- pocket as “furtive.” Williams believed that the defendant was “hiding something,” even though
the officer did not see any object and the defendant told him that he leaned over in order to throw
away trash.
We must consider the circumstances surrounding the defendant’s movements inside and
outside of the truck. See Asble v. Commonwealth, 50 Va. App. 643, 649, 653 S.E.2d 285, 288
(2007) (considering whether the driver’s movement “was a furtive gesture responsive to the
approach of a policeman” where the officer was not in uniform and had not activated the
emergency lights on his police car). The police car was unmarked, and Williams was not in a
standard police uniform. The officer was also seated in his unmarked car, driving behind the
defendant. Further, the defendant’s allegedly furtive movements while driving took place before
Williams activated the unmarked police car’s emergency lights. The officer also described the
defendant as reaching for his jacket pocket and putting his hand in it. The defendant suggested
that this behavior was not “furtive” because it was winter. The defendant’s movements were not
“inherently culpable,” and the record does not establish that his movements were in response to
the presence of law enforcement or suggested that a weapon was hidden inside the vehicle. See
id.
The Commonwealth argues that the defendant’s stop in front of a house associated with
drug activity, coupled with the officer’s belief that something was being transferred between the
truck and the house, heightened the danger that the defendant had a gun based on the connection
between drugs and firearms. See Bandy v. Commonwealth, 52 Va. App. 510, 518, 664 S.E.2d
519, 523 (2008) (recognizing a link between illegal drugs and guns). However, McCain was also
in a vehicle parked in front of a house associated with drug activity, and he, like the occupant of
the defendant’s truck, entered the house briefly before returning to the automobile. McCain, 275
Va. at 550, 552, 659 S.E.2d at 514, 516. The Supreme Court concluded that McCain’s actions
-9- were not enough to provide a reasonable suspicion of criminal activity. Id. at 553, 659 S.E.2d at
516. Officer Williams saw a second person get out of the passenger seat of the defendant’s
truck, go briefly into a house that had previously been associated with drugs, return briefly to the
defendant’s vehicle, and then go back into the house. As in McCain, the defendant’s behavior
here did not give rise to a reasonable suspicion that he had engaged in a drug transaction. Thus,
there is nothing to suggest the presence of illegal narcotics and the resulting connection to a
weapon.
We also note that the traffic stop in McCain occurred in a high-crime area, and we do not
have similar evidence in this record. See Whitaker v. Commonwealth, 279 Va. 268, 276, 687
S.E.2d 733, 737 (2010) (explaining that whether an encounter takes place in a high-crime area is
relevant to a Terry analysis). The association of the house with drugs over the previous year was
not sufficient evidence to identify the neighborhood as a high-crime area. See McCain, 275 Va.
at 552-53, 659 S.E.2d at 516 (implying that the house’s association with previous drug activity
was a separate factor from the fact that the encounter occurred in a “high drug” area by
discussing the two circumstances separately).
The Commonwealth further contends that the facts in the instant case are distinguishable
from McCain because in that case the officer who conducted the pat down had a personal
practice of searching everyone with whom he interacted in that neighborhood. See id. at 551,
659 S.E.2d at 515. However, the Supreme Court did not consider the officer’s personal
motivation in conducting the search in determining that the circumstances did not “support a
reasonable suspicion that McCain was involved in criminal activity or was armed and
dangerous.” Id. at 555, 659 S.E.2d at 517.
Finally, consistent with the trial court’s findings, we note that Officer Williams’ actions
were inconsistent with a concern for officer safety. Williams approached the truck before the
- 10 - backup officer arrived, did not pat down the defendant’s person, did not instruct him to keep his
hands where the officer could see them, and did not ask him if he had any weapons.
Based on the facts of this case, and in light of the applicable legal standards, we agree
with the trial court and conclude that Officer Williams acted unlawfully when he searched the
console of the defendant’s vehicle. In the instant case, the facts did not provide an objectively
reasonable basis for suspecting that the defendant was armed and dangerous, even when giving
“due weight to the inferences drawn from [the] facts by . . . local law enforcement officers.”
McGee, 25 Va. App. at 198, 487 S.E.2d at 261.
Williams stopped the truck due to a non-functioning brake light, a minor traffic
infraction. Although the defendant looked at the unmarked police car several times before the
stop, and was nervous while interacting with the officer, he was completely cooperative with the
officer. Further, the encounter took place in the afternoon, rather than during the late hours of
the evening. Despite the fact that the officer believed that the defendant’s actions of reaching
toward the console indicated that he was hiding something, the officer did not see any object and
no facts in the record suggest that the defendant was hiding a weapon. Officer Williams did not
observe criminal behavior by the defendant and had not been given any information connecting
the defendant to criminal activity. These circumstances did not support a reasonable suspicion
that the appellant possessed a weapon in the vehicle. See generally United States v. McCraney,
674 F.3d 614, 621 (6th Cir. 2012) (affirming the conclusion that no reasonable suspicion
supported the protective search where a traffic stop occurred late at night and the officers saw
both the driver and passenger lean toward the floor of the car). While the circumstances may
have provided the officer with a hunch that the defendant might have been carrying a concealed
weapon in the truck, the trial court correctly concluded that they did not establish the objectively
- 11 - reasonable suspicion necessary to justify a search for weapons. Consequently, the search of the
defendant’s vehicle violated his Fourth Amendment rights.
III. CONCLUSION
Viewing the record in the light most favorable to the defendant, the Commonwealth did not
meet its burden of showing that the circumstances provided Williams a reasonable, articulable, and
particularized suspicion that the defendant was armed and dangerous. Consequently, we affirm the
trial court’s ruling granting the motion to suppress and remand the case, consistent with this
opinion.
Affirmed.
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