Commonwealth v. Keith Franklin Weeden

• Court: Court of Appeals of Virginia
• Decided: December 3, 2002
• Docket: 1593022
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys Argued at Richmond, Virginia

COMMONWEALTH OF VIRGINIA

v. Record No. 1593-02-2 MEMORANDUM OPINION * BY KEITH FRANKLIN WEEDEN JUDGE RUDOLPH BUMGARDNER, III DECEMBER 3, 2002 COMMONWEALTH OF VIRGINIA

v. Record No. 1594-02-2

CEDRIC ANTHONY FASSETT

FROM THE CIRCUIT COURT OF HANOVER COUNTY John Richard Alderman, Judge

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on briefs), for appellant.

M. Cody Cowan (Arnold R. Henderson; Arnold Henderson & Associates, on brief), for appellee Keith Franklin Weeden.

Russell E. Allen (Witmeyer & Allen, P.L.C., on brief), for appellee Cedric Anthony Fassett.

Keith Franklin Weeden and Cedric Anthony Fassett were

charged with possession of marijuana and conspiracy to

distribute marijuana. The Commonwealth appeals the granting of

their motions to suppress evidence. Concluding the officers

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. lacked reasonable suspicion to conduct a pat-down search, we

affirm.

The Commonwealth must show the trial court's ruling on the

motion to suppress constituted reversible error when considered

in the light most favorable to the defendants. McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc); Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,

407 S.E.2d 47, 48 (1991). "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. Ornelas v. United States, 517 U.S. 690, 699 (1996).

Sergeant Sizemore and Deputy Lantz of the Hanover County

Sheriff's Office responded to a dispatch that two men in a

restaurant were "possibly" armed. They met with the manager,

who pointed out the defendants. The manager explained that an

off-duty police officer had reported the defendants "may be

armed." The officers observed nothing unusual about the

appearance or behavior of the defendants, who were seated in a

booth. The officers approached them and told the defendants

someone had reported they had weapons. Sergeant Sizemore told

the defendants to put their hands on the table and slide out of

the booth. As Fassett exited, Sizemore saw a fist-sized bulge

in his waistband and thought it might be a weapon. Sizemore

patted the bulge and felt what he thought was a plastic bag of

marijuana. He seized the bag, which turned out to contain

- 2 - marijuana. Weeden then consented to a search of his jacket,

which was lying on the seat. It contained more marijuana and

plastic bags.

The source of the information, upon which the police acted,

testified at the supression hearing. In this case, we thus know

precisely the information available to the police to authorize

their responses. Michael Mabry was an off-duty Richmond police

detective. While eating at the restaurant, he noticed the

defendants because they were loud and boisterous as they

entered. The two sat in a booth about seven to ten feet from

Mabry. As Weeden slid into the booth, "his coat fell open and

there appeared to have been something heavy in his pocket."

Mabry did not see what the heavy object was and did not

determine conclusively that it was a weapon.

While observing the defendants, Mabry remembered

investigating unsolved robberies in Richmond conducted by "two

gentlemen wearing large coats and bandanas, one dark-complected

and one light-complected." Mabry then informed the manager

"something didn't look right" and suggested the manager call the

police "to have someone ride through to keep an eye on the

place." The manager placed the call, and Mabry spoke to the

dispatcher himself. He reported what he believed he had

observed and "explained . . . you might just want to have

- 3 - someone come through" and keep "an eye on the area." 1 Mabry left

the restaurant and never spoke to the arresting officers.

In deciding whether a seizure occurred, we determine

"whether, under a totality of circumstances, a reasonable person

would have believed that he . . . was not free to leave."

McGee, 25 Va. App. at 199-200, 487 S.E.2d at 262. A significant

factor to consider is whether an officer has informed an

individual that he "has been specifically identified as a

suspect in a particular crime." Id. at 200, 487 S.E.2d at 262;

United States v. Gray, 883 F.2d 320, 323 (4th Cir. 1989). In

this case, the officers specifically told the defendants that

someone had seen them with weapons, and asked them to step out

of the booth. The Commonwealth agrees that the officers had to

have reasonable suspicion to pat-down Fassett as he slid out of

the booth. It maintains that Mabry's observations amounted to

reasonable suspicion.

The investigative detention "must be based upon reasonable

articulable suspicion that criminal activity is or may be

afoot." McGee, 25 Va. App. at 199, 487 S.E.2d at 261. The

officers need "a particularized and objective basis for

suspecting" the defendants are engaged in criminal activity.

United States v. Cortez, 449 U.S. 411, 417-18 (1981); Bass v.

1 When asked if he used the word "weapon or handgun" while talking to the manager, Mabry responded, "I said possibly it could have been the butt of a weapon."

- 4 - Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923 (2000) ("a

minimal level of objective justification" is required). A

reasonable suspicion "must be more than an unparticularized

suspicion or 'hunch.'" Terry v. Ohio, 392 U.S. 1, 27 (1968).

Mabry observed a heavy object in the pocket of Weeden's

jacket as it fell open. He did not see the object and did not

specifically identify the heavy object as a weapon. After

recalling a string of robberies in Richmond, Mabry suggested the

manager call the police to have them increase patrols in the

area. Mabry's observation amounted to neither reasonable

suspicion that the defendants were armed and dangerous nor that

they were engaged in criminal activity. He reported that the

heavy object might be a weapon and suggested the police keep an

eye on the area. When the officers arrived, they did nothing to

investigate the report or to corroborate Mabry's suspicions.

The officers did not see the defendants engage in any suspicious

conduct. Nothing was remarkable about their appearance, and

nothing suggested they were engaged in any criminal activity.

Information supporting an officer's investigative detention

of a suspect "must be reliable in its assertion of illegality."

Florida v. J.L., 529 U.S. 266, 272 (2000). "The fact that the

. . . hunch is conveyed to the police does not raise the hunch

to the level of reasonable suspicion." Beckner v. Commonwealth,

15 Va. App. 533, 537, 425 S.E.2d 530, 533 (1993). This is not a

case where the officers were given a conclusory assertion that

- 5 - the defendants were armed from which they could infer personal

observation. Id. at 537, 425 S.E.2d at 533. If information

that a defendant might be armed is insufficient for a detention,

it cannot be used as the basis for a pat-down. Harris v.

Commonwealth, 262 Va. 407, 416-17, 551 S.E.2d 606, 611 (2001).

In this case, the facts do not constitute a reasonable

suspicion of criminal activity. We conclude the officers lacked

a particularized and objective basis to support a detention of

the defendants and to permit a pat-down of them. Accordingly,

we affirm.

Affirmed.

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