David Cotton v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: January 27, 2000
• Docket: 1541982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judge Bray, Senior Judges Cole and Overton Argued at Richmond, Virginia

DAVID COTTON MEMORANDUM OPINION * BY v. Record No. 1541-98-2 JUDGE NELSON T. OVERTON JANUARY 27, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY James E. Kulp, Judge

Carl C. Muzi for appellant.

Robert H. Anderson, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

David Cotton, appellant, appeals his conviction of

possession of methamphetamine with the intent to distribute. He

raises the following issues on appeal: (1) whether the officer

had reasonable suspicion to stop and seize appellant's vehicle;

(2) whether the officer had probable cause to seize the bag in

the car based on the "plain view" doctrine; (3) whether the

officer had probable cause to arrest appellant; (4) whether the

officer had the authority to search appellant; and (5) whether

the evidence was sufficient to convict appellant of the

possession of methamphetamine with the intent to distribute.

Finding no error, we affirm the conviction.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. FACTS

The evidence proved that Investigator Douglas Perry was

screening packages for illegal narcotics shipments at a Federal

Express package distribution center in Henrico County on

September 18, 1997. Perry had twelve years of experience as a

law enforcement officer, four of which were with the Henrico

Narcotics Unit. At about 8:40 a.m., as Perry was leaving the

facility, he saw a man seated in the passenger seat of a parked

red car in the parking lot. The man had swollen eyes, looked

nervous, and appeared to be watching Perry as he drove through

the parking lot.

Perry thought the man's behavior was unusual, so he wrote

down the license plate number of the vehicle and determined the

identity of the registered owner of the vehicle. The car was

registered to a Corey Johnson, whom Perry knew as a person who

was previously involved with illegal narcotics. The address

given for Johnson was also an address Perry recognized as a

location of prior undercover drug operations.

Perry also saw a man with a long ponytail and a baseball

cap standing at the counter in the Federal Express office. The

man retrieved a package and left. Perry believed that this man

was the driver of the red car. Perry obtained a copy of the

Federal Express label from the package the man had just

retrieved. The label contained eight characteristics that Perry

believed, based on his training and experience, indicated that

- 2 - the package possibly contained drugs. These characteristics

were: a handwritten label, misspelled words, a signature

release, payment by money order, shipment to an area known for

drug activity, shipment from an area known as a source city for

narcotics, item shipped "priority overnight" with a guaranteed

delivery time, and item shipped from one individual to another

individual. The Federal Express employee also told Perry that

the man failed to show identification when he retrieved the

package. This also aroused Perry's suspicions. Perry testified

that he had inspected over one thousand suspicious packages and

had found narcotics in about fifty percent of those packages.

Perry testified that he suspected that the package possibly

contained narcotics, so he continued his investigation. Perry,

who was dressed in plain clothes and drove an unmarked police

vehicle, went to the address on the label and called for back-up

officers. As the officers approached the address, appellant and

the man Perry saw sitting in the red car at the Federal Express

office exited the apartment. Appellant had a ponytail, wore a

baseball cap, and was dressed like the man Perry saw at the

Federal Express counter. He also carried a brown paper bag.

The two men entered the red car, with appellant driving the

car. They looked at Perry, then rapidly drove away. As Perry

followed the car, the car accelerated rapidly and exited the

apartment complex through an alley in the rear. Perry followed

the car, and he saw that the two men repeatedly looked back at

- 3 - him. Perry activated his blue lights and siren; however, the

red car accelerated and made numerous turns until it reached a

dead end parking lot in an apartment complex. Perry and the

other officers stopped behind appellant's vehicle.

Appellant exited the car, approached Perry and asked,

"What's this all about? . . . Why are you stopping me?" Perry

identified himself as a police officer. He told appellant that

he was a narcotics investigator and had been investigating

possible drug deliveries at the Federal Express office. Perry

asked appellant for identification, and appellant said that he

had none with him. Appellant returned to the red car and sat in

the driver's seat of the car.

Perry approached the car and asked appellant if he had

picked up a package at the Federal Express office. Appellant

replied, "Yes," but he said that the package was at the

apartment. Perry then saw a brown paper bag in plain view on

the floor behind the driver's seat of the car. Inside the bag,

Perry could see the same Federal Express label that he had seen

a copy of at the Federal Express office. Perry could also see a

Federal Express package, plastic bags with the corners removed,

baggie corners, and a "bundle of masking tape that had been

ripped open." Based on his prior training and experience, Perry

testified that he often saw baggie corners and packages wrapped

in masking tape as part of illegal drug trafficking. Perry

asked appellant to let him see the brown paper bag, and

- 4 - appellant refused to do so, stating, "Not without a search

warrant." Perry replied that he did not need a search warrant

because the bag was in plain view. As Perry reached for the

bag, appellant exited the car and tried to flee. The officers

stopped appellant and handcuffed him.

Perry conducted a pat-down search for weapons as appellant

lay on the ground. During the pat-down, Perry felt "a hard

substance that was in a plastic outer container or something" in

appellant's groin area. Perry stated that he "immediately

recognized it as drugs" because the groin area is a common place

for persons to carry drugs. Perry retrieved the container and

recovered over fifty-six grams of methamphetamine. The drugs

were packaged in eight "corner" baggies, containing about 3.5

grams of methamphetamine in each bag, and one "larger" baggie,

containing about one ounce of the drug. Perry testified that

the quantity of recovered methamphetamine and the packaging of

the drugs were inconsistent with personal use.

Appellant filed a motion to suppress, contending that Perry

did not have a reasonable, articulable suspicion to stop

appellant's car; that Perry did not have probable cause to seize

the bag found in the rear floor of the car based on the "plain

view" doctrine; that Perry did not have probable cause to arrest

appellant; and that Perry did not have the authority to search

appellant. The trial court denied the motion to suppress, and,

- 5 - sitting without a jury, convicted him of possessing

methamphetamine with the intent to distribute.

ANALYSIS

I. The Stop

In reviewing a trial court's denial of a motion to

suppress, we are bound to 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." 1 Id.

"If a police officer has reasonable, articulable suspicion

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

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). Reasonable suspicion is "'a particularized

and objective basis' for suspecting the person stopped of

1 "'Clear error' is a term of art derived from Rule 52(a) of the Federal Rules of Civil Procedure, and applies when reviewing questions of fact" in the federal system. Ornelas, 517 U.S. at 694 n.3. In Virginia, questions of fact are binding on appeal unless "plainly wrong." Quantum Dev. Co. v. Luckett, 242 Va. 159, 161, 409 S.E.2d 121, 122 (1991); Naulty v. Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542 (1986).

- 6 - criminal activity." Ornelas, 517 U.S. at 696 (citation

omitted). However,

"[t]here is no 'litmus test' for reasonable suspicion. Each instance of police conduct must be judged for reasonableness in light of the particular circumstances." "In order to determine what cause is sufficient to authorize police to stop a person, cognizance must be taken of the 'totality of the circumstances--the whole picture.'"

Harmon v. Commonwealth, 15 Va. App. 440, 445, 425 S.E.2d 77, 79

(1992) (citations omitted).

The circumstances established that Perry had reason to

believe that appellant may have been engaged in criminal

activity when he stopped appellant's car. Perry, who was

trained and experienced in investigating suspicious packages,

saw a man who he believed acted suspiciously in the Federal

Express parking lot as the man nervously watched Perry. When

Perry checked the ownership of the car, he learned that the car

was registered to someone who Perry knew had engaged in illegal

drug activities. Furthermore, Perry's suspicions increased when

he viewed the copy of the label from the package that the man

with the ponytail had retrieved. Perry testified to eight

characteristics of the label that were associated with shipments

of illegal drugs. Also, the address on the label was in an area

that Perry knew was associated with illegal drug activity in the

past.

- 7 - Moreover, when Perry drove to the address indicated on the

label, appellant and the other man Perry had observed in the

Federal Express office parking lot exited the apartment and

rapidly exited the parking lot. Perry had to "catch up" with

appellant and even after Perry activated his blue lights and

siren, appellant did not immediately stop. After driving

evasively, appellant finally stopped in a dead end parking lot.

"When determining if reasonable suspicion exists, courts

must consider that '[t]rained and experienced police officers

. . . may be able to perceive and articulate meaning in given

conduct which would be wholly innocent to the untrained

observer.'" Buck v. Commonwealth, 20 Va. App. 298, 302, 456

S.E.2d 534, 536 (1995) (citation omitted). Based on these

circumstances and Perry's experience and training, Perry had

sufficient reasonable, articulable suspicion to detain appellant

to investigate his activity. Therefore, the stop for the

purpose of obtaining more information was reasonable and was not

unlawful.

II. Seizure of the Bag

Appellant contends that Perry did not have probable cause

to seize the brown paper bag based on the "plain view" doctrine.

"[I]n order for a seizure to be permissible under the plain view doctrine, two requirements must be met: '(a) the officer must be lawfully in a position to view and seize the item, [and] (b) it must be immediately apparent to the officer that the

- 8 - item is evidence of a crime, contraband, or otherwise subject to seizure.'"

Conway v. Commonwealth, 12 Va. App. 711, 718, 407 S.E.2d 310,

314 (1991) (en banc) (citation omitted).

Because the stop was not unlawful, Perry was lawfully in a

position to view the bag when he stood beside appellant's car.

Perry saw that the bag contained indicia of narcotics

trafficking, and it contained a copy of the "exact same" Federal

Express label Perry had seen earlier that day in connection with

his investigation. Thus, it was immediately apparent to Perry,

based on his training and experience, that the bag contained

items that were evidence of a crime or contraband and that the

appellant had lied to him when he said the package was at the

apartment. Accordingly, he had probable cause to seize the bag.

III. and IV. Probable Cause to Arrest and The Search

Appellant contends that the officers lacked probable cause

to arrest him. He also argues that, when the officers blocked

his car at the end of the dead end road, this was an unlawful

seizure. However, Perry initially had suspicions concerning the

possibility of appellant's criminal conduct relating to

appellant's receipt of the Federal Express package. Then

appellant attempted to elude Perry as Perry followed the

suspects, and appellant refused to stop his vehicle in response

to Perry's blue lights and siren until he was forced to stop at

the end of a dead end street. Therefore, Perry had reasonable

- 9 - and articulable suspicion of criminal activity, and the

officers' blocking of appellant's vehicle was not an illegal

seizure or detention. See Quigley v. Commonwealth, 14 Va. App.

28, 33, 414 S.E.2d 851, 854 (1992).

Moreover, appellant's attempted flight on foot from the

scene provided additional reason to suspect "'an offense ha[d]

been committed.'" Ford v. City of Newport News, 23 Va. App.

137, 143, 474 S.E.2d 848, 851 (1996) (citation omitted).

Therefore, the officers had probable cause to arrest appellant.

Because appellant was properly arrested, the search incident to

the arrest was lawful. See Illinois v. Lafayette, 462 U.S. 640,

646 (1983).

In addition, Perry testified that he immediately recognized

the object in appellant's pants as narcotics, and he knew from

his experience and training that drugs are often concealed in

that manner. Therefore, the seizure of the drugs was

permissible. See Welshman v. Commonwealth, 28 Va. App. 20,

35-36, 502 S.E.2d 122, 129 (1998) (en banc).

V. Sufficiency of the Evidence

Appellant argues that had the trial court granted any of

the issues presented in the motion to suppress, the evidence

would not have been sufficient to convict appellant. However,

as stated above, the trial court did not err in denying the

motion to suppress the evidence and in admitting the evidence

- 10 - that appellant possessed more than fifty-six grams of

methamphetamine.

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted). From the evidence of appellant's possession

of the drugs, combined with Perry's testimony concerning the

packaging evidence and Perry's testimony that the quantity of

recovered methamphetamine was inconsistent with personal use,

the trial court could conclude beyond a reasonable doubt that

appellant committed the charged offense. See White v.

Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997)

(en banc).

For these reasons, we affirm the decision of the trial

court.

Affirmed.

- 11 -