George Lee Hawkins v. Commonwealth of Virginia

774 S.E.2d 492, 65 Va. App. 101, 2015 Va. App. LEXIS 237
CourtCourt of Appeals of Virginia
DecidedAugust 4, 2015
Docket1270141
StatusPublished
Cited by11 cases

This text of 774 S.E.2d 492 (George Lee Hawkins v. Commonwealth of Virginia) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
George Lee Hawkins v. Commonwealth of Virginia, 774 S.E.2d 492, 65 Va. App. 101, 2015 Va. App. LEXIS 237 (Va. Ct. App. 2015).

Opinions

CHAEIN, Judge.

George Lee Hawkins was convicted of possession of a firearm by a convicted felon in violation of Code § 18.2-308.2. On appeal, he contends that the trial court erred by denying his motion to suppress the firearm found on his person. Hawkins argues that the trial court erroneously concluded that he consented to the search in question and that the police officer who performed the search “exceeded the scope of a Terry1 stop [by conducting] a search of the defendant’s person rather than a protective frisk.” For the reasons that follow, we affirm Hawkins’s conviction.

[104]*104I. BACKGROUND

“When reviewing a denial of a suppression motion, we review the evidence ‘in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.’ ” Elliott v. Commonwealth, 61 Va.App. 48, 51, 733 S.E.2d 146, 148 (2012) (quoting Glenn v. Commonwealth, 49 Va.App. 413, 416, 642 S.E.2d 282, 283 (2007) (en banc), aff'd, 275 Va. 123, 654 S.E.2d 910 (2008)). So viewed, the evidence established that Chesapeake Police Officer Barret C. Ring observed a suspected hand-to-hand drug transaction in an area known as a high crime, open-air drug market shortly after midnight on February 28, 2013.2 Ring saw Hawkins and another man standing in the street facing a third individual who was later identified as “Hamilton.” Hawkins’s companion completed a hand-to-hand exchange with Hamilton while Hawkins stood nearby. Hamilton then got in the passenger seat of a car waiting across the street, and the car left the area.

Officer Ring stopped the car for a traffic violation at an intersection located within a block of where the exchange occurred.3 When Ring stopped the car, its driver dropped drug paraphernalia and Ring found “multiple quantities of suspected cocaine” when he searched Hamilton following his arrest. Norfolk police officers arrived at the scene shortly after Officer Ring stopped the car. Officer Ring informed the officers of the hand-to-hand exchange and directed their attention to Hawkins and his companion, who were standing across the street.

Five Norfolk police officers arrived at the scene and approached Hawkins and the other man. The officers asked the men for their identification, and asked them questions about what they were doing on the street that night. The officers did not, however, mention the traffic stop or the narcotics [105]*105investigation that was being conducted across the street by the Chesapeake police. One of the officers described the tone of the conversation as “completely casual,” and he testified that the officers only intended to identify the men for later investigation. Although there were five officers present, they were not positioned so as to block either Hawkins or his companion from leaving the area.

During the conversation between the officers and the two men, Officer R.A. Mazzio saw a bulge under Hawkins’s shirt. He asked Hawkins if he had “a big cell phone on [his] belt,” and then asked him if he “could do him a favor” by raising his “shirt up a little bit so [Mazzio could] see how it sits.” Mazzio testified that his tone was congenial and even joking during this interaction and that he did not instruct or command Hawkins to raise his shirt.

In response to Mazzio’s request, Hawkins extended his arms completely out to his sides and raised them about halfway up to his shoulders with his palms facing the officers. Hawkins did not say anything or make any other movements for approximately five seconds. After several seconds, an officer lifted the tail of Hawkins’s shirt and revealed the handle of a handgun tucked into his waistband. The officers confiscated the firearm, and Hawkins was arrested for possessing a firearm as a convicted felon. Officer S.A. Bartley took a statement from Hawkins following his arrest. Bartley testified that Hawkins told him that he did not initially tell the officers that he had a weapon because he did not want to startle them, but that he “came around and showed the officers that he ... was indeed wearing a firearm.”

Hawkins moved to suppress the evidence obtained by the officers on February 28, 2013, arguing that he did not consent to a search (specifically, the lifting of his shirt by the officers) and that the officers’ actions exceeded the scope of a search permissible under Terry. The trial court denied his motion. The trial court concluded that Hawkins consented to the search through his actions on the night in question. Additionally, the trial court noted that reasonable suspicion would have [106]*106supported a Terry frisk for weapons under the circumstances and elaborated on the specific facts of the case that would have given rise to that reasonable suspicion. The trial court, however, expressly held that a Terry stop had not occurred in the present case. The trial court concluded that the interaction between Hawkins and the officers was consensual and that Hawkins consented to the lifting of his shirt during that interaction. Hawkins entered a conditional guilty plea after the trial court denied his motion to suppress, and this appeal followed.

II. ANALYSIS

In reviewing a trial court’s denial of a motion to suppress, “we determine whether the accused has met his [or her] burden to show that the trial court’s ruling, when the evidence is viewed in the light most favorable to the Commonwealth, was reversible error.” Roberts v. Commonwealth, 55 Va.App. 146, 150, 684 S.E.2d 824, 826 (2009). 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). “However, we consider de novo whether those facts implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the Fourth Amendment.” Hughes v. Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155, 159 (2000) (en banc) (citing McGee, 25 Va.App. at 198, 487 S.E.2d at 261).

On appeal, Hawkins’s argument focuses primarily on the scope of the search in question. Hawkins contends that the police officer conducting the search exceeded the scope of Terry by lifting his shirt before he performed a weapons frisk. The trial court, however, held that Hawkins consented to the search. While the trial court explained that the officers could have performed a weapons frisk under Terry, it expressly held that a Terry stop and weapons frisk did not occur. According[107]*107ly, we analyze whether the trial court erred by concluding Hawkins consented to the search without addressing whether or not the officer’s actions exceeded the scope of a weapons frisk permissible under Terry.

“As a general rule, ‘a search authorized by consent is wholly valid.’ ” Kyer v. Commonwealth, 45 Va.App. 473, 483, 612 S.E.2d 213, 218 (2005) (en banc) (quoting Schneckloth v. Bustamonte,

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Bluebook (online)
774 S.E.2d 492, 65 Va. App. 101, 2015 Va. App. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-lee-hawkins-v-commonwealth-of-virginia-vactapp-2015.