Isadore Miracle Humphrey, II v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: July 2, 2024
• Docket: 1301231
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, O’Brien and Athey UNPUBLISHED

Argued at Norfolk, Virginia

ISADORE MIRACLE HUMPHREY, II MEMORANDUM OPINION* BY v. Record No. 1301-23-1 JUDGE GLEN A. HUFF JULY 2, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH James C. Lewis, Judge

Roger A. Whitus (Slipow & Robusto P.C., on brief), for appellant.

Lauren C. Campbell, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Isadore Miracle Humphrey, II (“appellant”), entered conditional guilty pleas in the Circuit

Court of the City of Virginia Beach (the “trial court”) to possession of a firearm by a violent felon

and carrying a concealed weapon. On appeal, he assigns error to the trial court’s denial of his

motion to suppress. Finding no error, this Court affirms appellant’s convictions.

* This opinion is not designated for publication. See Code § 17.1-413. BACKGROUND1

On March 7, 2022, Virginia Beach Police Sergeant Roys was conducting a foot patrol along

the Virginia Beach oceanfront.2 At approximately 8:00 p.m., Sergeant Roys saw appellant walking

with another man who had an outline of a firearm visible through his clothing. Sergeant Roys

approached the man and asked if he had a concealed weapon permit. The man denied having a

firearm. Sergeant Roys and Officer Walker detained the man and, after a brief struggle, removed a

gun from his pants.

During this time, appellant began moving away from the officers. Officer Walker asked

appellant if he also possessed a firearm, to which appellant responded, “nah, I’m good.” Officer

Walker then asked for appellant’s permission to conduct a pat-down search for weapons. Appellant

repeated his initial response and continued moving away from Officer Walker. As appellant backed

away, he tripped over a small sign and Officer Walker saw an “angular shape[d]” item on

appellant’s left side, which Officer Walker believed to be a firearm. Officer Walker explained that,

as a police officer, he had been involved in “hundreds of firearms arrests” and also had extensive

“training from the military and all three police departments [at which he had worked during his

police career] with firearms.” Upon seeing what he believed to be the imprint of a firearm on

appellant’s person, Officer Walker ordered appellant to stop. When appellant continued to move

away, Officer Walker handcuffed appellant and removed a gun from his waistband.

1 “In accordance with familiar principles of appellate review,” this Court recites the facts “in the light most favorable to the Commonwealth, the prevailing party” in the trial court. Poole v. Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In doing so, this Court “discard[s] the evidence of the accused in conflict with that of the Commonwealth, and regard[s] as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Commonwealth v. Cady, 300 Va. 325, 329 (2021) (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)). 2 According to Sergeant Roys, the Virginia Beach police were “doing firearms interdiction and essentially deterrence down at the oceanfront” due to a recent increase in gun violence in that area. -2- At the subsequent suppression hearing, appellant argued that he was seized in violation of

his Fourth Amendment rights because Officer Walker lacked a reasonable suspicion of criminal

activity. While the Commonwealth asserted that appellant was not seized until after Officer Walker

saw the outline of the gun and ordered appellant to stop, appellant argued that he was seized before

that point. The trial court denied the motion to suppress, and appellant entered conditional guilty

pleas to possession of a firearm by a violent felon in violation of Code § 18.2-308.2 and carrying a

concealed weapon in violation of Code § 18.2-308.

This appeal followed.

STANDARD OF REVIEW

On “appellate review of a trial court’s decision on a motion to suppress[,] . . . [t]he

appellant bears the burden of establishing that reversible error occurred.” Williams v.

Commonwealth, 71 Va. App. 462, 474 (2020). A “claim that evidence was seized in violation of

the Fourth Amendment presents a mixed question of law and fact that we review de novo.’”

Cole v. Commonwealth, 294 Va. 342, 354 (2017) (quoting Cost v. Commonwealth, 275 Va. 246,

250 (2008)). In doing so, this Court “must give deference to the factual findings of the circuit

court and give due weight to the inferences drawn from those factual findings.” Moore v.

Commonwealth, 69 Va. App. 30, 36 (2018) (quoting Commonwealth v. Robertson, 275 Va. 559,

563 (2008)). This Court must also, however, “determine independently whether the manner in

which the evidence was obtained meets the requirements of the Fourth Amendment.” Id.

(quoting Robertson, 275 Va. at 563).

ANALYSIS

Appellant argues on appeal that the trial court should have suppressed the evidence—

namely, the firearm—that was obtained due to an unlawful search and seizure. He contends that

the officers seized him before developing the reasonable suspicion required to detain him

-3- pursuant to Terry v. Ohio, 392 U.S. 1 (1968). For the following reasons, this Court disagrees and

finds that appellant’s seizure was not made in violation of the Fourth Amendment.

“Fourth Amendment jurisprudence recognizes three categories of police-citizen

[contacts]: (1) consensual encounters[;] (2) brief, minimally intrusive investigatory detentions

based upon specific, articulable facts, commonly referred to as Terry stops[;] and (3) highly

intrusive arrests and searches founded on probable cause.” Middlebrooks v. Commonwealth, 52

Va. App. 469, 476 (2008) (first alteration in original) (quoting Blevins v. Commonwealth, 40

Va. App. 412, 420-21 (2003), aff’d, 267 Va. 291 (2004)).

“Under the Fourth Amendment, any seizure of a person, no matter how brief, must have

an objective justification related to law enforcement.” Montague v. Commonwealth, 278 Va.

532, 538 (2009). Where, however, “‘a reasonable person would feel free “to disregard the police

and go about his business,” the encounter is consensual’ and no reasonable suspicion is required

to justify the encounter.”3 Jones v. Commonwealth, 279 Va. 521, 528 (2010) (quoting Dickerson

v. Commonwealth, 266 Va. 14, 17 (2003)).4 Thus, “a voluntary encounter between the police

and a citizen does not constitute a seizure prohibited by the Fourth Amendment.” Montague,

278 Va. at 538. Nevertheless, even in a nonconsensual encounter, a person is not seized under

the Fourth Amendment unless he (i) is under some form of physical restraint by the police, or

(ii) has complied with a police officer’s directive/show of authority. See Woodson v.

Commonwealth, 245 Va. 401, 405 (1993) (finding no Fourth Amendment seizure when

3 “The ‘reasonable person’ test is an objective test and presumes an innocent person.” Jones, 279 Va. at 528. 4 “As long as the police do not convey, by word or deed, that compliance with their request is mandatory, there is no requirement that these encounters be based on an objective or particularized suspicion regarding the person approached.” Montague, 278 Va. at 538. “Thus, even when the police do not have a reasonable suspicion that an individual may be engaged in criminal activity, they may approach that person and request information regarding the person’s identity without violating the Fourth Amendment.” Id. -4- defendant failed to comply with order to show his hands); Thomas v. Commonwealth, 24

Va. App. 49, 54 (1997) (en banc).

In this case, appellant’s encounter with the police began consensually. Sergeant Roys and

Officer Walker approached appellant and his companion as they walked down the sidewalk. After

seeing the outline of a gun on appellant’s companion, Sergeant Roys confronted him and retrieved a

firearm from his pants after a brief struggle. Meanwhile, appellant began backing away,

demonstrating his belief that he was free to leave and not subject to the officers’ authority. The

consensual nature of appellant’s encounter with the police was not changed when Officer Walker

asked if appellant also had a gun. Appellant’s response in the negative was voluntary, and he

continued to back away from Officer Walker. See Montague, 278 Va. at 539 (“If the person to

whom the police questions are directed objectively ‘remains free to disregard the questions and

walk away,’ there is no demonstrable restriction on the person’s liberty and the encounter does

not result in a seizure.” (quoting United States v. Mendenhall, 446 U.S. 544, 553-54 (1980))).

Only after appellant tripped over a sign, revealing the outline of a firearm on his person, did

Officer Walker seize appellant by handcuffing him. At that point, the encounter was no longer

consensual and instead represented an investigatory detention justified by Officer Walker’s

reasonable suspicion that appellant possessed a concealed weapon. “There are no bright line rules

to follow when determining whether a reasonable and articulable suspicion exists to justify an

investigatory stop. Instead, the courts must consider the totality of the circumstances—the whole

picture.” Hawkins v. Commonwealth, 65 Va. App. 101, 112 (2015) (quoting Reel v.

Commonwealth, 31 Va. App. 262, 266 (2000)). “A reasonable suspicion is more than an

‘unparticularized suspicion or “hunch[,]”’” Bass v. Commonwealth, 259 Va. 470, 475 (2000)

(quoting Terry, 392 U.S. at 27), but “less than probable cause[,]” Jackson v. Commonwealth, 267

Va. 666, 673 (2004). Within this range, “[a] police officer may detain a person ‘if the officer

-5- possesses a reasonable suspicion, based on articulable facts, that the individual is or is about to

be engaged in criminal activity.’” Hawkins, 65 Va. App. at 112 (quoting Gregory v.

Commonwealth, 22 Va. App. 100, 105 (1996)).

Moreover, an officer is “entitled ‘to view the circumstances confronting him in light of

his training and experience, and he may consider any suspicious conduct of the suspected

person.’” Andrews v. Commonwealth, 37 Va. App. 479, 491 (2002) (quoting James v.

Commonwealth, 22 Va. App. 740, 745 (1996) (citation omitted)); see also Freeman v.

Commonwealth, 20 Va. App. 658, 661 (1995) (recognizing that a “trained law enforcement

officer may [be able to] identify criminal behavior which would appear innocent to an untrained

observer” (alteration in original) (quoting Taylor v. Commonwealth, 6 Va. App. 384, 388 (1988)

(en banc))). Accordingly, “[w]hether officers making an investigatory stop are presented with

circumstances sufficiently suspicious to satisfy [the] minimum standard is determined by

examining the totality of the circumstances in the context of the officer’s experience and

training.” Rudolph v. Commonwealth, 277 Va. 209, 213 (2009). Here, the circumstances

articulated by the officers, viewed in their totality and under the appropriate legal standard,

justify a finding of reasonable suspicion.

Although appellant suggests the existence of other noncriminal explanations that would

rationally explain his observed behavior, the law is clear that a determination of reasonable

suspicion “need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534

U.S. 266, 277 (2002). Instead, the standard “requires only ‘a moderate chance of finding

evidence of wrongdoing.’” Shifflett v. Commonwealth, 58 Va. App. 732, 736 (2011) (quoting

Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 371 (2009)). Accordingly, “[t]he

possibility of an innocent explanation for the suspicious conduct does not necessarily forbid an

-6- officer from making a brief, investigatory stop.” Raab v. Commonwealth, 50 Va. App. 577, 581

(2007) (en banc).5

Therefore, appellant’s argument that his conduct could be traced to legitimate or innocent

explanations is unpersuasive. Even though each of appellant’s acts, standing alone, might be

susceptible to an innocent explanation, the totality of the circumstances provided the officers

with a reasonable suspicion that he possessed a firearm. They saw appellant walking in an area

of recently increased gun-related violence with a companion who was carrying a concealed

firearm. When his companion refused to cooperate with the officers’ investigation, appellant

tried to distance himself from the ensuing scuffle. During his evasive maneuvers, appellant

stumbled and revealed to Officer Walker what looked like the outline of a gun on his body.

Those facts lead this Court to conclude that the officers possessed reasonable suspicion to

not only detain appellant but also conduct a pat down of his person and retrieve the firearm

concealed in his pants.6 When an officer with reasonable suspicion justifying a Terry stop

believes that the person “may be armed and dangerous,” the officer may lawfully conduct a

pat-down search for weapons in order to ensure his own safety and the safety of others nearby.

Lowe v. Commonwealth, 33 Va. App. 656, 660-61 (2000). This search is limited to “the outer

clothing” of the detained person. Terry, 392 U.S. at 30. “The purpose of this limited search is

not to discover evidence of crime, but to allow the officer to pursue his investigation without fear

of violence.” Adams v. Williams, 407 U.S. 143, 146 (1972). Officer Walker’s pat down of

appellant, resulting in the discovery of a gun in appellant’s pants, was conducted on a public

5 See also Morris v. City of Va. Beach, 58 Va. App. 173, 183 (2011) (“The degree of certitude required by the reasonable suspicion standard is ‘considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less demanding than that for probable cause.’” (quoting Perry v. Commonwealth, 280 Va. 572, 581 (2010))). 6 On appeal, appellant contests the legality of his initial seizure and subsequent search. He does not challenge the seizure of the gun on other grounds. -7- sidewalk within shooting distance of at least himself, Sergeant Roys, and appellant’s own

companion whose concealed weapon had also been confiscated. See Hawkins, 65 Va. App. at

114 (“Notably, Terry authorizes ‘necessary measures’ to determine whether the person is armed,

rather than authorizing a pat down only.”).

Based on the totality of the circumstances, the officers’ initial inquiry, subsequent

seizure, and resulting recovery of the gun from appellant’s pants were all permissible actions

under the Fourth Amendment. Accordingly, the trial court did not err in denying appellant’s

motion to suppress.

CONCLUSION

For the foregoing reasons, this Court affirms the trial court’s judgment.

Affirmed.

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