COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and Senior Judge Hodges Argued at Richmond, Virginia
JOHN CURTIS MITCHELL
v. Record No. 1775-94-2 MEMORANDUM OPINION * BY JUDGE ROSEMARIE P. ANNUNZIATA COMMONWEALTH OF VIRGINIA AUGUST 1, 1995
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Paul M. Peatross, Jr., Judge
Yvonne T. Griffin for appellant. Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
John Curtis Mitchell (appellant) was convicted in a bench
trial of possessing cocaine in violation of Code § 18.2-250. On
appeal, he argues that: (1) the initial stop of the car he was
driving was not supported by a reasonable, articulable suspicion
of criminal activity; (2) the subsequent pat-down was illegal;
and (3) the cocaine discovered the following day, near the scene
of the arrest, could not be sufficiently linked to him. We
disagree and affirm the trial court's decision.
On September 3, 1993, at approximately 8:00 p.m., Virginia
State Trooper M.G. Harris was working at Interstate 64 in
Albemarle County. It was a holiday weekend, the traffic was
heavy and proceeding two to three miles-per-hour in a bumper-to-
bumper fashion. A 1989 Plymouth traveling in third gear in the
left-hand westbound lane approximately fourteen feet from Harris,
*Pursuant of Code § 17.116.010 this opinion is not designated for publication. caught Harris' attention because the vehicle's front seat
passenger had his entire upper torso hanging out of the car
window.
Upon making eye contact with Harris, the passenger made
an obscene gesture towards him by extending his middle finger.
The passenger, without breaking eye contact with Harris, made
jamming and twisting motions with his arm and finger, and said,
"Yeah, you, I'm talking to you." The passenger's eyes appeared
glassy to Harris. Harris stopped the vehicle because the passenger was
behaving abnormally and appeared intoxicated, and he believed the
driver was violating Code § 46.2-852. 1
Harris asked Mitchell, the driver, for his license and
registration, and the passenger for identification. Mitchell was
unable to produce any kind of identification. He then told
Harris that the vehicle belonged to his girlfriend. Because the
two passengers in the car had become belligerent and Harris did
not have backup, Harris asked Mitchell to accompany him to his
police vehicle. Mitchell took off his hat, which had a marijuana
leaf embroidered on it, and entered the front passenger seat of
Harris' police cruiser.
Harris again asked Mitchell for his name. Mitchell then
1 Code § 46.2-852 provides as follows: "[A]ny person who drives a vehicle on any highway . . . in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving."
2 gave him false information about his identity. Harris advised
Mitchell of his Miranda rights and warned him of the penalties
for giving false information to a police officer.
Mitchell responded with a "furtive, quick move[ment]" with
his left hand towards his left front pocket. Believing that
appellant might be reaching for a weapon, and concerned for his
safety, Harris grabbed the pocket. As soon as he grabbed the
pocket, he felt a small, irregularly shaped object in the pocket. Harris had worked approximately ten undercover assignments
in jurisdictions across the Commonwealth for three and one-half
years. During his undercover assignments, he had purchased crack
cocaine and handled crack cocaine between 50 and 100 times. In
addition, he had had schooling in narcotics, and had actually
seen rock crack cocaine approximately 200 times. Based on that
experience and training, he told appellant the object he felt was
crack cocaine.
Appellant denied having crack cocaine, and pulled papers out
of the pocket to show Harris what he felt. Harris declined
appellant's explanation and reached for the pocket. As Harris'
hand touched the pocket, appellant got out of the police car, and
ran across the interstate.
When appellant subsequently was apprehended, he initially
claimed that he had tar hash in his pocket, but later admitted
that he had had crack cocaine. He told Harris that he had thrown
it away, and demonstrated how he had thrown it. He said, "That
3 shit is so far in the woods you'll never find it."
The police did not find the discarded packet of cocaine at
the time of appellant's arrest, and several searches, including
one using a police dog, failed to uncover the cocaine. Harris
returned to the scene the next day, re-enacted appellant's
demonstrated motion, and located a yellow ziplock baggie of
cocaine. Its location had not been the focus of the searches the
previous day, when police cruisers had been parked over the spot. Appellant filed a motion to suppress the cocaine on the
ground that it was the product of an unconstitutional search and
seizure. The trial court denied the motion based on its finding
that the initial traffic stop and subsequent seizure were lawful.
Appellant now appeals from the denial of that motion. I.
"`The burden is upon [appellant] to show that [the trial
court's refusal to suppress], when the evidence is considered
most favorably to the Commonwealth, constituted reversible
error.'" Harmon v. Commonwealth, 15 Va. App. 440, 444, 425
S.E.2d 77, 79 (1992) (quoting Fore v. Commonwealth, 220 Va. 1007,
1010, 265 S.E.2d. 729, 731, cert. denied, 449 U.S. 1017 (1980)).
In order to justify an investigatory stop of a vehicle, an
officer must have some reasonable, articulable suspicion that the
vehicle or its occupants are involved in, or recently have been
involved in, some form of criminal activity. Murphy v. Commonwealth, 9 Va. App. 139, 143-44, 384 S.E.2d 125, 127-28
4 (1989). This standard is less stringent than the probable cause
standard. Logan v. Commonwealth, 19 Va. App. 437, 441, 452
S.E.2d 364, 367 (1994) (en banc). Justification for stopping a
vehicle does not depend on the officer's subjective intent, but
on an objective assessment of the officer's actions based on the
facts and circumstances known to him at the time. Bosworth v.
Commonwealth, 7 Va. App. 567, 570, 375 S.E.2d 756, 758 (1989).
To determine whether there was a reasonable suspicion
justifying this investigatory stop, we must examine the totality
of the circumstances from the perspective of a "reasonable police
officer with the knowledge, training, and experience of the
investigating officer." Murphy, 9 Va. App. at 144, 384 S.E.2d at
128.
Harris observed appellant driving, while his passenger, who
obviously was not wearing a seat-belt and appeared to be
intoxicated, had his entire upper torso hanging out of the car
window. Such activity constitutes reckless driving in violation
of Code § 46.2-852. Harris' observation of a potentially
intoxicated passenger with his upper body hanging out the window
of a moving car provided a reasonable, articulable suspicion of
criminal activity. The trial court did not err in denying
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and Senior Judge Hodges Argued at Richmond, Virginia
JOHN CURTIS MITCHELL
v. Record No. 1775-94-2 MEMORANDUM OPINION * BY JUDGE ROSEMARIE P. ANNUNZIATA COMMONWEALTH OF VIRGINIA AUGUST 1, 1995
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Paul M. Peatross, Jr., Judge
Yvonne T. Griffin for appellant. Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
John Curtis Mitchell (appellant) was convicted in a bench
trial of possessing cocaine in violation of Code § 18.2-250. On
appeal, he argues that: (1) the initial stop of the car he was
driving was not supported by a reasonable, articulable suspicion
of criminal activity; (2) the subsequent pat-down was illegal;
and (3) the cocaine discovered the following day, near the scene
of the arrest, could not be sufficiently linked to him. We
disagree and affirm the trial court's decision.
On September 3, 1993, at approximately 8:00 p.m., Virginia
State Trooper M.G. Harris was working at Interstate 64 in
Albemarle County. It was a holiday weekend, the traffic was
heavy and proceeding two to three miles-per-hour in a bumper-to-
bumper fashion. A 1989 Plymouth traveling in third gear in the
left-hand westbound lane approximately fourteen feet from Harris,
*Pursuant of Code § 17.116.010 this opinion is not designated for publication. caught Harris' attention because the vehicle's front seat
passenger had his entire upper torso hanging out of the car
window.
Upon making eye contact with Harris, the passenger made
an obscene gesture towards him by extending his middle finger.
The passenger, without breaking eye contact with Harris, made
jamming and twisting motions with his arm and finger, and said,
"Yeah, you, I'm talking to you." The passenger's eyes appeared
glassy to Harris. Harris stopped the vehicle because the passenger was
behaving abnormally and appeared intoxicated, and he believed the
driver was violating Code § 46.2-852. 1
Harris asked Mitchell, the driver, for his license and
registration, and the passenger for identification. Mitchell was
unable to produce any kind of identification. He then told
Harris that the vehicle belonged to his girlfriend. Because the
two passengers in the car had become belligerent and Harris did
not have backup, Harris asked Mitchell to accompany him to his
police vehicle. Mitchell took off his hat, which had a marijuana
leaf embroidered on it, and entered the front passenger seat of
Harris' police cruiser.
Harris again asked Mitchell for his name. Mitchell then
1 Code § 46.2-852 provides as follows: "[A]ny person who drives a vehicle on any highway . . . in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving."
2 gave him false information about his identity. Harris advised
Mitchell of his Miranda rights and warned him of the penalties
for giving false information to a police officer.
Mitchell responded with a "furtive, quick move[ment]" with
his left hand towards his left front pocket. Believing that
appellant might be reaching for a weapon, and concerned for his
safety, Harris grabbed the pocket. As soon as he grabbed the
pocket, he felt a small, irregularly shaped object in the pocket. Harris had worked approximately ten undercover assignments
in jurisdictions across the Commonwealth for three and one-half
years. During his undercover assignments, he had purchased crack
cocaine and handled crack cocaine between 50 and 100 times. In
addition, he had had schooling in narcotics, and had actually
seen rock crack cocaine approximately 200 times. Based on that
experience and training, he told appellant the object he felt was
crack cocaine.
Appellant denied having crack cocaine, and pulled papers out
of the pocket to show Harris what he felt. Harris declined
appellant's explanation and reached for the pocket. As Harris'
hand touched the pocket, appellant got out of the police car, and
ran across the interstate.
When appellant subsequently was apprehended, he initially
claimed that he had tar hash in his pocket, but later admitted
that he had had crack cocaine. He told Harris that he had thrown
it away, and demonstrated how he had thrown it. He said, "That
3 shit is so far in the woods you'll never find it."
The police did not find the discarded packet of cocaine at
the time of appellant's arrest, and several searches, including
one using a police dog, failed to uncover the cocaine. Harris
returned to the scene the next day, re-enacted appellant's
demonstrated motion, and located a yellow ziplock baggie of
cocaine. Its location had not been the focus of the searches the
previous day, when police cruisers had been parked over the spot. Appellant filed a motion to suppress the cocaine on the
ground that it was the product of an unconstitutional search and
seizure. The trial court denied the motion based on its finding
that the initial traffic stop and subsequent seizure were lawful.
Appellant now appeals from the denial of that motion. I.
"`The burden is upon [appellant] to show that [the trial
court's refusal to suppress], when the evidence is considered
most favorably to the Commonwealth, constituted reversible
error.'" Harmon v. Commonwealth, 15 Va. App. 440, 444, 425
S.E.2d 77, 79 (1992) (quoting Fore v. Commonwealth, 220 Va. 1007,
1010, 265 S.E.2d. 729, 731, cert. denied, 449 U.S. 1017 (1980)).
In order to justify an investigatory stop of a vehicle, an
officer must have some reasonable, articulable suspicion that the
vehicle or its occupants are involved in, or recently have been
involved in, some form of criminal activity. Murphy v. Commonwealth, 9 Va. App. 139, 143-44, 384 S.E.2d 125, 127-28
4 (1989). This standard is less stringent than the probable cause
standard. Logan v. Commonwealth, 19 Va. App. 437, 441, 452
S.E.2d 364, 367 (1994) (en banc). Justification for stopping a
vehicle does not depend on the officer's subjective intent, but
on an objective assessment of the officer's actions based on the
facts and circumstances known to him at the time. Bosworth v.
Commonwealth, 7 Va. App. 567, 570, 375 S.E.2d 756, 758 (1989).
To determine whether there was a reasonable suspicion
justifying this investigatory stop, we must examine the totality
of the circumstances from the perspective of a "reasonable police
officer with the knowledge, training, and experience of the
investigating officer." Murphy, 9 Va. App. at 144, 384 S.E.2d at
128.
Harris observed appellant driving, while his passenger, who
obviously was not wearing a seat-belt and appeared to be
intoxicated, had his entire upper torso hanging out of the car
window. Such activity constitutes reckless driving in violation
of Code § 46.2-852. Harris' observation of a potentially
intoxicated passenger with his upper body hanging out the window
of a moving car provided a reasonable, articulable suspicion of
criminal activity. The trial court did not err in denying
appellant's motion to suppress based on the challenge to the stop
of the car. II.
Where a law enforcement officer has made an investigative
5 stop and believes the suspect stopped "'may be armed and
presently dangerous,' the officer may conduct a limited pat-down
search for weapons." Peguese v. Commonwealth, 19 Va. App. 349,
351, 451 S.E.2d 412, 413 (1994) (en banc) (quoting Lansdown v.
Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110 (1983), cert.
denied, 465 U.S. 1104 (1984)). In determining whether the person
stopped is dangerous, an officer may consider any suspicious
conduct of the person. Williams v. Commonwealth, 4 Va. App. 53,
67, 354 S.E.2d 79, 86-87 (1987). The officer is entitled to view
the circumstances confronting him in light of his training and
experience. Terry v. Ohio, 392 U.S. 1, 27 (1968).
Furthermore, when an officer is properly conducting a frisk
for weapons and during such frisk feels an object whose identity
is immediately apparent to him as contraband, the officer may
seize the item. Minnesota v. Dickerson, 113 S. Ct. 2130, 2137
(1993). See Ruffin v. Commonwealth, 13 Va. App. 206, 208, 409
S.E.2d 177, 179 (1991).
In this case, the police officer had ample grounds for
believing the appellant might have been armed and presently
dangerous. When Harris asked appellant for identification,
appellant did not produce it. Harris then asked appellant to
accompany him to the police cruiser because of the increasing
belligerence of the other two passengers in appellant's car.
Once inside the cruiser, appellant gave Harris false information.
Upon being advised of his constitutional rights and the penalty
6 for giving false information, appellant made a furtive, quick
move for the front pocket of his pants. Harris grabbed the
pocket to prevent appellant from drawing a weapon.
As a result of his pat-down, Harris immediately identified
the object in appellant's pocket as crack cocaine, utilizing his
training and experience. Having properly concluded that the
object was contraband, Harris was entitled to seize it. The
seizure of the crack cocaine which occurred the following day,
thus, did not violate appellant's Fourth Amendment rights. III.
The crack cocaine, properly seized, was also properly
admitted by the trial court. "Evidence which bears upon and is
pertinent to matters in issue, and which tends to prove the
offense, is relevant and should be admitted." Coe v.
Commonwealth, 231 Va. 83, 87-88, 340 S.E.2d 820, 823 (1986).
The baggie of crack cocaine found on the roadside was
relevant to the issue of whether the appellant possessed cocaine
in violation of Code § 18.2-250. Harris felt crack cocaine in
appellant's pocket, but appellant fled before Harris could seize
it. Thereafter, appellant admitted possessing cocaine, stated
how and where he had thrown it and told the police that they
would never find it. Furthermore, the unique, yellow ziplock
baggie containing cocaine found by Harris the following day was
identical to the baggie found in appellant's car. Harris
testified that in his years as an undercover officer he had never
7 before seen yellow ziplock baggies used in drug distribution.
Finally, appellant recognized both baggies and claimed that they
both belonged to his passenger.
The fact that the baggie sat on the roadside until the
following day and thus was subject to possible contamination goes
to the weight, rather than the admissibility, of the evidence.
See Reedy v. Commonwealth, 9 Va. App. 386, 391, 388 S.E.2d 650,
652 (1990). The trial court did not err in admitting the
evidence. The judgment of the trial court is affirmed.
Affirmed.