Kelvin L. Pleasants, a/k/a v. CW

• Court: Court of Appeals of Virginia
• Decided: October 26, 1999
• Docket: 1321982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Senior Judge Baker Argued at Norfolk, Virginia

KELVIN L. PLEASANTS, A/K/A KELVIN LEE PRICE, S/K/A KELVIN LELAND PLEASANT MEMORANDUM OPINION * BY v. Record No. 1321-98-2 JUDGE ROBERT P. FRANK OCTOBER 26, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Donald W. Lemons, Judge

Anthony G. Spencer (Michael Morchower; Morchower, Luxton & Whaley, on briefs), for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Kelvin L. Pleasants (appellant) appeals his convictions of

possession of cocaine with intent to distribute, possession of a

firearm while simultaneously possessing cocaine, possession of a

firearm after having been convicted of a felony, and carrying a

concealed weapon after a bench trial on April 13, 1998. On

appeal, appellant challenges the trial judge's denial of his

motion to suppress the evidence. We find that the trial judge did

not err in denying the motion to suppress, and affirm the

convictions.

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

On March 26, 1997, Detective Ford of the Richmond Police

Department received information from a confidential reliable

informant (informant) 1 that within the preceding twenty-four

hours, a black male known as "KP" sold what the informant

recognized to be crack cocaine at 4216 Old Brook Road, Apartment

Three. Detective Ford applied for a search warrant for 4216 Old

Brook Road, Apartment Three, based on the informant's

information. The search warrant affidavit stated that "KP" was

a black male with dark skin, between 5'5" and 5'7" tall, and

weighed 185 to 200 pounds. "KP" was described as driving one of

three vehicles that he parked behind the apartment: 1) a

two-tone gray minivan, 2) a silver Cadillac Seville, or 3) a

maroon Cadillac with a white top. According to the informant,

"KP" sold drugs from the apartment or walked out to the parking

lot and sold drugs from one of the vehicles, usually the

minivan. The search warrant was issued on March 26, 1997,

permitting officers to search 4216 Old Brook Road, Apartment

Three, for "cocaine, records, ledgers, monies, firearms,

packaging material, scales, and any other material used in

connection with the distribution of the drug."

Officers Dunfee and Gadson were part of the team assigned

to execute the search warrant. They parked their marked police

1 Appellant does not contest the reliability of the informant.

- 2 - unit across the street from the apartment building while they

waited for the other members of the search warrant team to

arrive. A two-tone gray minivan pulled into the apartment

parking lot. Officers Gadson and Dunfee saw appellant exit the

minivan carrying a white bag. Appellant entered 4216 Old Brook

Road, but the officers were unable to determine if he entered

Apartment Three because the building contained four separate

apartments. The entrances to the separate apartments were not

visible from outside the building. The officers did not execute

the search warrant for Apartment Three because the other members

of the search warrant team had not yet arrived. Appellant

emerged from the apartment building fifteen to twenty minutes

later carrying a white bag and got into the same minivan. The

officers were still across the street. They followed the

minivan and activated their emergency lights and siren after the

van left the apartment parking lot. Appellant continued to

drive for three miles before pulling his vehicle off of the

road. Appellant did not commit any traffic violation.

Officer Gadson approached the driver's side of the minivan,

and attempted to tell appellant that he was the target of a

search warrant. Appellant was belligerent and began using

abusive language. As a result of appellant's demeanor, Officer

Gadson asked him to exit the minivan. Appellant refused to exit

- 3 - the vehicle. Officer Gadson attempted to assist appellant from

the minivan, and a struggle ensued. The officers handcuffed

appellant because he continued to struggle.

Once the officers handcuffed appellant, Officer Gadson did

a "quick check" around the driver's seat of the minivan to look

for weapons. When he looked over the seat, he saw an open white

bag containing marijuana in plain view. The officers arrested

appellant for possession of the marijuana. They conducted a

search of the van incident to the arrest and discovered a "fanny

pack" inside the white bag. The fanny pack contained a gun,

cocaine, scales and currency.

II. ANALYSIS

Appellant contends that the trial court erred in denying

his motion to suppress the evidence. Finding no error, we

affirm the trial court's denial of the motion to suppress, and,

therefore, affirm the convictions.

"On an appeal from a trial court's denial of a motion to

suppress, the burden is on the appellant to show that the trial

court's decision constituted reversible error." Harris v.

Commonwealth, 27 Va. App. 554, 561, 500 S.E.2d 257, 260 (1998)

(citing Stanley v. Commonwealth, 16 Va. App. 873, 874, 433

S.E.2d 512, 513 (1993)). "We view the evidence in the light

most favorable to the prevailing party, granting to it all

reasonable inferences fairly deducible therefrom." Id. (citing

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d

- 4 - 47, 48 (1991)). "We review the trial court's findings of

historical fact only for 'clear error,' but we review de novo

the trial court's application of defined legal standards to the

particular facts of a case." Id. (citing Shears v.

Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996);

Ornelas v. United States, 517 U.S. 690, 697 (1996)).

"If a police officer has reasonable 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)

(citing Terry v. Ohio, 392 U.S. 1, 2 (1968)). "The

justification for stopping the individual need not rise to the

level of probable cause, but must be more than an 'inchoate and

unparticularized suspicion or "hunch."'" Id. (quoting Terry,

392 U.S. at 27).

The Terry rule applies to investigatory stops of

automobiles provided the officer has a reasonable articulable

suspicion, based upon objective facts, that the individual is

involved in criminal activity. See Brown v. Commonwealth, 17

Va. App. 694, 697-98, 440 S.E.2d 619, 621 (1994) (citing

Delaware v. Prouse, 440 U.S. 648, 663 (1979)). During a lawful

stop of an automobile, a police officer may be permitted to

require the driver to exit the vehicle which "'diminishes the

- 5 - possibility, otherwise substantial, that the driver can make

unobserved movements; this, in turn, reduces the likelihood that

the officer will be the victim of an assault.'" Hatcher v.

Commonwealth, 14 Va. App. 487, 490-91, 419 S.E.2d 256, 258

(1992) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 110

(1977)). Officers may use handcuffs during an investigatory

stop provided that their use is "'reasonably necessary to

maintain the status quo and protect officer safety.'" United

States v. Crittendon, 883 F.2d 326, 329 (4th Cir. 1989) (quoting

United States v. Taylor, 857 F.2d 210, 213 (4th Cir. 1988)).

"If the police officer possesses a reasonable belief based on 'specific and articulable facts which . . . reasonably warrant' the officer in believing the suspect is dangerous and . . . may gain immediate control of weapons,'" the officer may conduct a Terry frisk of the suspect himself and search the accessible areas of the passenger compartment of the car in which a weapon might be hidden.

Stanley, 16 Va. App. at 875, 433 S.E.2d at 514 (quoting Michigan

v. Long, 463 U.S. 1032, 1049-50 (1983) (citing Terry, 392 U.S.

at 21)).

In Williams v. Commonwealth, 4 Va. App. 53, 65, 354 S.E.2d

79, 85-86 (1987), we held that officers had reasonable

articulable facts upon which to base a Terry stop of the

defendant as he drove away from a residence which was the

subject of a search warrant. In Williams, the police obtained

information from an informant that the defendant possessed and

- 6 - was engaged in the distribution of contraband. See id. A

search warrant was issued for the residence from which the

defendant was said to be distributing the contraband. See id.

The officer's affidavit in support of the search warrant

application described the defendant's vehicle and stated that a

check of the license plate number of the car parked at the

residence showed that the car belonged to the defendant. See

id. at 59, 354 S.E.2d at 82. The police also were aware that

the defendant had a history of drug related offenses. See id.

at 65, 354 S.E.2d at 85-86. We held that these facts

constituted a sufficient basis under Terry upon which to stop

the defendant as he drove away from the residence. See id.

While the facts in Williams were more compelling than the

facts of this case, we hold that the information in the search

warrant was sufficient to establish reasonable suspicion upon

which to base a Terry stop of appellant. Williams does not

require that the identity of the subject of the Terry stop be

known to the police. Prior to stopping appellant, Officers

Dunfee and Gadson were aware that a search warrant was issued

for 4216 Old Brook Road, Apartment Three, based on the

informant's information that "KP" sold drugs from the apartment.

Appellant drove a two-tone gray minivan as described by the

informant and detailed in the search warrant. Further,

appellant fit the general description of "KP" set forth in the

search warrant. We hold that this information provided the

- 7 - officers with reasonable articulable suspicion to detain

appellant for questioning pursuant to Terry.

Once the officers stopped appellant, he became belligerent

and began using abusive language. At that point, the officers

asked appellant to exit the vehicle. Under Mimms, we hold that

they were justified in asking appellant to exit the vehicle as

it was clear from his demeanor that he might pose a threat to

the officers' safety if permitted to remain in the vehicle where

the officers' view of him would be partially obstructed. For

the same reasons, we hold that the officers were entitled to

handcuff appellant once he was outside the vehicle as he

continued to struggle with the officers. Crittendon clearly

contemplates the use of handcuffs to ensure officer safety or to

maintain the status quo during an investigative stop. Finally,

we hold that Officer Dunfee's "quick check" around the driver's

seat for weapons was permissible given appellant's demeanor

during the investigative stop. Appellant's actions could

reasonably warrant the belief that he was dangerous and could

gain control of weapons. It was during the "quick check" that

Officer Dunfee saw marijuana in plain view. The other

contraband and weapons were discovered pursuant to a search

incident to arrest based on the possession of marijuana.

We hold, therefore, that the trial court properly denied

appellant's motion to suppress the evidence as a valid

- 8 - investigative stop pursuant to Terry led to the discovery of the

evidence.

III. CONCLUSION

For these reasons, we hold that the trial court properly

denied appellant's motion to suppress the evidence, and,

therefore, affirm appellant's convictions.

Affirmed.

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