Kenneth Jackson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 14, 2000
• Docket: 2096982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Lemons and Senior Judge Cole Argued at Richmond, Virginia

KENNETH JACKSON * MEMORANDUM OPINION BY v. Record No. 2096-98-2 JUDGE DONALD W. LEMONS MARCH 14, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY L. A. Harris, Jr., Judge

Esther J. Windmueller for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Kenneth Jackson appeals his conviction upon a conditional

guilty plea to possession of cocaine and possession of heroin.

Jackson reserved his right to appeal the denial of his

suppression motion. Finding no error, we affirm his

convictions.

I. BACKGROUND

"'Ultimate questions of reasonable suspicion and probable

cause to make a warrantless search involve questions of both law

and fact and are reviewed de novo on appeal.'" McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (quoting Ornelas v. United States, 517 U.S. 690, 691

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. (1996). This Court, however, 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." Id. at 198, 481 S.E.2d at 261

(citation omitted).

On October 10, 1997, at approximately nine o'clock in the

evening, Henrico County Police Officer Glen Hubbard drove to the

3600 block of Kings Pointe Drive in response to a radio call he

received. An anonymous caller had reported that a prowler was

looking into windows in the back of the apartment complex at

that address. Several similar reports had been received by

police in the previous two weeks concerning the same apartment

complex. This call described a black male, approximately six

feet tall, slender, wearing a black jogging suit, walking in the

rear of that apartment building, and "looking in rear windows."

Within two minutes of the call, Officer Hubbard arrived at

the complex and within one and one-half minutes saw the

defendant, Kenneth Jackson, who matched the anonymous caller's

description of the suspect precisely where the caller said there

was a prowler. Jackson walked at a fast pace toward the front

of the building. Before Jackson reached the front of the

building, Officer Hubbard asked to speak with him. The

defendant ignored Hubbard and proceeded to the front of the

building, opened the door to the apartment and started to cross

- 2 - the threshold. By this time, Officer Edward Smith had joined

Officer Hubbard at the entrance to the apartment.

As he was opening the door, Jackson "reached down real

quick and started fumbling" and retrieved items "from underneath

his pants leg." One of the items appeared to be a shotgun

shell. Jackson placed the shotgun shell and other, as yet

unidentified, items inside the apartment out of view of the

officer but within arm's reach of Jackson. Jackson remained

outside the door.

At that time, Hubbard noticed a woman walking toward the

doorway from inside the apartment and he "asked her to stop

where she was at, which was about halfway between the back of

the apartment to the front door." She stopped and Hubbard

walked through the doorway into the apartment while Officer

Smith detained Jackson outside the door.

During Hubbard's conversation with the woman, he saw some

items on the inside ledge of the window near the door where

Jackson had placed the items he had in his possession. Hubbard

seized the items that consisted of a cigarette pack, a crack

pipe, and a shotgun shell casing.

Hubbard pointed out the shell and crack pipe to Smith who

placed Jackson under arrest for possession of cocaine. A search

of Jackson incident to arrest revealed a wadded up napkin and a

foil packet that contained an off white powder. Subsequent

analysis of both items confirmed that the items contained

- 3 - cocaine and heroin. Although the officers did not know it at

the time, the residence was Jackson's.

II. TERRY STOP

When a defendant appeals a trial court's denial of his

motion to suppress evidence, "the burden is on appellant to

show, considering the evidence in the light most favorable to

the Commonwealth, that the denial . . . constituted reversible

error." Stanley v. Commonwealth, 16 Va. App. 873, 874, 433

S.E.2d 512, 513 (1993).

To conduct an investigatory stop of an individual, the

police must possess reasonable suspicion based on articulable

facts that the individual is, or has been, engaged in criminal

activity. Terry v. Ohio, 392 U.S. 1, 21-22 (1968); Phillips v.

Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993).

"[A]nonymous information that has been sufficiently corroborated

may furnish reasonable suspicion justifying an investigative

stop." Bulatko v. Commonwealth, 16 Va. App. 135, 137, 428

S.E.2d 306, 307 (1993) (citing Alabama v. White, 496 U.S. 325,

331 (1990)). The independent corroboration gives "some degree

of reliability to the other allegations" of the informant. Id.

Here, an anonymous caller gave police a description of a

prowler and his location. Within a few minutes of the call, the

officer observed the defendant who matched the clothing and

physical descriptions given by the caller. The suspect's

- 4 - physical characteristics, the clothing he would be wearing and

his location were all confirmed by police upon arrival.

Additionally, when the officer reached the location, the

defendant behaved suspiciously. He walked quickly by the

officers and did not respond to their questions. As he entered

the apartment, he "reached down real quick and started

fumbling." He then removed some items including one that

appeared to be the casing of a shotgun shell. When viewed in

the light most favorable to the Commonwealth, these facts

support a reasonable, articulable suspicion that Jackson was or

had been engaged in criminal activity. A Terry stop to

investigate further was proper.

III. CROSSING THE THRESHOLD

Once a police officer has properly detained a suspect for

questioning, he may conduct a limited pat-down search of the

suspect for weapons if he reasonably believes, based on specific

and articulable facts, that the suspect might be armed and

dangerous. See Phillips, 17 Va. App. at 30, 434 S.E.2d at 920.

The officer need only "'reasonably believe[] that the individual

might be armed.'" Lansdown v. Commonwealth, 226 Va. 204, 211,

308 S.E.2d 106, 111 (1983) (quoting Simmons v. Commonwealth, 217

Va. 552, 556, 231 S.E.2d 218, 220-21 (1977)), cert. denied, 465

U.S. 1104 (1984). The officer may rely upon the totality of the

circumstances and may consider any suspicious actions of the

person searched, such as an obvious attempt to avoid the officer

- 5 - or any nervous conduct based on the discovery of the officer's

presence. See United States v. Bull, 565 F.2d 869, 870-71 (4th

Cir. 1977), cert. denied, 435 U.S. 946 (1978). See also

Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87

(1987).

Officer Hubbard was justified in making a Terry stop when

the tip had been corroborated. The stop did not occur

immediately because Jackson ignored the officer's questions.

Jackson's refusal to stop combined with his furtive movements at

the doorway and his placement of items inside the threshold

further heightened the officer's suspicion and concern. Upon

seeing what appeared to be a shotgun shell among the items and

the appearance of a third, as yet unidentified, person on the

scene, the officer's concern for his safety and that of the

third party justified a pat-down search and a search of the area

within Jackson's immediate control and that of the third person.

See Servis v. Commonwealth, 6 Va. App. 507, 519, 371 S.E.2d 156,

162 (1988). The officers did not know if the woman walking

toward the area where the shotgun shell and other items had been

placed was a potential victim or a potential accomplice of

Jackson. In the split second within which decisions must be

made on the street, Officer Hubbard reasonably concluded that

ascertaining what had been placed immediately within the

threshold was necessary for officer safety or for the safety of

this, as yet unidentified, woman.

- 6 - "[F]risking for weapons based upon the exigency of

protecting an officer's safety is not limited to a pat-down of

the suspect but may extend to nearby vehicles . . . or rooms or

premises to which the suspect may retreat to secure a weapon."

Washington v. Commonwealth, 29 Va. App. 5, 14, 509 S.E.2d 512,

516 (1999) (en banc). The Fourth Amendment does not require

police to desist from effecting an otherwise valid Terry stop

simply because the suspect moves from his porch to the living

room through a still opened door. See Harbin v. City of

Alexandria 712 F. Supp. 67, 72 (E.D.Va 1989). "If the suspect

moves about, an officer is justified in staying with the

individual during the course of the stop and conducting a

protective search of the areas which come within the suspect's

immediate control, even if this action necessitates entry into

the suspect's home." Servis, 6 Va. App. at 519, 311 S.E.2d at

162.

Police observed Jackson place what appeared to be a shotgun

shell inside the apartment. The area was still within Jackson's

reach, and was within reach of the woman who had yet to be

identified. A weapon there could have been a danger to the

officers or the occupant of the apartment. This danger

presented exigent circumstances justifying the crossing of the

threshold. See Verez v. Commonwealth, 230 Va. 405, 410-11, 337

S.E.2d 749, 753 (1985), cert. denied, 479 U.S. 813 (1986);

Reynolds v. Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659,

- 7 - 663 (1990). In the course of conducting a lawful protective

search of the area within the immediate control of the suspect

and the unidentified woman, Officer Hubbard saw a crack pipe in

plain view. The officer was entitled to seize the contraband.

IV. CONCLUSION

The Terry stop was proper upon corroboration of the tip and

upon observation of Jackson's furtive behavior. Concern for

safety was further heightened by Jackson's placement of what

appeared to be a shotgun shell inside the threshold of the

apartment. The presence of an additional unidentified person

added to the officer's concern for his safety and the safety of

others and justified a pat-down search and a protective search

of the immediate area within Jackson's control and within the

unidentified woman's control. Officer Hubbard was properly in a

location where contraband was in plain view and properly seized

the items. The trial judge did not err in denying the motion to

suppress the evidence. The convictions are affirmed.

Affirmed.

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