COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Overton Argued at Chesapeake, Virginia
KRAIG NOVELL SAVAGE MEMORANDUM OPINION * BY v. Record No. 0799-02-1 JUDGE NELSON T. OVERTON APRIL 1, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY Glen A. Tyler, Judge
Lynwood W. Lewis, Jr. (Vincent, Northam & Lewis, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Kraig Novell Savage appeals his bench trial convictions for
possession of cocaine with the intent to distribute, possession
of a firearm while in possession of a controlled substance and
possession of marijuana. He argues that the trial court erred by
denying his motion to suppress evidence obtained during a stop and
search of his vehicle. He contends the police (1) lacked a
reasonable suspicion of criminal activity to support the stop, (2)
lacked probable cause to search his person, (3) lacked probable
cause to search his vehicle, and (4) questioned him before
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. advising him of his Miranda rights. For the reasons that follow,
we disagree and affirm his convictions.
BACKGROUND
"In reviewing a trial court's denial of a motion to
suppress, 'the burden is upon the defendant to show that the
ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). "[W]e review de novo the trial
court's application of defined legal standards such as probable
cause and reasonable suspicion to the particular facts of the
case." Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d
357, 359 (1999) (citation omitted). "In performing such
analysis, we are 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, 25 Va. App. at 198, 487 S.E.2d at 261
(quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).
Officer W.W. Talbert stopped Savage's car on January 20,
2001. Talbert testified he stopped the vehicle because it did
not have a front license plate. Talbert approached the car and
asked for Savage's license and registration. He testified he
immediately detected a strong odor of burnt marijuana as Savage
- 2 - fumbled for his license. Talbert asked Savage to sit in his car
while he checked Savage's information. Savage suddenly lurched
forward, reached around to the side, and quickly put something
under the seat. Talbert stated the object was the size of
Savage's hand and was black. The officer explained he only
caught a glimpse of the object and became concerned for his
safety. He again asked Savage to step out of the vehicle.
Savage complied. He produced only a handwritten registration
for the car and gave the officer his license number. Talbert
called for assistance and checked the number. Talbert continued
to smell the odor of marijuana emanating from Savage's person.
The officer searched Savage and retrieved from Savage's coat
pocket small bags containing what appeared to be marijuana and
cocaine. Talbert handcuffed Savage and read him his Miranda
rights. Talbert searched the car and found a gun in the area
where he had seen Savage place the object.
The Stop
Savage argues the initial stop was not supported by a
reasonable suspicion of criminal activity.
Under well established Fourth Amendment principles, "[t]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88
- 3 - S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968)). "Actual proof that criminal activity is afoot is not necessary . . . ." Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77, 79 (1992). A police officer may conduct an investigatory stop of a motor vehicle if he has at least "articulable and reasonable suspicion" that the operator is unlicensed, the vehicle is unregistered, or the vehicle or an occupant is otherwise subject to seizure for violating the law. See Murphy v. Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660 (1979)). "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.'" Hoye v. Commonwealth, 18 Va. App. 132, 135, 442 S.E.2d 404, 406 (1994) (quoting Sokolow, 490 U.S. at 8, 109 S. Ct. at 1585).
Reel v. Commonwealth, 31 Va. App. 262, 265-66, 522 S.E.2d 881,
882-83 (2000). Talbert testified he stopped Savage because the
vehicle did not have a front license plate. In pertinent part,
Code § 46.2-715 provides that "[l]icense plates assigned to a
motor vehicle . . . shall be attached to the front and the rear
of the vehicle." Savage contends that temporary plates issued
by dealerships are exempt from this provision and, therefore,
Talbert did not possess an "articulable and reasonable
suspicion" that Savage's vehicle was not in compliance with the
law. However, Savage provides no support for this contention.
The trial court did not err by determining Talbert reasonably
- 4 - suspected Savage was operating his vehicle in violation of Code
§ 46.2-715 and that the officer lawfully stopped Savage.
Search of Savage's Person
Savage contends Talbert lacked probable cause to search his
person.
Before searching Savage, Talbert needed probable cause to
believe Savage had committed a criminal offense or was in the
process of committing one. Parker v. Commonwealth, 255 Va. 96,
106, 496 S.E.2d 47, 53 (1998). "'[P]robable cause exists when
the facts and circumstances within the officer's knowledge . . .
alone are sufficient to warrant a person of reasonable caution
to believe that an offense has been or is being committed.'"
Id. (quoting Taylor v. Commonwealth, 222 Va. 816, 820, 284
S.E.2d 833, 836 (1981)). At the time of the search, Talbert had
detected a strong odor of marijuana coming from Savage's car as
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Overton Argued at Chesapeake, Virginia
KRAIG NOVELL SAVAGE MEMORANDUM OPINION * BY v. Record No. 0799-02-1 JUDGE NELSON T. OVERTON APRIL 1, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY Glen A. Tyler, Judge
Lynwood W. Lewis, Jr. (Vincent, Northam & Lewis, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Kraig Novell Savage appeals his bench trial convictions for
possession of cocaine with the intent to distribute, possession
of a firearm while in possession of a controlled substance and
possession of marijuana. He argues that the trial court erred by
denying his motion to suppress evidence obtained during a stop and
search of his vehicle. He contends the police (1) lacked a
reasonable suspicion of criminal activity to support the stop, (2)
lacked probable cause to search his person, (3) lacked probable
cause to search his vehicle, and (4) questioned him before
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. advising him of his Miranda rights. For the reasons that follow,
we disagree and affirm his convictions.
BACKGROUND
"In reviewing a trial court's denial of a motion to
suppress, 'the burden is upon the defendant to show that the
ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). "[W]e review de novo the trial
court's application of defined legal standards such as probable
cause and reasonable suspicion to the particular facts of the
case." Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d
357, 359 (1999) (citation omitted). "In performing such
analysis, we are 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, 25 Va. App. at 198, 487 S.E.2d at 261
(quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).
Officer W.W. Talbert stopped Savage's car on January 20,
2001. Talbert testified he stopped the vehicle because it did
not have a front license plate. Talbert approached the car and
asked for Savage's license and registration. He testified he
immediately detected a strong odor of burnt marijuana as Savage
- 2 - fumbled for his license. Talbert asked Savage to sit in his car
while he checked Savage's information. Savage suddenly lurched
forward, reached around to the side, and quickly put something
under the seat. Talbert stated the object was the size of
Savage's hand and was black. The officer explained he only
caught a glimpse of the object and became concerned for his
safety. He again asked Savage to step out of the vehicle.
Savage complied. He produced only a handwritten registration
for the car and gave the officer his license number. Talbert
called for assistance and checked the number. Talbert continued
to smell the odor of marijuana emanating from Savage's person.
The officer searched Savage and retrieved from Savage's coat
pocket small bags containing what appeared to be marijuana and
cocaine. Talbert handcuffed Savage and read him his Miranda
rights. Talbert searched the car and found a gun in the area
where he had seen Savage place the object.
The Stop
Savage argues the initial stop was not supported by a
reasonable suspicion of criminal activity.
Under well established Fourth Amendment principles, "[t]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88
- 3 - S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968)). "Actual proof that criminal activity is afoot is not necessary . . . ." Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77, 79 (1992). A police officer may conduct an investigatory stop of a motor vehicle if he has at least "articulable and reasonable suspicion" that the operator is unlicensed, the vehicle is unregistered, or the vehicle or an occupant is otherwise subject to seizure for violating the law. See Murphy v. Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660 (1979)). "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.'" Hoye v. Commonwealth, 18 Va. App. 132, 135, 442 S.E.2d 404, 406 (1994) (quoting Sokolow, 490 U.S. at 8, 109 S. Ct. at 1585).
Reel v. Commonwealth, 31 Va. App. 262, 265-66, 522 S.E.2d 881,
882-83 (2000). Talbert testified he stopped Savage because the
vehicle did not have a front license plate. In pertinent part,
Code § 46.2-715 provides that "[l]icense plates assigned to a
motor vehicle . . . shall be attached to the front and the rear
of the vehicle." Savage contends that temporary plates issued
by dealerships are exempt from this provision and, therefore,
Talbert did not possess an "articulable and reasonable
suspicion" that Savage's vehicle was not in compliance with the
law. However, Savage provides no support for this contention.
The trial court did not err by determining Talbert reasonably
- 4 - suspected Savage was operating his vehicle in violation of Code
§ 46.2-715 and that the officer lawfully stopped Savage.
Search of Savage's Person
Savage contends Talbert lacked probable cause to search his
person.
Before searching Savage, Talbert needed probable cause to
believe Savage had committed a criminal offense or was in the
process of committing one. Parker v. Commonwealth, 255 Va. 96,
106, 496 S.E.2d 47, 53 (1998). "'[P]robable cause exists when
the facts and circumstances within the officer's knowledge . . .
alone are sufficient to warrant a person of reasonable caution
to believe that an offense has been or is being committed.'"
Id. (quoting Taylor v. Commonwealth, 222 Va. 816, 820, 284
S.E.2d 833, 836 (1981)). At the time of the search, Talbert had
detected a strong odor of marijuana coming from Savage's car as
well as emanating from his person. He observed Savage furtively
stash a black object beneath the seat, fumble suspiciously
through his belongings looking for his license, and fail to
produce any identification. The odor of marijuana, coupled with
his previous observations, provided Talbert probable cause to
search Savage.
Vehicle Search
Savage argues the officer lacked a reasonable suspicion or
probable cause to continue Savage's seizure and that the
- 5 - evidence the officer subsequently obtained from the vehicle
should have been suppressed.
"Reasonableness is judged from the perspective of a
reasonable officer on the scene allowing for the need of
split-second decisions and without regard to the officer's
intent or motivation." Scott v. Commonwealth, 20 Va. App. 725,
727, 460 S.E.2d 610, 612 (1995). "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." James v. Commonwealth, 22 Va. App. 740,
745, 473 S.E.2d 90, 92 (1996) (citation omitted). The officer
acted reasonably in detaining Savage.
Talbert smelled the odor of burnt marijuana when he
approached Savage's vehicle. He also observed Savage hide an
object beneath the front seat. Under the circumstances, Talbert
lawfully stopped Savage and he reasonably held Savage while he
investigated the source of the odor and Savage's suspicious
behavior.
Miranda
Savage argues the trial court erred by failing to suppress
a statement to Talbert. He contends Talbert asked him what he
had in his car before the officer read him his Miranda rights.
"Failure to give Miranda warnings prior to custodial
interrogation requires suppression of any illegally obtained
- 6 - statements." Blain v. Commonwealth, 7 Va. App. 10, 13, 371
S.E.2d 838, 840 (1988). We need not decide whether Savage was
in custody at the time of his statement. Talbert testified he
advised Savage of his Miranda rights as he handcuffed Savage.
He denied asking Savage what was in the car and stated he looked
beneath the seat where he had earlier seen Savage hide the
object. Talbert located the gun under the car's front seat.
The trial court believed the officer and rejected Savage's
testimony. "The credibility of the witnesses and the weight
accorded the evidence are matters solely for the fact finder who
has the opportunity to see and hear that evidence as it is
presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455
S.E.2d 730, 732 (1995). The trial court did not err by denying
Savage's motion to suppress the evidence.
For these reasons, we affirm the convictions.
Affirmed.
- 7 -