Levelle D. Terry v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: January 31, 2023
• Docket: 1365212
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Chaney, Raphael and Callins UNPUBLISHED

Argued by videoconference

LEVELLE D. TERRY MEMORANDUM OPINION* BY v. Record No. 1365-21-2 JUDGE STUART A. RAPHAEL JANUARY 31, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY Randall G. Johnson, Jr., Judge

Kevin E. Calhoun for appellant.

Lucille M. Wall, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Claiming that the trial court erred in denying his motion to suppress, Levelle D. Terry

appeals his two convictions for possession of a Schedule I or II controlled substance (cocaine

and methamphetamine), in violation of Code § 18.2-250. We find that Terry was lawfully

detained as a passenger in a vehicle properly stopped for traffic infractions. During that lawful

detention, the officer properly requested Terry’s identification, which Terry voluntarily provided.

Discovering that Terry had outstanding arrest warrants, the officers lawfully arrested him,

discovering those narcotics in their search incident to arrest. Rejecting Terry’s claim that he was

tricked into providing his identification, we affirm his convictions.

* Pursuant to Code § 17.1 413, this opinion is not designated for publication. BACKGROUND1

On June 24, 2020, Henrico County Police Officer Michael Berry observed a car without a

front license plate being driven away from a hotel. Officer Berry followed the vehicle, intending to

make a traffic stop for the missing plate. The driver then made a right turn from the center lane into

a 7-Eleven parking lot. Officer Berry turned on his warning lights and initiated a traffic stop.

As Officer Berry approached the driver’s side of the vehicle, the driver was stepping out.

Berry instructed the driver to get back inside, and the driver complied. Berry explained the reason

for the stop and asked the driver for his driver’s license and registration. While the driver searched

for his registration, Berry requested a K9 unit because “[t]he hotel and the area [the vehicle] left is a

high narcotics area.”

There were two passengers in the vehicle: Terry sat in the front passenger seat, and a woman

sat in the backseat. Officer Berry asked them both for identification. Terry hesitated and asked why

the officer needed it. Berry replied that he “tr[ies] to identify everybody that’s in the vehicle on a

traffic stop just so [he] know[s] . . . who’s in the car.” Terry responded, “Oh, all right,” and handed

over his identification. By that point, Officer Ralph Adams had arrived and approached the

passenger side of the car.

As the driver kept looking for his registration, Officer Berry engaged the backseat passenger

in conversation. He asked whether there was anything illegal in the car and about her previous drug

use. After several minutes of looking for his registration, the driver told Berry that he could not find

it. Berry then asked the driver the same questions he had asked the backseat passenger, because the

vehicle was “coming from a high narcotic area.” When he finished speaking with the driver, Berry

returned to his patrol car and ran each occupant’s information.

On appeal, “we recite the evidence below ‘in the “light most favorable” to the 1

Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). -2- In the meantime, Terry asked Officer Adams if he “could go into the store.” Adams

responded that Terry needed to wait but could go into the store “as soon as” Officer Berry “was

done,” which “shouldn’t be long.” About a minute later, Berry received notification that Terry had

outstanding arrest warrants. Berry radioed for backup and prepared a ticket for the driver.

When the K-9 officer arrived soon after, all occupants were instructed to remain in the

vehicle. The drug-sniffing dog alerted that there were narcotics in the car. Because Terry had

outstanding warrants, the officers extracted him first. Although Terry had been cooperative and

calm until then, he began to argue and then tried to flee. Officer Adams placed Terry in handcuffs

and told him that Officer Berry had discovered his outstanding warrants.

After confirming that the warrants were valid, Adams arrested Terry. Adams conducted a

search incident to arrest and discovered a baggie of white powder and several other items. Testing

confirmed—and Terry stipulated—that the baggie contained cocaine and methamphetamine.

Terry moved to suppress the narcotics, arguing that he was illegally detained. He reasoned

that the seizure was not a typical traffic stop in which it would have been “impractical or illogical to

ask passengers to . . . get out and walk away.” Terry claimed that he had arrived at his intended

destination—the 7-Eleven—and there were no safety concerns that justified detaining him further,

rather than allowing him to join “the other people who were milling about going about their

business in the store.” Terry also argued that the officers obtained his identification through illegal

and coercive tactics.

The trial court denied Terry’s suppression motion, finding that Terry was legally detained as

part of a valid traffic stop and that he was not coerced into handing over his identification. The jury

convicted Terry of two counts of possession in violation of Code § 18.2-250. Terry was sentenced

to ten years’ incarceration on each conviction, with six years and six months suspended on the

-3- cocaine conviction and all ten years suspended on the methamphetamine conviction. He noted a

timely appeal.

ANALYSIS

“The law regarding appellate review of a trial court’s decision on a motion to suppress is

well settled. The appellant bears the burden of establishing that reversible error occurred.”

Williams v. Commonwealth, 71 Va. App. 462, 474 (2020). “[A]n appellate 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) (first

alteration in original) (quoting Commonwealth v. Robertson, 275 Va. 559, 563 (2008)). “On

appeal, a ‘defendant’s 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)).

A. Terry was properly detained as part of a lawful traffic stop (Assignment of Error 1).

Terry claims that his detention was unlawful. He argues that the stop was “not a

traditional traffic stop” because the occupants had already arrived at their intended destination.

Terry theorizes that there were “three separate Terry2 stops on each of the three passengers in the

vehicle,” so to justify detaining him, the officers needed reasonable, articulable suspicion that

Terry was about to commit a crime or that he posed a risk to officer safety. Terry reasons that,

because the officers admitted that Terry was not suspected of criminal wrongdoing and did not

threaten their safety, his detention was unlawful.

“The Fourth Amendment protects people from unreasonable searches and seizures.”

Williams, 71 Va. App. at 476. When determining whether the Fourth Amendment has been

2 See Terry v. Ohio, 392 U.S. 1 (1968). -4- violated, we look at the totality of the circumstances. Samson v. California, 547 U.S. 843, 848

(2006). “Although limited in purpose and length of detention, an investigative traffic stop

constitutes a seizure within the meaning of the Fourth Amendment.” Harris v. Commonwealth,

276 Va. 689, 694 (2008). An officer may initiate a traffic stop only when he has reasonable

suspicion to believe that a traffic or equipment violation has occurred. Bass v. Commonwealth,

259 Va. 470, 475 (2000).

During a lawful traffic stop, “a police officer effectively seizes ‘everyone in the vehicle,’

the driver and all passengers.” Arizona v. Johnson, 555 U.S. 323, 327 (2009) (quoting Brendlin

v. California, 551 U.S. 249, 255 (2007)). “‘[A]s a practical matter, the passengers are already

stopped by virtue of the stop of the vehicle,’ so ‘the additional intrusion on the passenger is

minimal.’” Id. at 332 (quoting Maryland v. Wilson, 519 U.S. 408, 413-15 (1997)). Like the

driver, the passenger is considered “seized” from the time the vehicle is stopped. Id.

“The temporary seizure of driver and passengers ordinarily continues, and remains

reasonable, for the duration of the stop.” Id. at 333. During a lawful stop, police may “obtain

the registration for the vehicle and request the identities of its occupants,” “seek radio dispatch

confirmation of the information obtained from the vehicle occupants,” detain the driver and

passengers for “the duration of the stop,” and “ask questions unrelated to the traffic violation.”

Thomas v. Commonwealth, 57 Va. App. 267, 277 (2010). “An officer’s inquiries into matters

unrelated to the justification for the traffic stop . . . do not convert the encounter into something

other than a lawful seizure, so long as those inquiries do not measurably extend the duration of

the stop.” Johnson, 555 U.S. at 333. Because “traffic stops are ‘especially fraught with danger

to police officers[,]’ ‘[t]he risk of harm to both the police and the occupants [of a stopped

vehicle] is minimized . . . if the officers routinely exercise unquestioned command of the

-5- situation.’” Id. at 330 (third alteration in original) (first quoting Michigan v. Long, 463 U.S.

1032, 1047 (1983); then quoting Wilson, 519 U.S. at 414).

In this case, the officers lawfully stopped the driver’s vehicle for traffic infractions.

Officer Berry saw that the vehicle lacked a front license plate and had made an illegal right-hand

turn. Having observed both an equipment and a traffic violation, Berry had reasonable suspicion

to initiate the traffic stop. Bass, 259 Va. at 475. Having lawfully stopped the vehicle, Berry

could legally detain Terry—as “a passenger” in the vehicle—for “the duration of the stop.”

Thomas, 57 Va. App. at 277. Berry was also permitted “to obtain the registration for the vehicle

and request the identities of its occupants.” Id. Terry’s outstanding arrest warrants were

discovered during that lawful investigation.

That the vehicle had arrived at its destination, the 7-Eleven, does not take the case out of

the traffic-stop context. Because the officers were entitled to “exercise unquestioned command

of the situation” during the stop, Johnson, 555 U.S. at 330 (quoting Wilson, 519 U.S. at 414),

they were not required to let Terry exit the vehicle to go into the store. “[T]he same weighty

interest in officer safety . . . is present regardless of whether the occupant of the stopped car is a

driver or passenger.” Id. at 331 (first alteration in original) (quoting Wilson, 519 U.S. at 413).

Indeed, “the motivation of a passenger to employ violence to prevent apprehension of . . . a

crime . . . is every bit as great as that of the driver.” Id. at 331-32 (quoting Wilson, 519 U.S. at

414). The officers were “not constitutionally required to give [the passenger] an opportunity to

depart the scene after he exited the vehicle without first ensuring that, in so doing, [the officers

were] not permitting a dangerous person to get behind [them].” Id. at 334. “It is also reasonable

for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will

not let people move around in ways that could jeopardize his safety.” Brendlin, 551 U.S. at 258.

-6- B. Terry voluntarily provided the officer with his identification (Assignment of Error 2).

Terry argues that “any consent he provided to the police to review his identification card

and run the information it contained through police databases was unlawfully obtained because

. . . he was being illegally detained by the police.” Terry incorporates his earlier arguments that

the detention was illegal and notes that any consent he provided was tainted by that illegality.

He also argues that his consent was not voluntary because it was obtained through coercive and

deceptive police actions. Terry says that Officer Berry failed to disclose that he planned to check

for outstanding warrants and failed to advise that Terry was not required to provide his

identification. Terry adds that the presence of multiple officers on the scene suggested that he

had to comply.

As explained above, we find that Terry was lawfully detained during a valid investigative

traffic stop. As part of that lawful stop, Officer Berry could request Terry’s identification and

verify the information through the police database. Although neither party cites it, our decision

in Thomas governs this issue: “With respect to passengers, if ‘an officer may “as a matter of

course” and in the interest of personal safety order a passenger physically to exit the vehicle, he

may surely take the minimally intrusive step of requesting passenger identification.’” Thomas,

57 Va. App. at 277 n.9 (quoting United States v. Soriano-Jarquin, 492 F.3d 495, 500 (4th Cir.

2007)).3

3 Although the United States Supreme Court has not decided the question, “all federal circuit courts to address the issue have concluded that officers may request a passenger’s identification during a traffic stop and run a warrants check, even absent an independent basis for doing so.” Perozzo v. State, 493 P.3d 233, 238-39 & n.19 (Alaska Ct. App. 2021) (collecting cases). A handful of “state courts, however, have concluded that officers are prohibited from requesting identification from passengers during a traffic stop, absent reasonable suspicion of wrongdoing or some other case-specific justification beyond general officer safety concerns.” Id. at 239 & n.24 (collecting cases). Barring a contrary ruling by the United States Supreme Court, by our Supreme Court, or by a decision of this Court sitting en banc, we must follow Thomas. -7- We also agree with the trial court that Terry’s acquiescence to Officer Berry’s request

was voluntary. Berry requested Terry’s identification. Berry did not become visibly agitated or

impatient when Terry asked why Berry needed it. Berry explained that he simply “wanted to

know who [he was] talking to,” and Terry, without objection or further questions said, “Oh, all

right,” handing it over. The evidence supported the trial court’s finding that Berry’s request for

Terry’s identification was not coercive. We reject Terry’s argument that Berry was required to

inform him of his right to refuse the request for identification. An officer’s “failure to inform [a]

defendant[] of [his] [F]ourth [A]mendment protections or [his] right to refuse consent [to a

search] does not render the consent involuntary.” Limonja v. Commonwealth, 7 Va. App. 416,

424 (1988). In short, we conclude that Terry provided his identification voluntarily and was not

coerced into doing so.

CONCLUSION

Terry was detained during a valid investigative traffic stop. Officer Berry properly

requested Terry’s identification, and Terry provided it voluntarily. Accordingly, the trial court

did not err in denying Terry’s motion to suppress.

Affirmed.

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