COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata Argued at Alexandria, Virginia
MOMAR O. GUY, s/k/a MOMAR OBOI GUY MEMORANDUM OPINION * BY v. Record No. 1949-99-2 CHIEF JUDGE JOHANNA L. FITZPATRICK JUNE 27, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY Charles L. McCormick, III, Judge
Tracy L. Quackenbush, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Momar O. Guy (appellant) was convicted in a bench trial of
larceny, subsequent offense, in violation of Code §§ 18.2-96
and 18.2-103. The trial court denied appellant's pretrial motion
to suppress evidence seized from a search of his person and a
subsequent statement made to a police officer. On appeal, he
argues that the evidence was insufficient to justify a Terry frisk
for weapons. In the alternative, he argues that the search
exceeded the scope of a Terry pat-down search for weapons and that
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. the "plain feel" doctrine does not apply. For the following
reasons, we reverse the judgment of the trial court.
I.
On appeal, the defendant bears the burden to establish that
denying the motion to suppress was reversible error. Whether a
seizure occurred and whether a frisk for weapons was
constitutionally valid involve questions of law and fact which
we review de novo on appeal. See McGee v. Commonwealth, 25 Va.
App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) (citing
Ornelas v. United States, 517 U.S. 690, 699 (1996)). "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. . . ." Id. (citing Ornelas, 517 U.S.
at 699). We view the evidence in the light most favorable to
the prevailing party, the Commonwealth in this instance. See
Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138,
139 (1994).
Viewed in this light, the evidence at the suppression
hearing established that on May 27, 1998, Officer Daniel Frazier
(Frazier) was providing security for the grand opening of a
Wal-Mart. On that occasion, Frazier was standing at appellant's
car writing a parking summons for failure to display a town
decal. "At that point in time [Frazier] noticed [appellant]
come out of the Wal-Mart, walk two rows over and duck down
behind a pick-up truck and was looking above the bed of the
- 2 - pick-up truck at [Frazier]." The officer "motioned" appellant
over to him and asked for identification. Upon learning that
appellant had a suspended license, Frazier issued appellant a
traffic summons for driving on a suspended operator's license.
Appellant indicated he was going to call someone to drive him
home.
As Frazier was finishing the paperwork in his car, a woman
approached him and advised him that appellant "had gone back
over to the pick-up truck and picked something up . . . and
stuck it in the waistband -- in the crotch of his pants." When
the officer looked up, he saw appellant behind the pick-up truck
walking towards the store.
The officer directed appellant back to him and asked
appellant "what he had stuck down in his pants." Frazier
testified as follows:
[Appellant] told me -- I don't know if he made any statement or not. I think he told me he didn't have anything. At that point in time I put him against the car and told him to put his hands on the car. I stepped back, patted him down for weapons. I went to the crotch area and I felt a square box. At that point I knew it wasn't a weapon. I asked him to remove it or asked him what it was and he removed it.
The item was a "Walkman" device that was still in its store
packaging. Appellant was handcuffed, taken into the store to
the security officer, and questioned. According to Frazier,
- 3 - appellant stated that he had stolen the "Walkman" because "he
was bored."
The trial court denied appellant's pretrial motion to
suppress the evidence and subsequent statements and convicted
appellant of larceny, subsequent offense, in violation of Code
§§ 18.2-96 and 18.2-103.
II.
Fourth Amendment jurisprudence recognizes three categories
of police-citizen confrontations, including the following:
"(1) consensual encounters, (2) brief, minimally intrusive
investigatory detentions, based upon specific, articulable
facts, commonly referred to as Terry stops, and (3) highly
intrusive arrests and searches founded on probable cause."
Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744,
747 (1995) (citations omitted). An investigatory stop may be
initiated only when an officer has "a reasonable suspicion,
based on objective facts, that the individual is involved in
criminal activity." Brown v. Texas, 443 U.S. 47, 51 (1979); see
Terry v. Ohio, 392 U.S. 1, 21-22 (1968).
Assuming, without deciding, that the stop and frisk for
weapons in the instant case was permissible under Terry, 1 the
1 As an initial matter, the Commonwealth contends that the issue of whether the officer reasonably stopped appellant was not properly preserved at trial and, thus, is barred by Rule 5A:18. However, because we assume, without deciding, that the stop was constitutionally valid, the Commonwealth's procedural challenge is moot.
- 4 - removal of the object from inside appellant's clothing exceeded
the scope of that pat-down frisk for weapons. It is well
established that "[a] search for weapons in the absence of
probable cause to arrest . . . must, like any other search, be
strictly circumscribed by the exigencies which justify its
initiation." Id. at 25-26 (citing Warden v. Hayden, 387 U.S.
294 (1967)). "The purpose of this limited search is not to
discover evidence of a crime, but to allow the officer to pursue
his investigation without fear of violence. . . ." Adams v.
Williams, 407 U.S. 143, 136 (1972). Thus, the pat-down frisk
"must be limited to that which is necessary for the discovery of
weapons which might be used to harm the officer or others nearby
. . . ." Terry, 392 U.S. at 26. See also Ybarra v. Illinois,
444 U.S. 85, 94-94 (1979) ("Nothing in Terry can be understood
to allow a generalized 'cursory search for weapons' or, indeed,
any search whatever for anything but weapons.").
In Minnesota v. Dickerson, 508 U.S. 366 (1993), the United
States Supreme Court established the "plain feel" doctrine,
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata Argued at Alexandria, Virginia
MOMAR O. GUY, s/k/a MOMAR OBOI GUY MEMORANDUM OPINION * BY v. Record No. 1949-99-2 CHIEF JUDGE JOHANNA L. FITZPATRICK JUNE 27, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY Charles L. McCormick, III, Judge
Tracy L. Quackenbush, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Momar O. Guy (appellant) was convicted in a bench trial of
larceny, subsequent offense, in violation of Code §§ 18.2-96
and 18.2-103. The trial court denied appellant's pretrial motion
to suppress evidence seized from a search of his person and a
subsequent statement made to a police officer. On appeal, he
argues that the evidence was insufficient to justify a Terry frisk
for weapons. In the alternative, he argues that the search
exceeded the scope of a Terry pat-down search for weapons and that
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. the "plain feel" doctrine does not apply. For the following
reasons, we reverse the judgment of the trial court.
I.
On appeal, the defendant bears the burden to establish that
denying the motion to suppress was reversible error. Whether a
seizure occurred and whether a frisk for weapons was
constitutionally valid involve questions of law and fact which
we review de novo on appeal. See McGee v. Commonwealth, 25 Va.
App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) (citing
Ornelas v. United States, 517 U.S. 690, 699 (1996)). "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. . . ." Id. (citing Ornelas, 517 U.S.
at 699). We view the evidence in the light most favorable to
the prevailing party, the Commonwealth in this instance. See
Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138,
139 (1994).
Viewed in this light, the evidence at the suppression
hearing established that on May 27, 1998, Officer Daniel Frazier
(Frazier) was providing security for the grand opening of a
Wal-Mart. On that occasion, Frazier was standing at appellant's
car writing a parking summons for failure to display a town
decal. "At that point in time [Frazier] noticed [appellant]
come out of the Wal-Mart, walk two rows over and duck down
behind a pick-up truck and was looking above the bed of the
- 2 - pick-up truck at [Frazier]." The officer "motioned" appellant
over to him and asked for identification. Upon learning that
appellant had a suspended license, Frazier issued appellant a
traffic summons for driving on a suspended operator's license.
Appellant indicated he was going to call someone to drive him
home.
As Frazier was finishing the paperwork in his car, a woman
approached him and advised him that appellant "had gone back
over to the pick-up truck and picked something up . . . and
stuck it in the waistband -- in the crotch of his pants." When
the officer looked up, he saw appellant behind the pick-up truck
walking towards the store.
The officer directed appellant back to him and asked
appellant "what he had stuck down in his pants." Frazier
testified as follows:
[Appellant] told me -- I don't know if he made any statement or not. I think he told me he didn't have anything. At that point in time I put him against the car and told him to put his hands on the car. I stepped back, patted him down for weapons. I went to the crotch area and I felt a square box. At that point I knew it wasn't a weapon. I asked him to remove it or asked him what it was and he removed it.
The item was a "Walkman" device that was still in its store
packaging. Appellant was handcuffed, taken into the store to
the security officer, and questioned. According to Frazier,
- 3 - appellant stated that he had stolen the "Walkman" because "he
was bored."
The trial court denied appellant's pretrial motion to
suppress the evidence and subsequent statements and convicted
appellant of larceny, subsequent offense, in violation of Code
§§ 18.2-96 and 18.2-103.
II.
Fourth Amendment jurisprudence recognizes three categories
of police-citizen confrontations, including the following:
"(1) consensual encounters, (2) brief, minimally intrusive
investigatory detentions, based upon specific, articulable
facts, commonly referred to as Terry stops, and (3) highly
intrusive arrests and searches founded on probable cause."
Wechsler v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744,
747 (1995) (citations omitted). An investigatory stop may be
initiated only when an officer has "a reasonable suspicion,
based on objective facts, that the individual is involved in
criminal activity." Brown v. Texas, 443 U.S. 47, 51 (1979); see
Terry v. Ohio, 392 U.S. 1, 21-22 (1968).
Assuming, without deciding, that the stop and frisk for
weapons in the instant case was permissible under Terry, 1 the
1 As an initial matter, the Commonwealth contends that the issue of whether the officer reasonably stopped appellant was not properly preserved at trial and, thus, is barred by Rule 5A:18. However, because we assume, without deciding, that the stop was constitutionally valid, the Commonwealth's procedural challenge is moot.
- 4 - removal of the object from inside appellant's clothing exceeded
the scope of that pat-down frisk for weapons. It is well
established that "[a] search for weapons in the absence of
probable cause to arrest . . . must, like any other search, be
strictly circumscribed by the exigencies which justify its
initiation." Id. at 25-26 (citing Warden v. Hayden, 387 U.S.
294 (1967)). "The purpose of this limited search is not to
discover evidence of a crime, but to allow the officer to pursue
his investigation without fear of violence. . . ." Adams v.
Williams, 407 U.S. 143, 136 (1972). Thus, the pat-down frisk
"must be limited to that which is necessary for the discovery of
weapons which might be used to harm the officer or others nearby
. . . ." Terry, 392 U.S. at 26. See also Ybarra v. Illinois,
444 U.S. 85, 94-94 (1979) ("Nothing in Terry can be understood
to allow a generalized 'cursory search for weapons' or, indeed,
any search whatever for anything but weapons.").
In Minnesota v. Dickerson, 508 U.S. 366 (1993), the United
States Supreme Court established the "plain feel" doctrine,
which holds that contraband discovered during a lawful Terry
stop is admissible so long as the search does not exceed the
bounds permitted by Terry. See id. at 373. Thus, if the
contour or mass of the object makes its identity immediately
apparent, the officer may lawfully seize it. See id. at 375.
Once an officer has determined that the object is not a weapon,
- 5 - however, and if its shape or size does not indicate its
contraband nature, the search must stop. See id. at 378.
In the instant case, Frazier's search of appellant should
have ceased once the officer determined that appellant possessed
no weapons. See Harris v. Commonwealth, 241 Va. 146, 152, 400
S.E.2d 191, 195 (1991). When the officer patted down
appellant's "crotch area" and "felt a square box," he
immediately "knew it wasn't a weapon." Frazier did not know
what the object was and could only describe it as "[h]ard box
shaped." Indeed, Frazier did not learn that the item was stolen
until well after it was removed from appellant's pants when the
officer escorted appellant to Wal-Mart security inside the
store. Here, the officer's search of appellant's pants and
seizure of the "square box" after having concluded that it was
not a weapon was unrelated to the sole justification of the
pat-down frisk (i.e., "the protection of the police officer and
others nearby."). Therefore, "it amounted to the sort of
evidentiary search that Terry expressly refused to authorize."
Dickerson, 508 U.S. at 378.
While the officer was not required to be certain of the
item's nature, he was required to possess probable cause that
the item was either contraband or evidence of a crime. See
Ruffin v. Commonwealth, 13 Va. App. 206, 209, 409 S.E.2d 177,
179 (1991). Because the evidence was insufficient to establish
probable cause that appellant had committed a crime, the search
- 6 - exceeded the bounds permitted by Terry. Accordingly, the trial
court erred in refusing to suppress the evidence.
For the following reasons, we reverse the judgment of the
trial court and dismiss the indictment.
Reversed and dismissed.
- 7 -