Randolph Beale, Jr, etc. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 1, 1997
• Docket: 1412961
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Willis and Bray Argued at Norfolk, Virginia

RANDOLPH BEALE, JR., S/K/A RANDOLPH W. BEALE MEMORANDUM OPINION * BY v. Record No. 1412-96-1 JUDGE JERE M. H. WILLIS, JR. APRIL 1, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Kenneth N. Whitehurst, Jr., Judge Melinda R. Glaubke, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Randolph Beale, Jr. was convicted by a jury of assault and

battery of a police officer and possession of cocaine. On

appeal, he contends that the trial court erred in denying his

motion to suppress the evidence. We find no error and affirm the

judgment of the trial court.

In an appeal of a ruling on a motion to suppress, the

appellant has the burden to demonstrate that, viewing the

evidence in the light most favorable to the Commonwealth, the

trial court's decision constituted reversible error. Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). As

a general matter, determinations of reasonable suspicion and

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. probable cause are reviewed de novo; however, we review the trial

court's findings of historical fact only for clear error, and

impart due weight to inferences derived from those facts by

resident judges and local law enforcement officials. James v.

Commonwealth, 22 Va. App. 740, 743, 473 S.E.2d 90, 91 (1996)

(citing Ornelas v. United States, 116 S. Ct. 1657 (1996)).

In the early morning hours of July 3, 1995, Officer Sean

Coerse was dispatched in a marked police vehicle to investigate

reports that a white male was attempting to buy drugs in the 700

block of 16th Street in Virginia Beach. When Coerse arrived, he

observed Beale standing in the middle of the street, and leaning

into the window of a stopped vehicle. The car drove away, and

Beale walked off. Coerse stopped his police car near Beale and

asked whether "he had a minute." Beale approached, leaned into

the police car, and asked "what was up." Coerse got out of his car, and told Beale that he was

investigating suspected narcotics activity. Beale said that had

"nothing to with him." Coerse asked Beale whether he had been

arrested for any weapon or drug violations. Beale admitted

having been arrested for cocaine possession. Coerse asked

whether Beale had any weapons or drugs in his possession. Beale

stated that he did not. Coerse asked Beale whether he had any

identification. Beale replied that it was at home. During their

conversation, Coerse noticed a large bulge in the left pocket of

Beale's shorts.

- 2 - Coerse then asked whether he could search Beale. Beale

asked "why?" Coerse explained that he was conducting a narcotics

investigation. Coerse asked again whether he could search Beale.

Beale said: "Why, I'm not under arrest." Coerse agreed. Coerse

again asked whether Beale had any identification. When Beale

replied that he did not, Coerse asked whether he would permit a

search. Beale replied "No, you can't search me."

Coerse testified that he then informed Beale that he was

going to issue him a summons for "pedestrian in the roadway,"

a violation of Virginia Beach City Code § 21-462. Cf. Code

§ 46.2-928. Beale turned and began to walk away, but Coerse

grabbed the back of his shorts. He told Beale that he intended

to issue him a summons. Beale became "real nervous," and

motioned to a nearby residence, indicating that his

identification was there. Coerse replied that he did not need

Beale's identification.

Beale placed his left hand into the pocket with the "bulge."

Concerned that Beale was reaching for a weapon, Coerse requested

that Beale remove his hand from his pocket. Coerse frisked Beale

for weapons and "immediately recognized that [the bulge] wasn't a

weapon," suspecting, instead, that it was crack cocaine in a

plastic bag. When asked what was in his pocket, Beale said it

was money, and pulled out a dollar bill.

Coerse then placed Beale inside the police vehicle. While

he radioed for back-up, Coerse observed Beale take a quantity of

- 3 - what he believed to be crack cocaine out of his pocket and place

it into his sock. Beale looked up and saw that Coerse was

watching him. Beale took the item out of the sock and brought it

up to his mouth. Coerse opened the car door and grabbed Beale's

hand. Beale and Coerse exchanged blows, and Beale fled. Coerse

and another officer apprehended him and searched him pursuant to

that arrest. The search revealed cocaine. Coerse never issued

Beale a summons for a pedestrian in the roadway violation. While conceding that his encounter with Coerse was initially

consensual, Beale argues that he was impermissibly seized when

Coerse grabbed his shorts, and that the subsequent pat-down for

weapons was unreasonable, requiring suppression of the evidence.

We disagree.

A police officer is entitled to detain briefly an individual

who has committed an offense, in order to obtain information

required for the issuance of a summons. See Code §§ 19.2-74,

46.2-936. Coerse had probable cause to charge Beale with

violating a city ordinance. See Durant v. City of Suffolk, 4 Va.

App. 445, 447, 358 S.E.2d 732, 733 (1987). After informing Beale

that he intended to issue him a summons, Coerse legally detained

him. Cf. Payne v. Commonwealth, 14 Va. App. 86, 414 S.E.2d 869

(1992).

The Fourth Amendment limits governmental action by

guaranteeing all citizens the right to "be secure in their

persons, houses, papers, and effects from unreasonable searches

- 4 - and seizures . . . ." Terry v. Ohio, 392 U.S. 1, 8 (1968).

"[E]vidence obtained in violation of constitutional proscriptions

against unreasonable searches and seizures may not be used

against an accused." Troncoso v. Commonwealth, 12 Va. App. 942,

944, 407 S.E.2d 349, 350 (1991). Assuming, without deciding,

that the limited search of Beale for weapons was unreasonable,

the poisonous tree bore no fruit. Because no inculpatory

evidence was retrieved in the pat-down, no recourse may be had to

suppress that which does not exist. The cocaine seized in this case resulted from a lawful

search incident to a valid arrest. See Poindexter v.

Commonwealth, 16 Va. App. 730, 733-34, 432 S.E.2d 527, 529-30

(1993). Probable cause to arrest Beale arose from his production

of apparent cocaine into plain view and his assault and battery

on Officer Coerse. See Buck v. Commonwealth, 20 Va. App. 298,

303-04, 456 S.E.2d 534, 536-37 (1995).

Accordingly, the trial court correctly denied Beale's motion

to suppress the evidence. The judgment of the trial court is

affirmed. Affirmed.

- 5 -