COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements Argued at Richmond, Virginia
TRACY LAMONT WILLIAMS MEMORANDUM OPINION * BY v. Record No. 1827-00-3 JUDGE JAMES W. BENTON, JR. JULY 24, 2001 COMMONWEALTH OF VIRGINIA AND CITY OF DANVILLE
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge
S. Jane Chittom, Appellate Defender (Public Defender Commission, on briefs), for appellant.
Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General; William H. Fuller, III, Commonwealth's Attorney; James C. Martin, Assistant Commonwealth's Attorney, on briefs), for appellees.
Tracy Lamont Williams appeals his convictions for three
felonies and two misdemeanors on the ground that the trial judge
improperly admitted evidence obtained through an illegal search
and seizure. He also contends the evidence against him was
insufficient to justify a conviction for one of the
misdemeanors. We affirm the convictions, but we remand the case
for clarification of the sentencing order.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.
The grand jury indicted Williams for the felonies of
possession of cocaine, possession of a firearm while possessing
cocaine, and possession of a firearm after conviction of a
felony. In addition, warrants charged Williams with
misdemeanors of attempting to impede a law enforcement officer
and brandishing a firearm.
The evidence proved that Officer Samuel Bray was sitting in
his patrol vehicle when he saw a white Chrysler, which he had
stopped two weeks earlier while it was being driven by a person
with a suspended license. The officer noticed that the driver
appeared to be the same person, and he activated his lights.
After the car stopped and the officer exited his vehicle, the car,
which contained two occupants, sped away.
The officer pursued the car, saw it stop, and saw the driver
and passenger run into the woods. As the two men ran in the same
direction, the officer chased them and gained on Williams, the
passenger. Williams looked back at the officer, brought his hands
"in front of him towards his waist, and then he fell to the
ground." He lay face down with his hands under him at his waist.
The officer testified that he stopped his pursuit of the driver
because he "was in fear of [his] safety" and "was not going to
turn [his] back on" Williams.
The officer twice commanded Williams to show him his hands.
Williams did not comply. When the officer grabbed Williams'
- 2 - right arm, Williams pulled his left hand over his left shoulder.
He was holding a gun with the muzzle pointed at the officer.
The officer lay on Williams and attempted to seize the handgun.
Eventually, the officer used a chemical spray to subdue
Williams. After handcuffing Williams, the officer searched him
and found a razor blade with cocaine residue on it.
The trial judge ruled that no Fourth Amendment violation
occurred and denied the motion to suppress. At the conclusion
of all the evidence, he convicted Williams on all charges.
II.
The Commonwealth first contends that Code § 19.2-266.2 bars
Williams' challenge to the admission of the evidence against
him. The statute requires that motions seeking to suppress
evidence on Fourth Amendment grounds be made in writing seven
days before trial. Williams, however, filed his motion four
days before the suppression hearing and his trial.
The Commonwealth did not object at the hearing or at trial
to the timeliness of the motion. Furthermore, the trial judge
decided the suppression issue in favor of the Commonwealth. We
have decided in the past that such objections, when raised on
appeal, are moot when the trial judge considered and denied a
motion to suppress on its merits. Neal v. Commonwealth, 27 Va.
App. 233, 236 n.1, 498 S.E.2d 422, 424 n.1 (1998). Therefore,
we will consider the issue on its merits.
- 3 - III.
Williams contends that the trial judge erred in ruling the
officer had reasonable suspicion to stop and detain him. The
Commonwealth argues that the warrantless seizure of Williams
lawfully flowed from the officer's right to detain him at the
car.
Although a police officer may not routinely search a
passenger simply by virtue of the passenger's occupancy in a
vehicle, United States v. De Rie, 332 U.S. 581, 587 (1948), "an
officer making a traffic stop may order passengers to get out of
the car pending completion of the stop." Maryland v. Wilson,
519 U.S. 408, 415 (1997). In Wilson, the Supreme Court did not
describe the officer's order to the passenger as a seizure but
rather observed that once the car is stopped "the additional
intrusion on the passenger is minimal." Id. (emphasis added).
Indeed, the Court "express[ed] no opinion" on the issue whether
"an officer may forcibly detain a passenger for the entire
duration of the stop." Id. at 415 n.3. Although the United
States Supreme Court has not so held, "this Court has previously
held that police officers may also detain passengers beside an
automobile until the completion of a lawful traffic stop."
Harris v. Commonwealth, 27 Va. App. 554, 562, 500 S.E.2d 257,
261 (1998) (citing Hatcher v. Commonwealth, 14 Va. App. 487,
491-92, 419 S.E.2d 256, 257 (1992)). The record in this case
clearly establishes that the officer did not detain Williams at
- 4 - the car. We, therefore, do not decide this case upon the
principles announced in Harris and Hatcher.
The Fourth Amendment to the Constitution protects "[t]he
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures
. . . ." A seizure without a warrant is per se unreasonable,
unless it falls within recognized exceptions. Crosby v.
Commonwealth, 6 Va. App. 193, 197, 367 S.E.2d 730, 733 (1988).
In Bethea v. Commonwealth, 245 Va. 416, 429 S.E.2d 211 (1993),
the Supreme Court held that when an officer establishes
"'specific and articulable facts' which show that [the officer]
was reasonably concerned for his safety [during a valid
automobile stop for a traffic violation] and believed that [the
passenger] might have had access to weapons with which to
assault him," the ensuing detention is reasonable and
permissible under the Fourth Amendment. Id. at 420, 429 S.E.2d
at 211.
"When examining the officer's reasons for stopping a
person, we examine the objective reasonableness of the officer's
behavior rather than the officer's subjective belief that the
conduct indicates criminal activity." Riley v. Commonwealth, 13
Va. App. 494, 497, 412 S.E.2d 724
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements Argued at Richmond, Virginia
TRACY LAMONT WILLIAMS MEMORANDUM OPINION * BY v. Record No. 1827-00-3 JUDGE JAMES W. BENTON, JR. JULY 24, 2001 COMMONWEALTH OF VIRGINIA AND CITY OF DANVILLE
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge
S. Jane Chittom, Appellate Defender (Public Defender Commission, on briefs), for appellant.
Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General; William H. Fuller, III, Commonwealth's Attorney; James C. Martin, Assistant Commonwealth's Attorney, on briefs), for appellees.
Tracy Lamont Williams appeals his convictions for three
felonies and two misdemeanors on the ground that the trial judge
improperly admitted evidence obtained through an illegal search
and seizure. He also contends the evidence against him was
insufficient to justify a conviction for one of the
misdemeanors. We affirm the convictions, but we remand the case
for clarification of the sentencing order.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.
The grand jury indicted Williams for the felonies of
possession of cocaine, possession of a firearm while possessing
cocaine, and possession of a firearm after conviction of a
felony. In addition, warrants charged Williams with
misdemeanors of attempting to impede a law enforcement officer
and brandishing a firearm.
The evidence proved that Officer Samuel Bray was sitting in
his patrol vehicle when he saw a white Chrysler, which he had
stopped two weeks earlier while it was being driven by a person
with a suspended license. The officer noticed that the driver
appeared to be the same person, and he activated his lights.
After the car stopped and the officer exited his vehicle, the car,
which contained two occupants, sped away.
The officer pursued the car, saw it stop, and saw the driver
and passenger run into the woods. As the two men ran in the same
direction, the officer chased them and gained on Williams, the
passenger. Williams looked back at the officer, brought his hands
"in front of him towards his waist, and then he fell to the
ground." He lay face down with his hands under him at his waist.
The officer testified that he stopped his pursuit of the driver
because he "was in fear of [his] safety" and "was not going to
turn [his] back on" Williams.
The officer twice commanded Williams to show him his hands.
Williams did not comply. When the officer grabbed Williams'
- 2 - right arm, Williams pulled his left hand over his left shoulder.
He was holding a gun with the muzzle pointed at the officer.
The officer lay on Williams and attempted to seize the handgun.
Eventually, the officer used a chemical spray to subdue
Williams. After handcuffing Williams, the officer searched him
and found a razor blade with cocaine residue on it.
The trial judge ruled that no Fourth Amendment violation
occurred and denied the motion to suppress. At the conclusion
of all the evidence, he convicted Williams on all charges.
II.
The Commonwealth first contends that Code § 19.2-266.2 bars
Williams' challenge to the admission of the evidence against
him. The statute requires that motions seeking to suppress
evidence on Fourth Amendment grounds be made in writing seven
days before trial. Williams, however, filed his motion four
days before the suppression hearing and his trial.
The Commonwealth did not object at the hearing or at trial
to the timeliness of the motion. Furthermore, the trial judge
decided the suppression issue in favor of the Commonwealth. We
have decided in the past that such objections, when raised on
appeal, are moot when the trial judge considered and denied a
motion to suppress on its merits. Neal v. Commonwealth, 27 Va.
App. 233, 236 n.1, 498 S.E.2d 422, 424 n.1 (1998). Therefore,
we will consider the issue on its merits.
- 3 - III.
Williams contends that the trial judge erred in ruling the
officer had reasonable suspicion to stop and detain him. The
Commonwealth argues that the warrantless seizure of Williams
lawfully flowed from the officer's right to detain him at the
car.
Although a police officer may not routinely search a
passenger simply by virtue of the passenger's occupancy in a
vehicle, United States v. De Rie, 332 U.S. 581, 587 (1948), "an
officer making a traffic stop may order passengers to get out of
the car pending completion of the stop." Maryland v. Wilson,
519 U.S. 408, 415 (1997). In Wilson, the Supreme Court did not
describe the officer's order to the passenger as a seizure but
rather observed that once the car is stopped "the additional
intrusion on the passenger is minimal." Id. (emphasis added).
Indeed, the Court "express[ed] no opinion" on the issue whether
"an officer may forcibly detain a passenger for the entire
duration of the stop." Id. at 415 n.3. Although the United
States Supreme Court has not so held, "this Court has previously
held that police officers may also detain passengers beside an
automobile until the completion of a lawful traffic stop."
Harris v. Commonwealth, 27 Va. App. 554, 562, 500 S.E.2d 257,
261 (1998) (citing Hatcher v. Commonwealth, 14 Va. App. 487,
491-92, 419 S.E.2d 256, 257 (1992)). The record in this case
clearly establishes that the officer did not detain Williams at
- 4 - the car. We, therefore, do not decide this case upon the
principles announced in Harris and Hatcher.
The Fourth Amendment to the Constitution protects "[t]he
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures
. . . ." A seizure without a warrant is per se unreasonable,
unless it falls within recognized exceptions. Crosby v.
Commonwealth, 6 Va. App. 193, 197, 367 S.E.2d 730, 733 (1988).
In Bethea v. Commonwealth, 245 Va. 416, 429 S.E.2d 211 (1993),
the Supreme Court held that when an officer establishes
"'specific and articulable facts' which show that [the officer]
was reasonably concerned for his safety [during a valid
automobile stop for a traffic violation] and believed that [the
passenger] might have had access to weapons with which to
assault him," the ensuing detention is reasonable and
permissible under the Fourth Amendment. Id. at 420, 429 S.E.2d
at 211.
"When examining the officer's reasons for stopping a
person, we examine the objective reasonableness of the officer's
behavior rather than the officer's subjective belief that the
conduct indicates criminal activity." Riley v. Commonwealth, 13
Va. App. 494, 497, 412 S.E.2d 724, 725 (1992). The detention at
issue did not occur before Williams fell to the ground and the
officer commanded him to show his hands. See California v.
Hodari D., 499 U.S. 621, 626 (1991) (holding that even if
- 5 - pursuit by a police officer qualifies as a show of authority, a
seizure does not occur if the suspect is fleeing). We hold that
Williams was seized when the officer commanded him to show his
hands. See United States v. Mendenhall, 446 U.S. 544, 554
(1980) (holding that "a person has been 'seized' within the
meaning of the Fourth Amendment only if, in view of all the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave").
We view the evidence in the light most favorable to the
Commonwealth and must uphold the trial judge's findings of
historical fact unless plainly wrong. Harris, 27 Va. App. at
561, 500 S.E.2d at 260. We review de novo, however, the trial
judge's application of defined legal standards to particular
facts of a case. Id. The evidence proved that when the driver,
whom the officer reasonably believed was operating the car after
his license was suspended, ran from the car, Williams ran behind
the driver in the same direction. During the pursuit, Williams
ran slower than the driver, and had his empty hands at his side.
Williams turned, looked at the officer, put his hands at his
waist and fell to the ground with his hands concealed beneath
his body at his waist. The officer testified that he saw the
driver when Williams fell, and he wanted to pursue the driver
but feared for his safety if he did so because he "was not going
to turn [his] back on [Williams]." The officer and the two men
were then in woods off the roadway.
- 6 - The officer testified that he saw Williams' elbows moving
and "asked him could I see his hands." Williams' refusal to
show his hands placed the officer in the predicament of chasing
the driver while Williams was behind him and actively moving his
hands at his waist. The officer testified that Williams did not
comply and that he proceeded as follows:
I continued and repeatedly asked him, "Let me see you hands?" to ensure that there were no weapons. He would not comply. At that point, I bent down and grabbed his right arm, around where the elbow is, and attempted to pull that out from underneath him.
As in Bethea, the officer did merely what was necessary to
protect his own safety after executing a lawful traffic stop.
He could not reasonably pursue the driver while he also
reasonably believed Williams threatened his safety. Therefore,
the trial judge did not err in refusing to suppress the gun
Williams pointed at the officer.
IV.
Williams also contends that the evidence was insufficient
to prove he attempted to impede the officer in the performance
of his duties.
The trial judge convicted Williams on the warrant which
charged that Williams "by threats or force, knowingly
attempt[ed] to intimidate or impede a law enforcement officer,
lawfully engaged in his/her duties" in violation of City Code
§ 23-2. When an accused challenges the sufficiency of the
- 7 - evidence, we view the evidence in the light most favorable to
the Commonwealth, the prevailing party below, granting it all
reasonable inferences fairly deducible therefrom. Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
The evidence was sufficient for the trial judge to
reasonably find that Williams deliberately stopped running,
refused to obey the officer's order to show his hands,
physically resisted the officer's attempt to view his hands,
and, most importantly, pointed the gun at the officer during
this altercation. Williams' behavior constitutes more than a
mere refusal to comply with the officer's actions. We hold that
the evidence was sufficient to prove beyond a reasonable doubt
that Williams acted to deter the arrest of the driver and that
Williams threatened the officer with the gun when the officer
sought to determine whether he could safely pursue the driver.
V.
Although we affirm these convictions, we remand this case
for a clarification of the sentencing order. The Commonwealth
notes that the order contains clerical errors. First, the order
asserts that the judge convicted Williams under Code
§ 18.2-460(B) for the crime of resisting arrest and impeding a
police officer in the performance of his duties instead of City
Code § 23-2 as cited in the warrant. In addition, the order
does not clearly establish the length of the suspended portion
of the sentence. The judge's order recites that the judge was
- 8 - suspending the entire sentence for the felony of possessing
cocaine and the entire sentence for both misdemeanors, but the
order also required Williams to serve three months for those
convictions. We remand for a correction of these discrepancies.
For these reasons, we affirm the convictions in this case
but remand the case for correction of the sentencing order.
Affirmed and remanded.
- 9 -