Welshman v. Commonwealth

491 S.E.2d 294, 25 Va. App. 599, 1997 Va. App. LEXIS 591
CourtCourt of Appeals of Virginia
DecidedOctober 7, 1997
DocketRecord No. 0818-96-3
StatusPublished
Cited by2 cases

This text of 491 S.E.2d 294 (Welshman v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Welshman v. Commonwealth, 491 S.E.2d 294, 25 Va. App. 599, 1997 Va. App. LEXIS 591 (Va. Ct. App. 1997).

Opinions

ANNUNZIATA, Judge.

Following a bench trial, appellant, Gordon Wayne Welshman, Jr., was convicted of possession of cocaine with intent to distribute. On appeal, he contends that the trial court erred in denying his motion to suppress the cocaine and that the evidence is insufficient to support his conviction. We hold that appellant was unlawfully seized and that, as a consequence, the cocaine recovered as a result of his seizure should have been suppressed. Accordingly, we reverse his conviction.

I.

While conducting surveillance of the 2100 block of Main Street in the City of Lynchburg, Investigator Thomas observed two men conducting what he believed to be drug [602]*602transactions in front of the residence at 2110 Main Street. The general area was known to the officers as an open air drug market, and the residence at 2110 Main Street was a reputed crack house. Thomas relayed his observation and a description of the two suspects to members of a narcotics strike force who were waiting in a staging area nearby.

During his surveillance, Thomas observed appellant standing among a group of eight other individuals on the sidewalk in front of the residence. Thomas testified that appellant had been standing near the residence for at least fifteen minutes, but that he had not been involved in the apparent drug dealing. Thomas further stated that appellant had no contact with the two men Thomas suspected of drug dealing and that appellant had done nothing “except stand there.”

Officer Duff was one of four members of the strike force responding to Thomas’ call. Thomas informed Duff that the two suspects had joined the group of individuals standing in front of the residence. Duff testified that, in addition to the group on the sidewalk, approximately three other individuals were seated in a van parked at the curb and four or five others occupied the front porch area of the residence. Duff knew the area was an open air drug market, he knew shots had been fired there in the past, and, on a previous occasion, Duff had seen a pellet gun in a mailbox located only a few feet from the group on the sidewalk.

Duff testified that:

[d]ue to the nature and reputation of the .area and my experience with the area and, also, some of the people that I had observed there it was our decision to place all of the people that were on the sidewalk on the ground in a prone position momentarily for our safety and their safety____ We were going to secure the two target suspects and then make the scene secure, either by having people leave or making sure that there were no weapons with the people that decided to stay.

As he approached the scene, Duff ordered the individuals on the sidewalk, including appellant, to lie on the ground in a [603]*603prone position and extend their arms. Duff testified that the officers would not have pursued anyone who chose to leave the scene other than the two suspects. He acknowledged, however, that no one left or was told they could leave.

Appellant immediately assumed a prone position as Duff ordered, but he kept his hands underneath his torso. Duff approached appellant, again ordering him to extend his arms. Appellant complied as Duff grabbed his arm and rolled him onto his right side. In search of a weapon, Duff found no weapons on the ground under appellant. Still concerned about his safety and the possibility of finding a weapon, Duff conducted a pat down search of appellant’s waistline and of the left front of his pants. As a result of the search, Duff seized the cocaine used to support appellant’s conviction. The trial court denied appellant’s motion to suppress the cocaine, finding “that the police officers ... acted properly and had reasonable probability or reasonable basis to believe that the area involved was very dangerous; that it was a high crime area.”

II.

The Commonwealth concedes that appellant was seized within the meaning of the Fourth Amendment when Officer Duff compelled him to lie face down on the ground and extend his arms. The Commonwealth further concedes that the police officers had no reason to suspect that appellant had been engaged in criminal activity prior to his seizure. The issue on appeal is whether appellant’s detention was nevertheless justified under the Fourth Amendment.

Appellant contends that his seizure was unreasonable because the officers had no reason to suspect that he was engaged in criminal activity. The Commonwealth contends that a Fourth Amendment seizure may be justified on grounds other than probable cause or reasonable suspicion of criminal activity and that the officers’ actions in this case “were appropriate to protect both themselves and the bystanders from the dangers involved in a narcotics arrest.”

[604]*604Although we find few circumstances under which Fourth Amendment seizures are justified in the absence of probable cause or reasonable suspicion of criminal activity, we disagree with appellant’s contention that the absence of probable cause or reasonable suspicion of criminal activity renders a police-initiated detention unlawful per se. See Maryland v. Wilson, — U.S.-, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). In Wilson, the Supreme Court extended the rationale of Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (holding that a police officer may, as a matter of course, order the driver of a lawfully stopped car to exit his vehicle), and held that a police officer making a traffic stop may order a passenger to exit the car pending completion of the stop, even though the officer has no reason to suspect the passenger of criminal behavior. Wilson, — U.S. at-, 117 S.Ct. at 886.1 In Summers, the Supreme Court held that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” 452 U.S. at 705, 101 S.Ct. at 2595; see also Jones v. Commonwealth, 23 Va.App. 93, 98-99, 474 S.E.2d 825, 828 (1996). We further note that Fourth Amendment seizures, made in the absence of probable cause or reasonable suspicion of criminal activity, may be warranted under the community earetaking function of the police. See Commonwealth v. Waters, 20 Va.App. 285, 456 S.E.2d 527 (1995). In short, the absence of reasonable suspicion or probable cause to believe that appellant was engaged in criminal activity in the present case does not necessarily render appellant’s seizure unlawful.

In support of its contention that appellant’s seizure was lawful under the circumstances of this case, the Commonwealth relies, by analogy, on the seizures upheld in Wilson [605]*605and Summers. We find, however, that the Commonwealth’s analogy of the present case to Wilson and Summers is misplaced.

The touchstone of Fourth Amendment analysis is always “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Wilson, — U.S. at---, 117 S.Ct.

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Related

Welshman v. Commonwealth
502 S.E.2d 122 (Court of Appeals of Virginia, 1998)

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Bluebook (online)
491 S.E.2d 294, 25 Va. App. 599, 1997 Va. App. LEXIS 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welshman-v-commonwealth-vactapp-1997.