COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia
MARCUS ANTRONIEL LANGSTON
OPINION BY
v. Record No. 1008-97-2 JUDGE NELSON T. OVERTON
SEPTEMBER 8, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Marcus Antroniel Langston (defendant) appeals his
convictions of possession of cocaine with intent to distribute,
in violation of Code § 18.2-248, and simultaneous possession of
cocaine and a firearm, in violation of Code § 18.2-308.4. He
contends: (1) the stop and search of his person by police were
not supported by reasonable suspicion and, therefore, any
evidence obtained as a result thereof was inadmissible, (2) the
evidence was insufficient to support the conviction of cocaine
possession with intent to distribute or simultaneous possession
of cocaine and a firearm because the evidence was insufficient to
prove he possessed the cocaine or he intended to distribute it
and (3) the Commonwealth failed to prove the handgun he carried
was functional. Because we hold defendant's stop and search were
supported by reasonable suspicion and the evidence is sufficient
to support both charges, we affirm.
I. Facts
Police Officers Hererra, Albright and Peace were on
uniformed bicycle patrol in the 700 block of West Clay Street in
Richmond on November 1, 1996. This area was known to the police
as a drug "hot spot." The officers saw defendant standing with a
group of men in the yard of an abandoned house that was posted
with a "no trespassing" sign. The officers followed defendant
down an alley where they peppered him with questions regarding
his identity and destination. Finally, defendant stopped and
turned to speak with the police officers. When he did they
surrounded defendant; two officers stood in front of him and one
behind, using their bicycles to block his path.
Defendant told the officers he was going to a store to buy
food and then he was going to see his "girl." While they
questioned him, the officers noticed that defendant "touched" or
"patted" his right side. He wore a long coat which extended to
his knee so the officers could not see what he was touching.
When asked whether he was carrying drugs or firearms, defendant
responded in the negative. Fearing for their safety, Officer
Albright conducted a pat-down frisk of defendant's clothing and
found a handgun in the right side of his pants. They arrested
defendant, searched him incident to the arrest and handcuffed
him. They found one hundred and twenty-eight dollars in cash on
defendant but nothing else. A police van then arrived to
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transport defendant to a police station.
Prisoners are transported in the van's side compartment.
The compartment is a small space with metal walls and floor,
having only a hard wooden bench to sit upon. The police officer
who drove the van searched "every little nook and cranny" of the
compartment before defendant was placed within it. Officer
Herrera also searched the compartment. Defendant was the only
occupant of the compartment. He was transported to a police
station and removed from the van. Immediately after he was
removed, the driver saw a bag sitting on the floor of the
compartment. The bag contained .758 grams of cocaine wrapped in
six separate containers.
At trial, defendant's motion to suppress the evidence was
denied. The trial court first ruled that the encounter between
police and defendant was consensual, but then ruled the officers
conducted a Terry stop supported by reasonable suspicion because
defendant was on abandoned property and his conduct gave rise to
fear he possessed a gun. The trial court also ruled defendant
constructively possessed the cocaine because, even if not found
on his person, the circumstances proved he discarded the cocaine
while he was in the police van.
II. Police-Citizen Encounter
Defendant claims he did not consent to being stopped and
searched by police. He argues the investigative behavior of the
police amounted to a Terry stop. See Terry v. Ohio, 392 U.S. 1
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(1968). Analysis of this confrontation "is necessarily
imprecise, because it is designed to assess the coercive effect
of police conduct, taken as a whole, rather than to focus on
particular details of that conduct in isolation." Michigan v.
Chesternut, 486 U.S. 567, 573 (1988). However, in Wechsler v.
Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1955),
this Court summarized the three types of police-citizen
encounters:
Fourth Amendment jurisprudence recognizes
three categories of police-citizen
confrontations: (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.
(Internal quotes and citations omitted). We must determine what
kind of encounter took place and look to the legal foundation
which may have supported it.
The trial court's first ruling, that the encounter was
consensual, was erroneous. Police need not physically drag a
suspect to a halt before an encounter will be characterized as a
stop. See Brown v. Texas, 443 U.S. 47, 50 (1979) (holding
seizure occurred when police stopped car in front of suspect and
asked him to identify himself). The circumstances of the
encounter may indicate, even without physical restraint, a
suspect is not free to leave. In United States v. Mendenhall,
446 U.S. 544, 554 (1980) (citing Terry, 392 U.S. at 19 n.16), the
Supreme Court held as follows:
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Examples of circumstances that might indicate
a seizure, even where the person did not
attempt to leave, would be the threatening
presence of several officers, the display of
a weapon by an officer, some physical
touching of the person of the citizen, or the
use of language or tone of voice indicating
that compliance with the officer's request
might be compelled.
Our own Supreme Court of Virginia recently held in Parker v.
Commonwealth, 255 Va. 96, 103, 496 S.E.2d 47, 51 (1998), that a
suspect was seized for purposes of the Fourth Amendment in
circumstances even less intimidating than those at bar. In that
case, Mr. Parker was followed by an officer in a police cruiser.
When Mr. Parker entered private property, the officer followed
him. Finally, the officer stopped, exited his cruiser and began
to question Mr. Parker. These "acts constituted a show of
authority which restrained the defendant's liberty." Id.
In the instant matter, defendant was pursued by not one but
three police officers. They were close enough to him to carry on
a conversation. They harassed him with repetitive and redundant
questions. When defendant stopped to confront them, he was
surrounded. Because no reasonable person would have felt free to
leave in these circumstances, we hold defendant was seized.
III. Reasonable Suspicion
"In order to justify such a seizure, an officer must have a
`reasonable and articulable suspicion of criminal activity on the
part of the defendant.' . . . A general suspicion of some
criminal activity is enough, as long as the officer can, based on
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the circumstances before him . . . articulate a reasonable basis
for his suspicion." Hatcher v. Commonwealth, 14 Va. App. 487,
490, 419 S.E.2d 256, 258 (1992) (citations omitted). The
function of the appellate court is to reweigh de novo
determinations of reasonable suspicion and probable cause. See
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 and we give due weight to the inferences
drawn from those facts by resident judges and local law
enforcement officers." McGee v. Commonwealth, 25 Va. App. 193,
198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas, 517
U.S. at 699).
The police officers saw defendant standing and walking upon
property they knew was abandoned and posted "no trespassing."
Defendant's actions gave the officers probable cause to believe
he was committing a Class 1 misdemeanor in violation of Code
§ 18.2-119. Were the police so inclined they could have not only
stopped and searched defendant, but arrested him. See Jordan v.
Commonwealth, 207 Va. 591, 596, 151 S.E.2d 390, 394 (1966) ("[A]
police officer may arrest without a warrant when a misdemeanor is
committed in his presence, and . . . when a person without
authority of law goes upon the lands, buildings or premises of
another after having been forbidden to do so by a sign.").
Accord Sullivan v. Commonwealth, 210 Va. 201, 203, 169 S.E.2d
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577, 579 (1969).
Defendant argues reasonable suspicion or probable cause may
not be based upon a crime different from that which the police
are investigating. In other words, because defendant was seen
committing a trespass police had no reasonable suspicion to stop
and ask him who he was, where he was going and whether he carried
drugs or weapons. This argument is untenable. Courts have
consistently upheld convictions for crimes which did not flow
from the activity which formed the basis for the initial
reasonable suspicion of criminal activity. See, e.g., Ohio v.
Robinette, 519 U.S. 33 (1996) (defendant stopped for speeding was
arrested for possession of marijuana); New York v. Class, 475
U.S. 106 (1986) (defendant stopped for having a cracked
windshield on vehicle was convicted of firearm possession);
Jordan, 207 Va. at 596, 151 S.E.2d at 394 (affirming conviction
of grand larceny after defendant was seen trespassing and was
initially arrested for "vagrancy"); Jha v. Commonwealth, 18 Va.
App. 349, 444 S.E.2d 258 (1994) (defendant investigated for
trespassing and burglary was convicted of fraudulently obtaining
telephone services). When defendant was seen on abandoned
property posted with a "no trespassing" sign the police had
reasonable suspicion to stop and question defendant. Defendant's
actions of touching or patting his right side, coupled with his
presence in a high crime area, provided the reasonable suspicion
defendant was armed and dangerous. Therefore, the subsequent
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frisk for weapons was lawful. See Troncoso v. Commonwealth, 12
Va. App. 942, 945, 947, 407 S.E.2d 349, 350-51, 352 (1991)
(apprehension of dangerousness provided by defendant's "fidgety,"
nervous and sweating behavior). The trial court did not err by
refusing to suppress the evidence.
IV. Sufficiency of the Evidence
Defendant next contends the evidence was insufficient to
support either his conviction of possession of cocaine with
intent to distribute or possession of a firearm while
simultaneously possessing cocaine. When the sufficiency of the
evidence is challenged on appeal, we review the evidence in the
light most favorable to the Commonwealth and grant to it all
reasonable inferences fairly deducible therefrom. See
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). We may not disturb the convictions unless they are
plainly wrong or unsupported by the evidence. Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
A. Constructive Possession of Cocaine
The cocaine attributed to defendant was found in the
passenger compartment of the van in which defendant was
transported. The Commonwealth admits the police found no drugs
on defendant's person when they searched him incident to arrest.
Therefore, the Commonwealth's theory of the case relies upon
constructive possession. "To support a conviction based upon
constructive possession, 'the Commonwealth must point to evidence
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of acts, statements, or conduct of the accused or other facts or
circumstances which tend to show that the defendant was aware of
both the presence and character of the substance and that it was
subject to his dominion and control.'" Drew v. Commonwealth, 230
Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)).
"Although mere proximity to the drugs is insufficient to
establish possession, and occupancy of [a] vehicle does not give
rise to a presumption of possession, Code § 18.2-250, both are
factors which may be considered in determining whether a
defendant possessed drugs." Josephs v. Commonwealth, 10 Va. App.
87, 100, 390 S.E.2d 491, 498 (1990) (en banc). In the instant
matter, the compartment was searched immediately prior to
defendant's placement within it. He was the sole occupant for
the entire trip to the police station. He was taken out of the
compartment and the same officer who had previously searched it
noticed the bag on the floor.
"The Commonwealth is not required to prove that there is no
possibility that someone else may have planted, discarded,
abandoned or placed the drugs and paraphernalia in the
[vehicle]." Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d
877, 883 (1992) (en banc). The evidence, taken as a whole, was
sufficient to support the trial court's conclusion defendant
carried the bag into the van and attempted to discard it there
rather than risk discovery at a later time.
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B. Intent to Distribute
Defendant was not convicted of simple possession of cocaine,
but of possession of cocaine with intent to distribute. "Because
direct proof of intent is often impossible, it must be shown by
circumstantial evidence." Servis v. Commonwealth, 6 Va. App.
507, 524, 371 S.E.2d 156, 165 (1988). "Possession of a small
quantity creates an inference that the drug is for personal use."
White v. Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454
(1997) (en banc) (citations omitted). However, other
circumstances may indicate intent despite the paucity of drugs.
See Colbert v. Commonwealth, 219 Va. 1, 244 S.E.2d 748 (1978).
Defendant was found with a relatively large amount of cash on his
person. The trial court could have inferred this money was the
fruit of several drug transactions. See id. at 4, 244 S.E.2d at
749. The cocaine was packaged in several small bags or folds of
tinfoil, making it easier and more profitable to sell. See id.
Defendant was also found with a handgun, a common tool of the
drug-dealer's trade. See Dixon v. Commonwealth, 11 Va. App. 554,
557, 399 S.E.2d 831, 833 (1991). Finally, defendant told police
and the trial court he did not use drugs, a fact substantiated by
a lack of drug usage paraphernalia found on his person. The
circumstances taken as a whole provide sufficient evidence to
prove defendant possessed his cocaine with the intent to
distribute it.
C. Possession of a Firearm
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Defendant contends he cannot be found guilty of possession
of cocaine while simultaneously possessing a firearm unless the
Commonwealth proved the firearm was in working order. The case
of Timmons v. Commonwealth, 15 Va. App. 196, 201, 421 S.E.2d 894,
897 (1992), is directly on point. In Timmons, the defendant was
found with a pistol which lacked a clip or magazine with which to
hold ammunition. The pistol was, therefore, completely
inoperable. Yet this Court found the policy supporting enactment
of Code § 18.2-308.4 demanded the definition of "firearm" include
firearms that are not capable of firing a projectile at the time
of seizure.
Even if we were inclined to stray from this rule,
defendant's pistol provides infertile ground to do so. His
nine-millimeter pistol included a loaded clip of ammunition. A
police officer testified he had examined the weapon and it looked
to be in "good working condition." Further, defendant testified
he carried the weapon for protection. These facts sufficiently
proved the weapon was functional.
V. Conclusion
Because the police had reasonable suspicion defendant was
engaged in criminal activity and he was armed and dangerous, we
hold they did not violate defendant's Fourth Amendment liberties
when they stopped and searched him. The evidence thus obtained
is sufficient to support his convictions. Therefore, his
convictions are affirmed.
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Affirmed.
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