Amy Michelle Nelson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia

AMY MICHELLE NELSON
OPINION
v. Record No. 1623-96-1 BY JUDGE JOSEPH E. BAKER
JUNE 3, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Charles P. Tench (Jones, Blechman, Woltz &
Kelly, P.C., on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Amy Michelle Nelson (appellant) appeals from her bench trial

conviction by the Circuit Court of the City of Newport News

(trial court) for possession of cocaine in violation of Code

§ 18.2-250. She contends that the cocaine was discovered during

an unlawful search of her person. The sole issue presented is

whether the trial court erred in refusing to suppress the cocaine

evidence discovered as a result of an anticipated pat-down search

of appellant. Finding no error, we affirm the judgment of the

trial court.

In reviewing a trial court's denial of a motion to suppress,

"[t]he burden is upon [the appellant] to show that this ruling,

when the evidence is considered most favorably to the

Commonwealth, constituted reversible error. Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). We
"review findings of historical fact only for clear error and

. . . give due weight to inferences drawn from those facts by

resident judges and local law enforcement officers." Ornelas v.

United States, 116 S. Ct., 1657, 1663 (1996). We review de novo

the ultimate questions of reasonable suspicion and probable

cause. See id.

Viewed accordingly, the record reveals that at approximately

10:34 p.m. on August 2, 1995, Officers Lee Ann McGraw and Peter

Edgette of the Newport News Police Department were dispatched to

208 Nina Court to investigate a possible burglary in progress at
1
210 Nina Court. When the officers arrived at 208 Nina Court,

the neighbor told them that she had observed a black female

wearing a black skirt and multi-colored top leaving 210 Nina

Court and walking toward Colony Road. The neighbor explained

that she suspected a burglary because the residents of 210 Nina

Court were not at home and she had never before seen this person

leaving the 210 Nina Court address.

Officers McGraw and Edgette, in separate vehicles, drove

toward Colony Road and observed appellant, a black female dressed

exactly as the neighbor described. Appellant was carrying an

eight-inch straightened piece of a coat hanger which she laid on

the curb as the officers approached her. She was agitated and

sweating profusely. In police uniforms, the officers approached

1
A neighbor who lived at 208 Nina Court had called in the
burglary information.

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appellant and asked for identification. She said that she had

none. Appellant told the officers that she was walking toward

her home in Courthouse Green; however, she was not traveling

toward the stated destination. Appellant's statements became

increasingly confusing and inconsistent as she attempted to

explain her actions to the officers.

After appellant made the confusing and inconsistent

statements, the officers decided to further investigate the

burglary complaint. Intending to place appellant in the police

patrol car as they completed their investigation, Officer McGraw

advised appellant to place her hands on the rear of the patrol

car. McGraw intended to conduct a pat-down search for weapons.

Edgette escorted appellant to the car where, instead of complying

with McGraw's direction, appellant moved her right hand to her

waistband and threw the complained of evidence onto the ground.

Appellant then kicked the item across the street. The officers

placed appellant in the car and retrieved the item, which proved

to be a silver metal stem that contained cocaine.
Thereafter, a white male wearing only underwear shorts

approached the scene. The man had a strong odor of alcohol about

him, and Officer Edgette concluded the man was intoxicated. The

man had no identification about his person. He stated that he

was the owner of 210 Nina Court, that no burglary had taken place

there, and that appellant had been playing cards with him.

At trial, appellant conceded that the officers had a right

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to "momentarily detain [her]." The record clearly supports their

action. See Terry v. Ohio, 392 U.S. 1 (1968) (a police officer

may in appropriate circumstances and in an appropriate manner

approach a person for purposes of investigating possible criminal

behavior even though there is no probable cause to make an

arrest). Assessing the totality of the circumstances, the record

shows that the officers had a particularized and objective basis

for suspecting that appellant may have been engaged in criminal

activity. See Leeth v. Commonwealth, 223 Va. 335, 340, 288

S.E.2d 475, 478 (1982). Once a suspect has been properly

detained, a police officer may conduct a limited pat-down search

for weapons if the officer reasonably believes that the suspect

may be armed. Lansdown v. Commonwealth, 226 Va. 204, 211, 308

S.E.2d 106, 111 (1983), cert. denied, 465 U.S. 1104 (1984).

The record establishes that the officers were investigating

a report that a burglary had taken place at the address from

which appellant had been seen exiting. Burglary is a felony that

clearly has the potential for or is accompanied by violence. See

Wayne R. LeFave, Search and Seizure, § 9.5(a) at 255 (3d ed.

1996). The offender is subject to a substantial penitentiary

term. See Code §§ 18.2-89, 18.2-10. The character of the

offense is a circumstance which the investigating officer may

consider when determining what safety precautions to take.

Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87

(1987); see also Terry, 392 U.S. at 28. Where burglary is the

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crime for which the suspect is lawfully detained, it is not

unreasonable for the investigating officer to conduct a pat-down

search to assure his or her safety as the investigation

continues. 2

Whether a Fourth Amendment violation has occurred turns on

an objective assessment of the officer's actions in light of the

facts and circumstances confronting him or her at the time and

not on the officer's actual state of mind at the time the

challenged action was taken. Maryland v. Macon, 472 U.S. 463,

470-71 (1985); see also Limonja v. Commonwealth, 8 Va. App. 532,

538, 383 S.E.2d 476, 480 (1989) (en banc), cert. denied, 495 U.S.

905 (1990). Here, the record reveals that the police received

information that a burglary had been or was occurring at 210 Nina

Court, and that a black female wearing a multi-colored blouse and

black skirt had just departed from the premises. Appellant met

the description given and was found near 210 Nina Court. These

factors may be considered in determining whether further

investigation was warranted. See Alabama v. White, 496 U.S. 325

(1990); Boyd v. Commonwealth, 12 Va. App. 179, 189-90, 402 S.E.2d

2
See Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984);
People v. Myles, 50 Cal. App. 3d 423, 430, 123 Cal. Rptr. 348, 352
(1975); Quevedo v. State, 554 So.2d 620 (Fla. Dist. Ct. App.
1989); State v. Burgess, 661 P.2d 344 (Idaho Ct. App. 1983);
People v. Solis, 482 N.E.2d 207 (Ill. App. Ct. 1985); State v.
Cobbs, 711 P.2d 900 (N.M. Ct. App. 1985); People v. Mack, 258
N.E.2d 703, 707 (N.Y. 1970), cert. denied, 400 U.S. 960 (1970);
State v. Fent, 562 P.2d 1239 (Or. Ct. App. 1977); State v. Carter,
707 P.2d 656, 660 (Utah Ct. App. 1985); State v. Harvey, 707 P.2d
146 (Wash. Ct. App. 1985).

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914, 920-21 (1991). Clearly, the officers had reasonable

suspicion of appellant's possible involvement in a burglary.

Once an officer has lawfully stopped a suspect, the officer

is authorized to take such steps as are reasonably necessary to

protect his or her personal safety and to maintain the status quo

during the course of the stop. Servis v. Commonwealth, 6 Va.

App. 507, 519, 371 S.E.2d 156, 162 (1988). We hold that the

pat-down search of appellant was reasonably necessary to protect

the officers' safety and to maintain the status quo during the

stop. Therefore, the search was not in violation of the Fourth

Amendment.
Accordingly, the judgment of the trial court is affirmed.

Affirmed.

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