COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Baker and Senior Judge Cole
Argued at Richmond, Virginia
RONALD ERIC JAMES, A/K/A
TIMOTHY JOHNSON
OPINION
v. Record No. 2367-94-2 BY JUDGE JOSEPH E. BAKER
JULY 30, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on briefs),
for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief)
for appellee.
Ronald Eric James (appellant), also known as Timothy
Johnson, appeals from his bench trial conviction by the Circuit
Court of the City of Richmond (trial court) for possession of
cocaine in violation of Code § 18.2-250. The sole issue
presented is whether the trial court erred in denying appellant's
motion to suppress evidence of the cocaine found on him during a
pat-down search. Finding no error, we affirm the judgment of the
trial court.
It is well established in Virginia that, on review of a
trial court's denial of a motion to suppress, the appellate
courts of this Commonwealth view the evidence in the light most
favorable to the trial court's determination. E.g., Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
denied, 449 U.S. 1017 (1980); Brown v. Commonwealth, 15 Va. App.
1, 7, 421 S.E.2d 877, 881 (1992). In light of Ornelas v. United
States, 517 U.S. ___ (1996), it appears that in certain cases a
deferential standard of review may no longer be appropriate. In
Ornelas, Chief Justice Rehnquist wrote that henceforth, "as a
general matter determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal." Id. While
generally calling for de novo review of reasonable suspicion and
probable cause determinations, the Supreme Court "hasten[ed]" to
add that a trial court's finding of "historical fact" should be
reviewed only for "clear error" and noted that a reviewing court
should "give due weight to inferences drawn from those
[historical] facts by resident judges and local law enforcement
officers." Id. Additionally, recognizing "that a police officer
may draw inferences based on his own experience in deciding
whether probable cause exists," id., the Supreme Court held that
"[a]n appeals court should give due weight to a trial court's
finding that [an] officer was credible and [his or her] inference
was reasonable." Id.
The record discloses that on May 27, 1994, Detective James P.
Foust (Foust) of the Richmond Police Department and a detective
named Burke (Burke) were looking for Charles Smyrie (Smyrie) in
order to execute a felony warrant. At approximately noon, Burke
drove into and stopped in a parking lot. A blue "Chevy Blazer,"
driven by Smyrie, pulled up next to Burke's vehicle. Smyrie was
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the "wanted person." Appellant was a passenger in the front seat
of Smyrie's vehicle.
Burke asked Smyrie to get out of the car and began talking
to him. Appellant addressed Burke, saying words to the effect
of, "[W]hat's going on, why are you stopping, can I get out
. . . ." Foust told appellant to "hold on a second," then asked
to talk to him. Appellant began "making gestures" with his
hands, leaning down to the right where Foust could see only one
of his hands and asked, "[W]hat's wrong?" Foust told appellant
to "remain quiet" and to put his hands on the dashboard. At
first, appellant failed to respond to that request. Later, he
placed his hands on the dashboard but left them there only for "a
few seconds," then removed them.
Appellant persisted in wanting to leave the car, asking,
"[H]ow come I can't get out?" Following that inquiry, Foust told
appellant he could get out of the car. To assure his personal
safety, Foust made a limited pat-down of appellant, during which
he felt a hard object which he removed from appellant's front
pocket. The object was a glass smoking device that contained
cocaine residue.
Appellant was arrested and indicted for possession of
cocaine. Appellant made a pretrial motion to suppress the
evidence.
The trial court denied the motion to suppress, ruling that
based upon "all the circumstances [confronting the officer]
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presented to this Court," Foust's conduct, including the pat-down
of appellant, was not unreasonable. The court also concluded
that it was reasonable for Foust to remove the item from
appellant's pocket "to determine whether it was something that
could be used to cause harm to the officer or cause the officer
concern for his safety."
The Fourth Amendment prohibits only unreasonable searches
and seizures. E.g., Desist v. United States, 394 U.S. 244, 254
n.23 (1969); Warren v. Commonwealth, 214 Va. 600, 602, 202 S.E.2d
885, 887 (1974). It is not unreasonable for a police officer to
conduct a limited pat-down search for weapons when the officer
can point to "specific and articulable facts" "which reasonably
lead[] him to conclude, in light of his experience, that
'criminal activity may be afoot' and that the suspect 'may be
armed and presently dangerous.'" Lansdown v. Commonwealth, 226
Va. 204, 209, 308 S.E.2d 106, 110 (1983), cert. denied, 465 U.S.
1104 (1984) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
"Reasonableness is judged from the perspective of a reasonable
officer on the scene allowing for the need of split-second
decisions and without regard to the officer's intent or
motivation." Scott v. Commonwealth, 20 Va. App. 725, 727, 460
S.E.2d 610, 612 (1995) (citing Graham v. Connor, 490 U.S. 386,
396-97 (1989)). An officer is entitled to view the circumstances
confronting him in light of his training and experience, Terry,
392 U.S. at 27, and he may consider any suspicious conduct of the
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suspected person. Williams v. Commonwealth, 4 Va. App. 53, 67,
354 S.E.2d 79, 86-87 (1987).
Here, the officers were arresting the driver of the vehicle
on a felony warrant. Appellant, who was an occupant of the
vehicle, was "somewhat jittery" when Foust asked him to keep his
hands on the dash. When appellant was unresponsive to Foust's
request to keep his hands in Foust's view, Foust did not know
whether appellant "was under the influence of anything" or
whether he was trying to reach to get something. Foust was
concerned that appellant might be reaching for "a weapon or
something like that in the car" and that appellant's hand
movements were an attempt to divert his attention. Appellant
appeared nervous and Foust "didn't know whether . . . [appellant]
had a weapon on him." Because, under these circumstances, a
reasonably prudent officer would be warranted in the belief that
his safety or that of others was in danger, Foust was justified
in conducting a pat-down of appellant. See Taylor v.
Commonwealth, 10 Va. App. 260, 391 S.E.2d 592 (1990).
To justify removal of an object from a person's clothing
during a search for weapons, "the officer [must] reasonably
believe [that] the object could be a weapon." Lansdown, 226 Va.
at 213, 308 S.E.2d at 112. "[I]t makes no difference that the
object removed . . . is not a weapon." Id. Here, the hard
object Foust removed from appellant's pocket during the pat-down
was about three inches long; Foust described it as being "about
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as big as your finger." It was not unreasonable for Foust to
believe that this object could have been a weapon. See id. (not
unreasonable for officer to believe that rectangular box felt in
shirt pocket could be a weapon); see also Williams, 4 Va. App. at
67, 354 S.E.2d at 87 (not unreasonable for officer to believe
that hard bulge felt in pocket, which was in fact a wad of rolled
up one hundred dollar bills, was a weapon). Therefore, Foust
acted properly in removing the object from appellant's pocket.
The facts reveal that appellant was not subjected to an
unreasonable search and seizure. Accordingly, the judgment of
the trial court is affirmed.
Affirmed.
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