Jackson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia

LEONARD SHELTON JACKSON
OPINION BY
v. Record No. 2035-94-2 JUDGE MARVIN F. COLE
APRIL 30, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Maureen L. White, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.

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

Leonard Shelton Jackson appeals his conviction for

possessing cocaine with the intent to distribute. He contends

that the trial court erred in denying his motion to suppress the

cocaine. Finding no error, we affirm.

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

"the 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, cert.

denied, 449 U.S. 1017 (1980).
BACKGROUND

In the early hours of April 14, 1994, while working off-duty

in a high-crime area, Officer John Bandy "saw muzzle flash" and

"heard several shots [fired] from handguns." Bandy saw a group
of seven or eight people standing in the area where the shots

originated. A tan Oldsmobile was parked near the group. As

Bandy approached to investigate,
several subjects evidently saw [him] or
something, because they went to the
Oldsmobile, went inside the Oldsmobile. The
doors opened and so forth. The trunk opened.
The trunk was shut, the doors were shut, and
[Bandy] went up to the subjects[, who had
walked away from the car,] and started
patting down a couple of the subjects
[including appellant] for weapons.

Bandy found a pager on appellant, but discovered no weapon

on him. Bandy testified that he also "comb[ed] the area" and

found no weapon.

When Officer Stephanie Davis arrived in a marked cruiser,

Bandy told her what he had seen. Bandy told Davis "to go around

the corner [and wait] . . . , they're probably going to come back

to the car and get the guns back out." Bandy watched the area

and saw "[t]hree subjects g[e]t into the car." A fourth subject

stood on the corner as an apparent lookout. The car's lights

came on "as if the car was going to" leave. Bandy radioed for

Davis to approach the area, but when her police cruiser

approached, the lookout "holler[ed] something at the car,"

causing the three people in the car to get out of the car and run

behind an apartment building. Bandy again told Davis to park out

of sight; he told Davis that he would signal her when the

Oldsmobile left. After Davis left the area, the subjects entered

the vehicle and drove away. Davis followed the car, and Bandy

2
followed Davis in his personal vehicle. Davis stopped the car,

and appellant, who was driving, got out and began to walk toward

some apartments. Davis ordered appellant to get back in the car.

Appellant had no driver's license, and he "gave [Bandy]

permission to search the car." Bandy found no contraband in the

passenger area. Bandy then asked whether he could search the

trunk, and, although Bandy saw appellant open the trunk earlier,

appellant said the trunk was broken. Appellant told Bandy, "if

you can get into [the trunk] you can search it." Bandy was able

to open the trunk. Inside the trunk, Bandy found a jacket; in

the jacket, Davis found a bag containing cocaine. The three

occupants of the car were arrested.
The female passenger told Bandy that appellant "had some

more cocaine in his crotch area." The police recovered a pager

and $394 in currency from appellant. Bandy stated that his main

concern in stopping the car was "because of [the possibility

that] the gun [was] in the car." Bandy explained that he "was

acting on the original gunfire and him [appellant] going to the

vehicle shortly after the gunfire." Bandy also stated that he

searched the area of the gunshots.

Officer Davis testified that she "got a promiscuous shooting

call a little bit before there was a call [from Bandy] for

assistance, and [Bandy] needed a patrol unit to assist him on a

person or persons possibly still had a gun on them or in the

car." Davis corroborated Bandy's account of appellant and two

3
other subjects entering the car, seeing the police drive up,

getting out of the car, and returning to the car later. When

appellant drove away, Davis followed. When she activated her

emergency lights, appellant's "car sped away . . . and made a

right turn" and stopped. Davis "saw a lot of movement in the

car. Everyone in the car was bending down. I couldn't tell if

they were reaching or what they were doing. There was just a lot

of movement in the vehicle." Davis thought the occupants were

possibly "trying to hide some kind of weapon." Davis' primary

concern at the time was her "safety, the officer's safety around

me, because of the weapons." When appellant got out of the car

and began walking away, Davis pulled her weapon and told him to

wait in the car.
ANALYSIS

Appellant contends that the police unlawfully stopped his

car. According to appellant, because the earlier patdown of

appellant by Bandy yielded no contraband, the second stop of

appellant and his car was, at a minimum, an unlawful stop under

Terry v. Ohio, 392 U.S. 1 (1968), and possibly an unlawful

arrest.

"'If there are articulable facts supporting a reasonable

suspicion that a person has committed a criminal offense, that

person may be stopped in order to identify him, to question him

briefly, or to detain him briefly while attempting to obtain

additional information.'" Williams v. Commonwealth, 4 Va. App.

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53, 64, 354 S.E.2d 79, 85 (1987) (quoting Hayes v. Florida, 470

U.S. 811, 816 (1985)). "[W]hether [a] stop [i]s justified is

dependent upon whether 'the facts available to the officer at the

moment of the seizure or the search [would] "warrant a man of

reasonable caution in the belief" that the action was

appropriate.'" Quigley v. Commonwealth, 14 Va. App. 28, 32, 414

S.E.2d 851, 853-54 (1992) (quoting Terry v. Ohio, 392 U.S 1,

21-22 (1968)).
Bandy possessed probable cause to believe that a crime had

been committed when he saw and heard gunfire. E.g., Code

§§ 18.2-280 (willfully discharging firearm in public place, a

Class 4 felony or Class 1 misdemeanor, depending on the

location), 18.2-286 (shooting in or across a street, a Class 4

misdemeanor), 18.2-286.1 (shooting from vehicle, a Class 5

felony). Therefore, at a minimum, Bandy was justified in briefly

detaining the group of people to inquire about the crime and to

pat them down for weapons pursuant to Terry if he reasonably

feared for his safety. 392 U.S at 21. Appellant concedes that

the initial patdown was proper and lawful under Terry. However,

the critical issue is whether the stop of appellant's car, after

the initial unsuccessful patdown, was lawful, and, if so, upon

what basis.

When Bandy's initial patdown of the appellant and search of

the area around the vehicle failed to disclose a weapon, Bandy

left the immediate area to observe and investigate further.

5
Although he had seen several people enter and exit the car, Bandy

did not know who owned the car and whether the car was capable of

being driven. Bandy kept in contact with Davis in case his

observations revealed that the car was operational and that

someone intended to drive it out of the area while it contained a

hidden weapon. During his surveillance, Bandy acquired

additional information linking the car with the group, and,

specifically, the driver and probable owner. After the car drove

away, Bandy directed Davis to follow and stop it.
Davis, who received a dispatch of the shooting, saw

appellant and the two passengers act suspiciously when she

initially approached the Oldsmobile. Later, when the car left

the scene, she stopped it.

Because appellant was in the car, he asserts that the stop

was another Terry stop based on the same information possessed by

the police when they patted him down. However, the stop of the

car was based on newly acquired information, linking appellant

with possession of the car. Therefore, the stop of appellant's

car was justified as a Terry stop.
"A police officer may stop a motor vehicle,
without probable cause, for investigatory purposes
if [the officer] possesses a reasonable and
articulable suspicion 'that a motorist is
unlicensed or that an automobile is not
registered, or that either the vehicle or an
occupant is otherwise subject to seizure for
violation of law.'" Bulatko v. Commonwealth, 16
Va. App. 135, 136-37, 428 S.E.2d 306, 307 (1993)
(quoting Waugh v. Commonwealth, 12 Va. App. 620,
621-22, 405 S.E.2d 429, 429 (1991)). Although the
Commonwealth has the burden of proving that such

6
 an investigatory stop is lawful, the level of
suspicion required for an investigatory stop is
less demanding than the standard of probable
cause. Id. There are no bright line rules to
follow when determining whether a reasonable and
articulable suspicion exists to justify an
investigatory stop. Instead, courts must consider
"the totality of the circumstances--the whole
picture." United States v. Sokolow, 490 U.S. 1,
8, (1989). "In evaluating whether an
investigative detention is unreasonable, common
sense and ordinary human experience must govern
over rigid criteria." United States v. Sharpe,
470 U.S. 675, 685 (1985).

Hoye v. Commonwealth, 18 Va. App. 132, 134-35, 442 S.E.2d 404,

406 (1994). See also Delaware v. Prouse, 440 U.S. 648, 653-54

(1979); Terry, 392 U.S. at 21; Murphy v. Commonwealth, 9 Va. App.

139, 143, 384 S.E.2d 125, 127-28 (1989).

In Adams v. Williams, 407 U.S. 143 (1972), the Supreme Court

recognized the need for police officers to adopt an "intermediate

response" rather than ignore a dangerous situation and allow a

possible crime to go uninvestigated. Justice Rehnquist stated in

Adams:
The Fourth Amendment does not require a
policeman who lacks the precise level of
information necessary for probable cause to
arrest to simply shrug his shoulders and
allow a crime to occur or a criminal to
escape. On the contrary, Terry recognizes
that it may be the essence of good police
work to adopt an intermediate response. A
brief stop of a suspicious individual in
order to determine his identity or to
maintain the status quo momentarily while
obtaining more information, may be most
reasonable in light of the facts known to the
officer at the time.

Id. at 145-46 (citations omitted).

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 Successive investigatory Terry stops of a possible suspect

are not per se unlawful. See United States v. Ilazi, 730 F.2d

1120, 1125-26 (8th Cir. 1984).
To so hold would preclude law enforcement
officials from stopping a suspect a second
time whenever the first stop did not provide
probable cause, even though it tended to
confirm their suspicions of illegal activity.
We believe that to adopt a per se rule
prohibiting successive investigatory stops
would unduly hinder efforts to interdict
illegal [behavior].

Id. at 1126. See also State v. Aillon, 521 A.2d 555, 563 (Conn.

1987) (approving "second stop" that "ha[s] a different impetus,"

or is based on different facts); United States v. Peters, 10 F.3d

1517, 1523 (10th Cir. 1993) (holding successive stop illegal

absent additional, new basis for second stop).

In Jha v. Commonwealth, 18 Va. App. 349, 444 S.E.2d 258

(1994), we approved a second Terry stop of a suspect where police

officers obtained additional information that was properly

considered with the initial information. We explained that,

after the police find nothing illegal from a first Terry stop,
"they [a]re not required to ignore the facts that triggered it,

and thus, [a]re not precluded from using those facts in

establishing probable cause for [a] second detention." Jha, 18

Va. App. at 354, 444 S.E.2d at 260 (citing Ilazi, 730 F.2d at

1126).

Viewing the totality of the circumstances underlying the

stop of appellant's car, we consider the information possessed by

8
the police at the time of the initial patdown/Terry stop (the old

information) in conjunction with information acquired after the

patdown/Terry stop (the new information).

From the old information, the police knew that a crime had

been committed, that the weapon had not been recovered, and that

it might be concealed or hidden in the area or in the car. The

unsuccessful patdown established that appellant or others in the

group did not physically possess the weapon. Although Bandy saw

suspicious activity involving the car, no evidence established

who owned the car. Moreover, it was operational and mobile, and,

thus, capable of transporting a hidden weapon.
The warrantless search of an automobile, "where there are

both probable cause to believe the car contains evidence of crime

and exigent circumstances," is a well established exception to

the warrant requirement. McCary v. Commonwealth, 228 Va. 219,

227, 321 S.E.2d 637, 641 (1984).

Instead of forcibly entering the stationary car and

searching it, Bandy and Davis waited and observed. During their

observations, the officers gained additional information. They

saw three suspects enter the car while a lookout stationed

himself on the corner. When Davis approached the car, the

lookout signaled to the three occupants, who got out of the car.

Finally, Bandy and Davis saw a suspect from the group

(appellant) drive the vehicle from the area.

Therefore, the police gained additional evidence after the

9
unsuccessful patdown of appellant to justify the stop of the car.

They observed three people enter the parked car, saw one of the

group members take control of the car, and learned that the car

was operational, and, thus, had the ability to leave the area and

possibly transport a hidden weapon to another location.

The combined effect of the old and new information provided

Bandy and Davis with sufficient reasonable and articulable

suspicion that the occupants and/or vehicle were subject to

seizure.
After appellant stopped his car, got out, and tried to

leave, Davis had authority to maintain the status quo and order

him to remain there. "Once an officer has lawfully stopped a

suspect, he is 'authorized to take such steps as [are] reasonably

necessary to protect [his and others'] 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)

(quoting United States v. Hensley, 469 U.S. 221, 235 (1985)).
See also Terry, 392 U.S. at 27; United States v. Crittendon, 883

F.2d 326, 329 (4th Cir. 1989) (holding that the use of handcuffs

during an investigatory stop is permissible to maintain the

status quo or to protect the officer).

Because the stop was justified, appellant's consent was not

tainted. Accordingly, we find that the trial court did not err

in denying appellant's motion to suppress.

Affirmed.

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BENTON, J., dissenting.

When Officer Bandy first detained Leonard Shelton Jackson,

he discovered no evidence to suggest that Jackson might have been

involved in the discharge of a weapon. Because Officer Bandy did

not obtain evidence of criminal activity either during or after

the search, I would hold that the second detention violated

Jackson's fourth amendment right to be free from "'unreasonable

searches and seizures.'" Terry v. Ohio, 392 U.S. 1, 9

(1968)(quoting Elkins v. United States, 364 U.S. 206, 222
(1960)).
[I]f probable cause is not developed during a
Terry-type encounter, the officer must
release the suspect. This is the case
because when reasonable suspicion has been
dispelled or probable cause has not
developed, the conduct upon which the officer
originally based his suspicions has proved to
be an illusory ground for suspicion under the
particular circumstances, and thus, has been
exhausted. Being illusory, the ground no
longer reasonably supports a continuation of
the search. Absent a new and independent
basis for suspicion, the officer must halt
his investigation in accordance with Terry
and [United States v.] Place [, 462 U.S. 696
(1983)].

Of course, a second officer who is
unaware of the fruitless search conducted
earlier may initiate his own investigation
based on the same "suspicious" behavior that
was exhausted by the first officer's failed
investigation. The officer who performed the
original investigation, however, may not
release the suspect as required by Terry and
Place, wait until he has travelled down the
road a few miles, and then make a second
Terry stop based solely on the conduct that
has already proved to be illusory.

11
 Similarly, the officer cannot circumvent
Terry and Place by calling upon a different
officer to make the second intrusion in his
stead.

United States v. Peters, 10 F.3d 1517, 1522 (10th Cir. 1993).

The evidence proved that after Officer Bandy heard several

shots from a handgun he looked up a hill and saw seven or eight

people standing around. He "saw [a] muzzle flash in the area."

Officer Bandy heard the radio dispatcher broadcast a report of

gunfire, told the dispatcher he was in the area, and walked

toward the assembled group. As he approached, he saw several

individuals walk to an automobile, and he saw doors and the trunk

opened and closed. Two to five minutes passed before he reached

the individuals. He concluded that they went to the automobile

because "several subjects evidently saw [him] or something."

When Officer Bandy arrived at the automobile, he detained several

persons and "started patting down a couple of the subjects [,

including Jackson] for weapons." Several individuals walked

away, however, and were not detained or frisked.
When Officer Davis arrived in her vehicle, Officer Bandy

told her what he had observed and done. Officer Bandy had not

discovered a gun and did not arrest the individuals who he had

detained and frisked. Officer Davis drove away. Although

Officer Bandy walked away, he continued to watch Jackson and the

remaining individuals. He did not see a gun or hear any more

gunfire.

12
 After Officer Bandy walked away, he saw four individuals

return to the automobile. Three of the individuals entered the

automobile and one remained outside. Officer Davis then returned

and drove by the automobile. She saw the individuals leave the

automobile, go to another vehicle across the street, and lean on

it. Officer Davis again drove away.

When Officer Davis drove away, the individuals returned to

the automobile and drove away. Officer Bandy contacted Officer

Davis and asked her to stop the automobile. Officer Bandy

testified that he asked Officer Davis to stop the automobile

Jackson was driving because he suspected that a gun was in the

automobile. No gun was found in the automobile during the

search.
When viewed "objectively through the eyes of a reasonable

police officer," Murphy v. Commonwealth, 9 Va. App. 139, 144, 384

S.E.2d 125, 128 (1989), the circumstances that the officers

observed after Officer Bandy detained and frisked Jackson did not

amount to a reasonable suspicion that Jackson or anyone in the

automobile possessed a gun. That three people entered the car

and were capable of leaving the area by automobile and not by

foot did not contribute to reasonable suspicion that they

possessed a gun.

Furthermore, when Officer Bandy first detained and searched

Jackson, he knew that several individuals had quickly walked away

and left the area. The officer did not eliminate the likely

13
possibility that the persons who walked away had the gun. He

knew, however, that Jackson and the persons he frisked near the

automobile did not possess a gun.

The purpose of a Terry stop is to promptly dispel or confirm

an officer's suspicions. 392 U.S. at 30. Since "probable cause

[was] not developed, the conduct upon which [Officer Bandy]

originally based his suspicions . . . under the particular

circumstances, [was] exhausted." Peters, 10 F.3d at 1522.

Without a "new and independent basis for suspicion" Officer Bandy

could not continue the detention. Id. When Officer Bandy told

Officer Davis to stop the automobile, the officers conducted an

unlawful Terry stop.

The cases that have addressed the legality of successive

detentions have generally held that government agents may not

detain an individual a second time upon the same suspicions of

criminal activity. In Peters, an Arizona police officer stopped

a rental truck for erratic driving. 10 F.3d at 1519. After

checking the driver's and passenger's identification and

observing that they were extremely nervous, the officer concluded

that they possessed drugs and asked for consent to search the

truck. Failing to find any drugs during his search, the officer

allowed the driver to leave and relayed his suspicions to a

border patrol agent. The agent followed the truck and observed

it make an abrupt lane change. When the agent looked at the

occupants, he concluded that the driver and passenger were

14
nervous and stopped them on suspicion of carrying illegal

narcotics. Id. at 1519-20. The Court ruled that the second

Terry stop was unlawful because there was no "new and independent

basis" for a search. Id. at 1522.

United States v. Miranda-Garcia, 23 F.3d 1331 (8th Cir.

1994), involved similar circumstances. A police officer stopped

a rental truck after he saw it swerving on the interstate. He

issued the driver a warning ticket, inquired about weapons and

narcotics, and conducted a brief search of the truck with the

occupant's consent. After allowing the driver and passenger to

leave, the officer learned that the passenger had been arrested

on a firearms violation. The officer asked his dispatcher to

send a drug-trained dog and requested another officer to stop the

truck. Id. at 1333. Following a second search, the officer

discovered cocaine in the truck's cab. Id. at 1333-34.

The court held that the second detention violated the fourth

amendment because the agent had no reasonable suspicion of

criminal activity. Id. at 1336. The officer saw a traffic

violation and suspected criminal activity during the first

detention; however, the only additional information to justify

the second stop was the report of a previous firearm violation.

That information did not suggest criminal activity was ongoing,

and, therefore, the officer had no more reasonable suspicion

during the second detention than the first. Id. at 1335-36.

Relying principally upon United States v. Ilazi, 730 F.2d

15
1120 (8th Cir. 1984), and Jha v. Commonwealth, 18 Va. App. 349,

444 S.E.2d 258 (1994), the majority upholds the second detention

in this case. Those cases do not support the majority's

conclusion. In Ilazi, the defendant did not contest the finding

"that reasonable suspicion also justified the [second] stop . . .

but argue[d] instead that the second stop, occurring as it did

soon after the initial stop . . . constituted an arrest without

probable cause." Id. at 1125. The police discovered during the

first detention that the defendant was an alien carrying

identification papers with two different names, that defendant

was traveling with another alien who had no passport, and that

defendant had no luggage. The Court ruled that the first

detention "tended to confirm [the officers'] suspicions of

illegal activity" and held that the second detention did not

constitute an arrest without probable cause. Id. at 1126. That

holding is not relevant to the issue in this case.

Although in Jha this Court upheld a second detention of a

suspect within an hour of the first detention, the issue of

successive Terry detentions was not raised. Moreover, during the

intervening hour, the police observed additional suspicious

behavior that supported the second detention. The police first

detained Jha when they were investigating a call about a

suspicious person behind a store. The officer saw Jha outside

the rear door of a store with his hand raised as if attempting to

break into the store. After Jha ran, an officer detained him.

16
During a search of Jha and his vehicle, the officer found a

screwdriver-like device, a computer device, and a radio. After

the officer released Jha, the officer discovered a telephone

junction box open with wires exposed in the area behind the store

where Jha had been. Id. at 350-51, 444 S.E.2d at 259.

Other officers who heard the report followed Jha. Jha drove

away from the store and into a development. The officers

following Jha noticed that a vehicle's window had been smashed in

the area where Jha had been. The officer then approached Jha to

get identification and saw in plain view a device that was used

to tap into telephone lines. This Court ruled that Jha "was

detained only after the police found a van, with a broken window

and glass lying on the seat, in the area in which [Jha] had just

been walking." Id. at 354, 444 S.E.2d at 260. This additional

cause to believe Jha had committed another offense distinguishes

the detention of Jha from that of Jackson.

The reasoning and analysis in United States v. Morin, 665

F.2d 765 (5th Cir. 1982), is more pertinent to this case. A

police officer suspected Morin might be smuggling drugs and

detained him in the Dallas airport. After making inquiries, the

officer released Morin and allowed him to board his airplane.

The officer then notified officers in the Austin airport of his

suspicions. Relying solely on the Dallas officer's suspicions,

officers in Austin approached Morin and again detained him.

Acknowledging "[t]he coercion inherent in the successive stop

17
situation," the court ruled that "successive stops of an

individual based on the same information strongly indicate a

finding that an arrest has taken place." Id. at 769. The Court

found that in the absence of probable cause the second stop

amounted to an unlawful second fourth amendment seizure because

both stops were based on the same information. Id.

The record reveals that Officer Bandy ordered the car

stopped for the same reasons he conducted the first stop -- a

suspicion that someone may have possessed a gun. Applying the

analysis in the foregoing cases, I would hold that Officers Davis

and Bandy unlawfully conducted successive detentions based upon

the same information. The second detention was not predicated

upon any violation of law. The officers did not obtain any "new"

information. They relied on "old" information and detained

Jackson without a reasonable articulable suspicion of criminal

activity. Because a second detention of a person by a police

officer is "inherently more intrusive and coercive than the

first," Ilazi, 730 F.2d at 1126, I would hold that the trial
judge erred in refusing to suppress the evidence, and I would

reverse Jackson's conviction for possession of cocaine with

intent to distribute.

18