Buck v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Barrow * , Coleman and Willis
Argued at Alexandria, Virginia

DAVID F. BUCK

v. Record No. 0564-93-4 OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA MAY 2, 1995

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
James F. Hurd, Jr., for appellant.

Marla Lynn Graff, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.

The appellant was convicted in a jury trial of possessing

cocaine in violation of Code § 18.2-250. The sole issue on

appeal is whether the cocaine should have been suppressed because

the police officers seized it in violation of the Fourth

Amendment. Upon review, we affirm the trial court's ruling that

the search and seizure were lawful and its admission of the

legally seized cocaine into evidence.

I.

On November 10, 1992, at approximately 6:00 p.m., Officers

Dolan and Baine of the Arlington County Police Department were

patrolling a high crime area where drug sales frequently occur.

The officers were in "plain clothes" and patrolling in an

unmarked car. The officers observed the appellant standing on a
*
Judge Bernard G. Barrow participated in the hearing and
decision of this case and filed his dissent prior to his death.
street corner talking to a "group of guys." As the police car

passed, the group dispersed. The officers circled the block.

Upon returning, they saw the appellant, who had moved farther

down the block, talking to a second "group of guys." As the

police car passed, this group also dispersed. Upon circling and

returning a third time, the officers observed the appellant in

the back seat of a parked car bearing temporary license plates.

As the police car approached, the parked car began moving.

Officers Dolan and Baine followed the car. They did not observe

any activity or transactions that had the appearance of an

exchange of drugs or money in or about the car. Three or four

minutes later, the car returned and parked a block away from the

location where the appellant was first seen in the car. The

appellant got out of the car and walked up the sidewalk. The

police officers pulled alongside the appellant, and Officer Baine

exited the vehicle. He had his badge displayed on a chain around

his neck. Officer Baine announced that he was a police officer.

At that moment, the appellant quickly placed his closed fist to

his mouth and began to run. The officers did not see anything in

the appellant's hands or see him place anything in his mouth at

the time, although it appeared from his motion that he was

placing something in his mouth. Officer Baine pursued the

appellant and tackled him within ten yards of the initial

encounter. A scuffle ensued between the two of them. During the

scuffle, the appellant was making a chewing motion.

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 The appellant was subdued and forcibly returned to the

police car. There, he was restrained against the hood of the car

by Officers Dolan and Baine. Officer Burke arrived on the scene.

Officer Dolan held the appellant by his head and chin. Officer

Burke told the appellant that, if necessary, he (Officer Burke)

would "extract" from his mouth the object that appellant was

chewing. The appellant spit out one plastic packet that was

found to contain crack cocaine.
II.

Law enforcement officers do not violate the Fourth Amendment

merely by approaching an individual on the street, identifying

themselves, and asking the individual questions. Baldwin v.

Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647-48 (1992)

(citing Florida v. Royer, 460 U.S. 491, 497 (1983)). When

Officers Dolan and Baine approached the appellant, he was on the

sidewalk. Officer Baine had time only to announce that he was a

police officer before the appellant took flight. The officers

had not restrained the appellant, blocked his path of departure,

or commanded him to stop. By merely approaching the appellant

and identifying himself as a policeman, Baine effected no stop or

seizure. At that time, the Fourth Amendment had not been

implicated. This was merely a consensual encounter.

The United States Supreme Court has delineated two types of

seizures which implicate the Fourth Amendment, investigatory

stops and arrests. Terry v. Ohio, 392 U.S. 1, 15-16 (1968). To

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make a legal investigatory stop, an officer must possess a

reasonable, articulable suspicion that "criminal activity may be

afoot." United States v. Sokolow, 490 U.S. 1, 7 (1989). In

order for an investigatory stop to be reasonable, the officer

"must be able to point to specific articulable facts which, taken

together with rational inferences from those facts, reasonably

warrant that intrusion." Terry, 392 U.S. at 21. No "litmus

test" exists for determining reasonable suspicion. Harmon v.
Commonwealth, 15 Va. App. 440, 444-45, 425 S.E.2d 77, 79 (1992).

When determining if reasonable suspicion exists, courts must

consider that "[t]rained and experienced police officers . . .

may be able to perceive and articulate meaning in given conduct

which would be wholly innocent to the untrained observer."

Richards v. Commonwealth, 8 Va. App. 612, 616, 383 S.E.2d 268,

271 (1989) (citing United States v. Brignoni-Ponce, 422 U.S. 873,

884-85 (1975)). The officers' observations gave them sufficient

reasonable, articulable suspicion to detain appellant.

Officer Baine testified that he and Officer Dolan were

patrolling an area known as an open air drug market when they

observed the appellant standing on the corner. They observed him

get into a car as a passenger. They then followed the car as it

circled around the block, and three or four minutes later, the

officers observed the appellant exit the vehicle only one block

from where he originally was picked up. Officer Baine testified

that based on his experience as a drug officer, "[s]ome of the

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smarter drug dealers will put you in a car, drive it around the

block or get in your car to where the transaction is over."

After the officers approached the appellant and identified

themselves, appellant made a motion toward his mouth with his

fist and took flight. Although flight alone may not supply

sufficient reason to suspect a person of criminal activity, it

may otherwise color apparently innocent conduct and, under

appropriate circumstances, give rise to reasonable suspicion of

criminal activity. See Quigley v. Commonwealth, 14 Va. App. 28,

33, nn.5-6, 414 S.E.2d 851, 854, nn.5-6 (1992) (citing United

States v. Lane, 909 F.2d 895, 899, cert. denied, 498 U.S. 1093

(1991)).

When the appellant appeared to have put something in his

mouth and fled from the officers, after they had observed him

enter a car, circle the block, and then exit the car in an area

known as an open drug market, they had reason to believe

appellant had just bought or sold drugs. Therefore, the officers

were justified in stopping the appellant to investigate his

activity. Under those circumstances, the physical detention of

the appellant was reasonable and lawful. An officer, while

obeying the constitutional requirements of Terry, may stop,
question, and physically detain an individual, if necessary. See

Burgess v. Commonwealth, 14 Va. App. 1018, 1021-22, 421 S.E.2d

664, 666 (1992); see also United States v. Moore, 817 F.2d 1105,

1108 (4th Cir. 1987), cert. denied, 484 U.S. 965 (1987) (stating

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that a brief but complete restriction of liberty is valid under

Terry); United States v. Crittendon, 883 F.2d 326 (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).

After physically restraining the appellant, Officer Baine

observed that appellant was making a chewing motion. Based on

the officer's experience, he testified that chewing and

swallowing "is a common way of disposing of crack cocaine. It's

very common for people to eat cocaine whenever we approach them."

If an officer has reason to believe that a person is committing

a felony in his presence by possessing contraband or a controlled

substance, the officer has probable cause to arrest the

individual without a warrant. When an officer has probable cause

to arrest a person, the officer may search the person,

particularly where the evidence is of a highly evanescent nature.
See Poindexter v. Commonwealth, 16 Va. App. 730, 733 n.1, 432

S.E.2d 527, 529 n.1 (1993) (citing 2 Wayne R. Lafave, Search and
Seizure § 5.4(b) at 519-20 (2d ed. 1987); see also Cupp v.

Murphy, 412 U.S. 291 (1973) (approving of a limited search to

preserve "highly evanescent evidence," if an officer has probable

cause to arrest but does not arrest the suspect).

The facts support the finding that the police officers,

having observed the appellant's activity, reasonably believed

that the appellant was trying to eat and destroy drugs in his

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mouth. Therefore, they had probable cause to arrest the

appellant based on the objective, reasonable belief that he had

been or was committing a crime. Likewise, under the

circumstances indicating that the appellant was destroying the

evidence and creating a danger to his own health and safety, the

officers' use of physical force to cause him to expel the drugs

was reasonable and was conducted in a reasonable manner. See

Tipton v. Commonwealth, 18 Va. App. 370, 373, 444 S.E.2d 1, 2-3

(1994); see also Johnson v. Commonwealth, 213 Va. 102, 189 S.E.2d
678 (1972), cert. denied, 409 U.S. 1116 (1973).

We, therefore, affirm the decision of the trial court.

Affirmed.

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Barrow, J., dissenting.

The officers may have had the authority to detain the

defendant for further investigation, but they had no authority to

seize him by the head and chin and force him to spit out the

object in his mouth. In doing so, the officers violated the

defendant's right to be secure in his own person.

Our decision in this case is controlled by the Supreme

Court's decision in Harris v. Commonwealth, 241 Va. 146, 400

S.E.2d 191 (1991). In that case, the court held that a police

officer violated a defendant's rights under the Fourth Amendment

of the United States Constitution when the officer opened a film

canister found in the defendant's pocket. Id. at 148-49, 400

S.E.2d at 194.

Just as the officer in this case testified that, based on

his experience, people commonly swallow cocaine when the police

approach them, the officer in Harris testified that, based on his

experience, people keep narcotics and drugs in film canisters.
Id. at 154, 400 S.E.2d at 196. The Supreme Court ruled, however,

that "law-abiding citizens, on a daily basis, also use film

canisters to store film, . . . a legitimate use." Id. Likewise,

law-abiding citizens, on a daily basis, also place chewing gum,

food, medicine, toothpicks, and other legitimate objects in their

mouths.

The police did not see the defendant place anything in his

mouth. They only saw him place his closed fist to his mouth

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before he ran. Only after the police tackled the defendant and

placed handcuffs on him did they see him "making a chewing

gesture." They then forced him to open his mouth.

The defendant's earlier behavior gave the officers no reason

to suspect that he possessed cocaine. They had seen him twice

with two groups of men who had dispersed as the police car drove

past. The officers then saw him in the back seat of a parked

car. Finally, when one of the officers jumped out of the police

car and announced that he was a police officer, the defendant

ran. The defendant's behavior, while displaying a fear of or

alienation from the police, did not indicate that he possessed

cocaine or other drugs.
In my opinion, the police had no justification for holding

the defendant's head and chin and forcing him to reveal the

object he had in his mouth. Therefore, I would reverse the

defendant's conviction.

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