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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