COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Richmond, Virginia
SHAWN EDWARD JONES
MEMORANDUM OPINION * BY
v. Record No. 0152-01-2 JUDGE ROBERT J. HUMPHREYS
OCTOBER 30, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
James A. Luke, Judge
Christopher B. Ackerman (James R. Traylor and
Associates, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Acting Attorney General,
on brief), for appellee.
Shawn Edward Jones appeals his conviction, after a bench
trial, of possession of cocaine with intent to distribute.
Jones argues that the trial court erroneously denied his
pretrial motion to suppress evidence resulting from an unlawful
search and seizure. We disagree and affirm the decision of the
trial court.
The evidence established that on October 2, 1999 Detective
Alan Kraft, of the Hopewell Police Department, and a fellow
officer were on bicycle patrol and were observing a home at 224
South 9th Street, due to a report of activity at the home
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
constituting a common nuisance. While observing the home, Kraft
saw a "Chevy Cavalier type" car drive up to the home. He then
saw two men get out of the car and enter the residence. After
three to five minutes, the same men left the residence, got back
in the car, and proceeded down the street. After having
traveled about one-half of a block, the driver of the car
stopped the car in the middle of an intersection. The car
remained stopped for approximately three to five minutes. At
that point, the officers approached the car and initiated a
traffic stop for blocking the intersection.
Kraft approached the driver's side of the car and began a
conversation with the driver, who was later determined to be
Jones. Kraft asked Jones for his driver's license and
registration. However, Jones was unable to produce any
identification other than his employee identification card for
Haynesville Correctional Center. Kraft asked him if he was
"okay." Jones replied that he was fine, that he had just been
"fixing his radio" when he stopped. At that point, Kraft
detected a "strong odor of alcohol[ic] beverage" about Jones'
person. He then asked Jones to "exit the vehicle and engage in
a conversation."
After Jones got out of the car, Kraft asked him "if he had
anything that would hurt [him] in any way, anything that would
stick [him], or stab [him], or poke [him] or anything,"
intending to initiate a standard pat-down. Jones stated, "No."
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He then began emptying his pockets on the roof of his car.
Jones put loose change, dollar bills and keys on the roof of the
car. Jones also removed a pill bottle from his pocket with his
right hand, but kept the bottle in his hand and continued to
place items on the roof of the car. Jones then shifted the pill
bottle from his right hand to his left hand. Kraft asked Jones
about the bottle and Jones replied "it was his medication."
Kraft immediately "grabbed [Jones'] left hand." Jones then
threw the bottle across the car toward the passenger, who had
also gotten out of the vehicle. The passenger, who was later
identified as Jones' father, caught the bottle and threw it
toward the curb of the street.
Kraft placed both men in handcuffs, and a fellow officer
retrieved the bottle. The officers opened the bottle and found
that it contained 2.53 grams of cocaine. Accordingly, Jones was
arrested and charged with possession of cocaine with intent to
distribute.
Prior to trial, Jones raised a motion to suppress the
evidence arguing that Officer Kraft unlawfully seized both the
pill bottle and Jones when he "put his hands on Jones' wrist."
Jones also contended that the officers lacked the requisite
probable cause to open the closed pill bottle without a warrant.
The trial court denied the motion, finding that the
officers initiated a lawful Terry stop and that Kraft only
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reached for Jones' hand due to Jones' own furtive movements.
The trial court also found that the officers lawfully opened the
pill bottle, holding that Jones abandoned it when he threw it
across the car. The trial court ultimately found Jones guilty
of possession of cocaine with intent to distribute.
"'[W]e are bound by the trial court's
findings of historical fact unless "plainly
wrong" or without evidence to support
them[,] and we give due weight to the
inferences drawn from those facts by
resident judges and local law enforcement
officers.' McGee v. Commonwealth, 25
Va. App. 193, 198, 487 S.E.2d 259, 261
(1997) (en banc) (citing Ornelas v. United
States, 517 U.S. 690, 699, 116 S. Ct. 1657,
1659, 134 L.Ed.2d 911 (1996)). However, we
review de novo the trial court's application
of defined legal standards such as probable
cause and reasonable suspicion to the
particular facts of the case. See Shears v.
Commonwealth, 23 Va. App. 394, 398, 477
S.E.2d 309, 311 (1996); see also Ornelas,
517 U.S. at 699, 116 S. Ct. at 1659."
McCloud v. Commonwealth, 35 Va. App. 276, 281, 544 S.E.2d 866,
868 (2001) (quoting Hayes v. Commonwealth, 29 Va. App. 647, 652,
514 S.E.2d 357, 359 (1999)).
Jones first argues the trial court erred in finding that
Officer Kraft lawfully seized the pill bottle and Jones when he
placed his hand on Jones' wrist. Importantly, Jones raises no
argument as to the validity of the initial traffic stop.
A lawful traffic stop, or "'[a] Terry investigation . . .
involves a police investigation "at close range," when the
officer remains particularly vulnerable in part because a full
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custodial arrest has not been effected, and the officer must
make a "quick decision as to how to protect himself and others
from possible danger."'" Servis v. Commonwealth, 6 Va. App.
507, 519, 371 S.E.2d 156, 162 (1988) (quoting Michigan v. Long,
463 U.S. 1032, 1053 (1983)). "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.'" Id. (quoting United States v. Hensley, 469 U.S. 221,
235 (1985)).
Although we recognize that "'police
procedures [during a Terry stop] can . . .
be so intrusive . . . as to trigger the full
protection of the Fourth and Fourteenth
Amendments,'" DePriest v. Commonwealth, 4
Va. App. 577, 586, 359 S.E.2d 540, 544
(1987) (quoting Hayes v. Florida, [470 U.S.
811, 815-16 (1985)]), cert. denied, 488 U.S.
985 (1988), there is no "'litmus-paper test
for distinguishing . . . when a seizure
exceeds the bounds of an investigative
stop.'" Id. (quoting [Florida v.] Royer,
460 U.S. [491,] 506 [(1983)]). The Supreme
Court has instructed that, in "'evaluating
whether an investigative detention is
unreasonable, common sense and ordinary
human experience must govern over rigid
criteria.'" Id. (quoting United States v.
Sharpe, [470 U.S. 675, 685 (1985)]). While
the "investigative methods employed should
be the least intrusive means reasonably
available to verify or dispel the officer's
suspicion in a short period of time," the
"scope of the intrusion permitted will vary
[with each case]." Royer, [460 U.S. at
500].
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Thomas v. Commonwealth, 16 Va. App. 851, 856-57, 434 S.E.2d 319,
323 (1993), aff'd en banc, 18 Va. App. 454, 444 S.E.2d 275
(1994). Indeed, we have held that "[b]rief, complete
deprivations of a suspect's liberty, including handcuffing, 'do
not convert a stop and frisk into an arrest so long as the
methods of restraint used are reasonable to the circumstances.'"
Id. at 857, 434 S.E.2d at 323 (quoting United States v.
Crittendon, 883 F.2d 326, 329 (4th Cir. 1989)).
We first note that Jones voluntarily emptied his pockets,
removing the pill bottle from his pocket and placing it in
Officer Kraft's plain view. At no point during the incident did
Kraft seize, or even physically touch, the pill bottle.
Instead, Kraft merely grabbed Jones by the wrist. We find that
Kraft's action in grabbing Jones' wrist did not serve to convert
the valid initial encounter into a new seizure or detention.
Instead, Kraft was briefly detaining and investigating an
individual who had committed an obvious traffic violation, who
was suspected of operating his vehicle under the influence of
alcohol, and who had recently left an area under surveillance as
a suspected common nuisance. Under such circumstances, Kraft's
action in "maintaining the status quo" was justified and
prudent, and his action of reaching for Jones' wrist, in light
of the circumstances, including Jones' actions in attempting to
conceal the pill bottle from Kraft's view, was not unreasonable.
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Jones next contends that the officers lacked the requisite
probable cause to open the pill bottle after he had thrown it to
his father, who then threw it to the ground. However, Jones
ignores the fact that these circumstances established that he
effectively abandoned the item before the officers retrieved it
and opened it. "It is settled, . . . that the right afforded to
persons by the Fourth Amendment — to be secure against
unreasonable searches and seizures of 'their' persons and
property — does not extend to abandoned premises or property."
Hawley v. Commonwealth, 206 Va. 479, 482, 144 S.E.2d 314, 316
(1965). "An intent to retain or abandon an expectation of
privacy is determined by objective standards and 'may be
inferred from words, actions and other objective facts.'" Hardy
v. Commonwealth, 17 Va. App. 677, 680, 440 S.E.2d 434, 436
(1994) (quoting Commonwealth v. Holloway, 9 Va. App. 11, 18, 384
S.E.2d 99, 103 (1989)).
On these facts, we find that Jones clearly intended to
abandon his expectation of privacy in the pill bottle when he
threw it toward his father, who then threw it toward the curb.
Thus, Jones' Fourth Amendment rights were not implicated when
the officers ultimately seized the bottle from the street and
opened it. Accordingly, we affirm the decision of the trial
court.
Affirmed.
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