COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia
CHRISTOPHER EMANUEL MOSLEY, S/K/A
CHRISTOPHER EMMANUEL MOSLEY
MEMORANDUM OPINION * BY
v. Record No. 0879-00-2 JUDGE LARRY G. ELDER
MAY 15, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF KING AND QUEEN COUNTY
Thomas B. Hoover, Judge
John C. Jones, Jr., for appellant.
Susan M. Harris, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Christopher Emanuel Mosley (appellant) was convicted in a
jury trial for the attempted capital murder of a police officer,
use of a firearm in the commission of that offense, possession
of cocaine, and possession of a firearm while in possession of
cocaine, pursuant to Code §§ 18.2-31, 18.2-53.1, 18.2-250 and
18.2-308.4, respectively. On appeal, he argues that the trial
court erroneously found the officer's non-consensual touching of
his pocket was not a pat-down search and that the officer lacked
the reasonable articulable suspicion necessary to support a
pat-down search of appellant. Therefore, he contends, the trial
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
court erroneously denied his motion to suppress. We hold the
evidence supported the trial court's finding of reasonable
articulable suspicion necessary for a pat-down search, and we
affirm appellant's convictions.
At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant's Fourth Amendment
rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380
S.E.2d 656, 659 (1989). On appeal, we consider the evidence
adduced at both the suppression hearing and the trial, DePriest
v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43
(1987), and we view the evidence in the light most favorable to
the prevailing party, here the Commonwealth, granting to its
evidence all reasonable inferences fairly deducible therefrom,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). "[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, 1663, 134 L. Ed. 2d
911 (1996)). However, we review de novo the trial court's
application of defined legal standards such as reasonable
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suspicion to the particular facts of the case. See Ornelas, 517
U.S. at 699, 116 S. Ct. at 1663.
"Fourth Amendment jurisprudence recognizes three categories
of police-citizen confrontations: (1) consensual encounters,
(2) brief, minimally intrusive investigatory detentions, based
upon specific, articulable facts, commonly referred to as Terry
stops, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968), and (3) highly intrusive arrests and
searches founded on probable cause." Wechsler v. Commonwealth,
20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995). In order to
justify a Terry stop, "an officer must have a 'reasonable and
articulable suspicion of criminal activity on the part of the
defendant . . . .'" Hatcher v. Commonwealth, 14 Va. App. 487,
490, 419 S.E.2d 256, 258 (1992) (quoting Commonwealth v.
Holloway, 9 Va. App. 11, 15, 384 S.E.2d 99, 101 (1989)). An
officer who develops reasonable suspicion that criminal activity
is occurring may stop a person "'in order to identify him, to
question him briefly, or to detain him briefly, while attempting
to obtain additional information'" in order to confirm or dispel
his suspicions. DePriest, 4 Va. App. at 585, 359 S.E.2d at 544
(quoting Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643,
1647, 84 L. Ed. 2d 705 (1985)).
Although an officer may not search a suspect simply because
he is effecting a Terry stop, the officer may conduct a pat-down
search for weapons if he "has reason to believe that the suspect
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is armed and dangerous." Adams v. Williams, 407 U.S. 143, 146,
92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972). Circumstances
"relevant in [this] analysis include characteristics of the area
surrounding the stop, the time of the stop, the specific conduct
of the suspect individual, the character of the offense under
suspicion, and the unique perspective of a police officer
trained and experienced in the detection of crime." Christian
v. Commonwealth, 33 Va. App. 704, 714, 536 S.E.2d 477, 482
(2000) (en banc) (footnote omitted) (recognizing in footnote
that "[t]he relationship between the distribution of controlled
substances . . . and the possession and use of dangerous weapons
is now well recognized" (quoting Logan v. Commonwealth, 19 Va.
App. 437, 445, 452 S.E.2d 364, 369 (1994) (en banc)).
Our review of the existence of reasonable suspicion
involves application of an objective rather than subjective
standard. See, e.g., Whren v. United States, 517 U.S. 806,
812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996).
Ordinarily, the fact "'that the officer does not have the state
of mind which is hypothecated by the reasons which provide the
legal justification for the officer's action does not invalidate
the action taken as long as [all] the circumstances, viewed
objectively, justify that action.'" Id. at 813, 116 S. Ct. at
1774 (quoting Scott v. United States, 436 U.S. 128, 138, 98
S. Ct. 1717, 1723, 56 L. Ed. 2d 168 (1978)).
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Even if we assume without deciding that Trooper E.D. Gray's
indirect request to appellant to exit the Ford Escort in which
appellant was a passenger so that Trooper Gray could search the
vehicle was improper because the request was not justified by
the lawful traffic stop, which had ended, or by the driver's
purported consent to search, 1 nevertheless, Trooper Gray had the
reasonable suspicion necessary to detain and question appellant
about the likely cigarette violation he observed when he first
stopped the vehicle and in fact testified that he intended to do
so later during the encounter.
Reasonable suspicion of the cigarette violation permitted
Trooper Gray to remove appellant from the car, at which time
additional facts provided him with reason to believe appellant
was armed. Although the stop occurred during daylight hours, it
occurred in the vicinity of the B.P. gas station, behind which
"a lot of people were . . . congregating" despite the presence
of "no loitering" signs. Trooper Gray had made several arrests
in that area for drug and weapons possession. Before stopping
1
An officer may require passengers to exit a lawfully
stopped vehicle for officer safety without particularized
suspicion of danger or wrongdoing. See Maryland v. Wilson, 519
U.S. 408, 414-15, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41 (1997).
However, under at least some circumstances, when the lawful stop
of the vehicle has been completed and the officer lacks
reasonable suspicion of any further criminal activity, a search
purportedly based on the driver's consent violates the Fourth
Amendment because a reasonable person in the driver's position
would not believe he is free to disregard the officer's request
and simply drive away. See Reittinger v. Commonwealth, 260 Va.
232, 236-37, 532 S.E.2d 25, 27-28 (2000).
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the Escort, Trooper Gray observed appellant run from the area
behind the station where people were congregating and enter the
passenger side of the vehicle. Although the stop itself
occurred a short distance from the gas station, Trooper Gray
activated his lights and turned his vehicle around on the
station's premises, presumably alerting all those congregating
there that the stop was about to occur. Just as appellant
exited the vehicle, the driver's brother arrived at the scene
and refused Trooper Gray's request to leave. Although Trooper
Gray had requested backup, Trooper McGee had not yet arrived at
the scene.
Trooper Gray then noticed that appellant's pants pockets
"were real bulgy," despite the fact that the pants themselves
were baggy, and he observed that "something sharp stuck out" of
one of them. Although appellant denied having a weapon, Trooper
Gray "wanted to make sure," based on the size of "the bulge
. . . and the sharpness of it," that "it was not a weapon that
would harm [him]." When he touched the bulge with the back of
his hand, he determined it was hard and sharp, and his fears
that appellant was armed were not dispelled. At that time,
Trooper Gray would have been justified in reaching into
appellant's pocket to determine the object was not a weapon.
However, he followed a less intrusive course, asking appellant
again whether he had any weapons or perhaps what was in his
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pocket, and appellant pulled several items out of the pocket
himself, including a pager and suspected crack cocaine.
These facts, viewed in their entirety, supported the trial
court's conclusion that the pat-down search which led to Trooper
Gray's discovery of the cocaine was justified by reasonable
suspicion to believe, first, that appellant was a minor in
possession of tobacco in violation of Code § 18.2-371.2 and,
second, that appellant was armed and dangerous.
Appellant's suggestion that the trial court based its
ruling on the faulty conclusion that the touching of appellant's
pocket was not a pat-down search is belied by the record.
Although the trial court said that what Trooper Gray did was
"not really even a pat-down," it also described his actions as
"a very limited pat-down" and said "[i]f you want to call it a
pat-down, okay." Appellant does not contest the trial court's
finding that he "voluntarily pulled the items out of [his]
pocket" after Trooper Gray questioned him about the pocket's
contents. Even if he did contest this finding, as set out
above, the reasonable suspicion which supported the pat-down
also supported a search of the contents of appellant's pocket in
order to dispel Trooper Gray's concern that appellant was, in
fact, carrying a weapon. Thus, the evidence supports the trial
court's denial of appellant's motion to suppress.
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For these reasons, we hold the trial court's denial of
appellant's motion to suppress was not erroneous, and we affirm
appellant's convictions.
Affirmed.
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