COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1718-98-3 JUDGE DONALD W. LEMONS
FEBRUARY 23, 1999
JOSHUA ADAM WYATT
FROM THE CIRCUIT COURT OF PULASKI COUNTY
Colin R. Gibb, Judge
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Michael J. Barbour (Gilmer, Sadler, Ingram,
Sutherland & Hutton, on brief), for appellee.
Joshua Adam Wyatt was charged with possession of cocaine.
By order dated September 2, 1998, the Circuit Court of Pulaski
County granted Wyatt's motion to suppress the evidence found on
his person. The Commonwealth appealed and, for the reasons
stated below, we reverse and remand.
BACKGROUND
On August 8, 1997, during a routine patrol, Officer A.K.
Anderson of the Pulaski Police Department noticed a vehicle
without functioning license plate ("tag") lights. He stopped the
vehicle on the side of the road, and approached it from the rear.
He requested and was given a driver's license from the driver,
Joshua Adam Wyatt, and the vehicle registration from the
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116-010,
this opinion is not designated for publication.
passenger. The passenger told Officer Anderson that he was the
owner of the vehicle.
Anderson testified that when he initially stopped the
vehicle, he noticed an odor of alcoholic beverages inside the
car, but that he had not asked Wyatt to step out of the vehicle.
Anderson asked if either of the men had been drinking, and the
passenger responded that he had and "[t]hat's why he's [Wyatt's]
driving." Anderson then asked Wyatt if he had been drinking, and
Wyatt responded, "No sir. That's why I'm driving." Anderson
informed the men that he was going to check the license, and to
issue a warning to the driver for the defective "tag" light.
When he returned to his patrol car, Anderson could not find his
warning ticket book. Anderson checked the license and
registration and found both to be valid. While Anderson was in
his patrol car, Sergeant Eric Todd Montgomery of the Pulaski
Police Department arrived at the scene. Montgomery testified
that he stood outside the passenger window and shined a
flashlight at the passenger.
Anderson then returned to the car at the driver's side.
Anderson and Montgomery testified that they did not have any
conversation at this time. Anderson testified that it was his
intention at that time to "go back up to the driver and release
him." However, when Anderson arrived at the window, he noticed
that Wyatt was breathing very rapidly. While still holding
Wyatt's license and the vehicle registration, Anderson asked
Wyatt to step out of the car.
- 2 -
At Anderson's request, Wyatt stepped out of the vehicle, and
Anderson stepped back a few feet. As Wyatt walked toward
Anderson, Anderson noticed "a faint odor associated with an
alcoholic beverage about his person." Anderson again asked Wyatt
if he had been drinking. Wyatt stated that he had a "sip of
beer" earlier in the evening. Anderson testified that he was
going to administer a field sobriety test to Wyatt, when he
noticed that Wyatt was holding his right hand in the pocket of
his blue jeans. Anderson asked Wyatt to take his hand out of his
pocket, and Wyatt complied. Anderson explained to Wyatt that he
had asked Wyatt to remove his hand from his pocket because
Anderson did not know if Wyatt had any weapons on his person.
Anderson then asked Wyatt if he was carrying any weapons. Wyatt
responded, "No, sir."
Anderson then asked Wyatt for permission to pat him down for
any weapons. Wyatt gave his permission for Anderson to pat him
down. As Anderson moved his hand toward Wyatt to begin the pat
down, Wyatt brought his hands down in front of him, and stated,
"I do have a pocket knife here." Anderson stated, "Don't pull
out no knife at me," and Wyatt pulled his hand back. Anderson
felt the outside of the right pocket, in which he felt what he
believed to be a very small pocketknife.
Anderson then patted the left front pants pocket, and felt
what he believed to be "about a six to eight inches in length
metal object," and asked Wyatt what it was. Wyatt stuck his left
hand into his pocket, and Anderson immediately placed a loose
grasp on his wrist, and asked him, "Do you have a weapon on you?"
- 3 -
Wyatt responded that he did not. Anderson testified that Wyatt
began breathing rapidly again, and Anderson asked, "Do you have
any drugs on you?" At that point, Wyatt pulled his wrist away
from Anderson and fled. Wyatt was taken to the ground, and began
yelling, "Don't hurt me. Don't hurt me. I don't have no [sic]
weapons. I've got roaches." Anderson understood "roaches" to be
a street term for hand-rolled marijuana cigarettes. After
searching Wyatt, Anderson found the "roaches," a cigarette pack
with a small amount of cocaine and some marijuana inside. The
hard metal item that Anderson felt was a large pair of tweezers
of the type that might be used to smoke marijuana.
Wyatt moved to suppress the evidence recovered in the
traffic stop arguing that because Anderson held Wyatt's license
and the vehicle registration after he had determined that he was
only going to issue Wyatt a warning for a traffic violation,
Wyatt was illegally detained. Wyatt argued that because he was
held beyond the time necessary to issue him a warning, unless
Anderson had objectively reasonable suspicion that Wyatt was
engaged in some other type of unlawful conduct, Anderson had no
right to detain him. Finding that Wyatt had been initially
lawfully detained, but that the lawful detention had ended prior
to Anderson asking him to exit his vehicle, the trial court
granted Wyatt's motion to suppress the evidence found on his
person.
On appeal, the Commonwealth argues that the trial court
erred in concluding that "the lawful detention had ended prior to
Officer Anderson asking [Wyatt] to exit the vehicle" and that
- 4 -
Anderson could no longer order Wyatt out of the car, citing
Pennsylvania v. Mimms, 434 U.S. 106 (1977). The Commonwealth
also argues that the trial court erred in concluding that, at the
time Anderson asked Wyatt to exit the vehicle, Anderson did not
have reasonable articulable suspicion to believe that Wyatt was
engaged in criminal activity other than that which prompted the
stop.
The Commonwealth may seek an interlocutory appeal of a trial
court's order which suppresses evidence on the grounds that it
has been obtained in violation of the provisions of the Fourth,
Fifth or Sixth Amendments to the Constitution of the United
States or Article I, Sections 8, 10 or 11 of the Constitution of
Virginia. See Code § 19.2-398. In reviewing the ruling of a
trial court on a motion to suppress, we will "consider the
evidence in the light most favorable to the prevailing party
below, and the decision will not be disturbed unless it is
plainly wrong or without evidence to support it." Commonwealth
v. Thomas, 23 Va. App. 598, 609, 478 S.E.2d 715, 720 (1996)
(citations omitted).
OFFICER'S ABILITY TO ORDER DEFENDANT
OUT OF THE VEHICLE
Wyatt does not contest the validity of the initial stop of
the vehicle; rather, he maintains that Anderson's intention to
give him a warning and to let him go concluded the stop.
Anderson did not find any outstanding warrants on file for
Wyatt's arrest, and the driver's license and vehicle registration
were valid. Having determined that he was only going to issue
Wyatt a verbal warning for the traffic violation, Anderson
- 5 -
returned to the vehicle. Anderson had not returned Wyatt's
driver's license and the vehicle registration. Anderson
testified that when he approached the car, he again smelled the
odor of alcoholic beverages, and noticed that Wyatt was breathing
very rapidly. Anderson became concerned that Wyatt may have been
drinking, despite his earlier statement that he had not. He had
not given Wyatt a warning for the defective tag light at the time
he asked him to step out of the car, nor had he told Wyatt that
he was free to leave.
A police officer making a routine traffic stop may order a
driver or passenger out of the car for safety reasons, even if
the officer has no reason to suspect either person of criminal
activity. Maryland v. Wilson, 519 U.S. 408 (1997); Mimms, 434
U.S. 106; Welshman v. Commonwealth, 28 Va. App. 20, 32, 502
S.E.2d 122, 128 (1998).
In Mimms, the Court stated that the safety considerations of
the officer making a valid traffic stop outweighed the personal
liberty interest of the driver implicated when he was ordered to
step out of the car. Mimms, 434 U.S. at 110. The Court
explained,
[w]e think it too plain for argument that the
State's proffered justification "the safety
of the officer" is both legitimate and
weighty. Certainly it would be unreasonable
to require that police officers take
unnecessary risks in the performance of their
duties. And we have specifically recognized
the inordinate risk confronting an officer as
he approaches a person seated in an
automobile. According to one study,
approximately 30% of police shootings
occurred when a police officer approached a
suspect seated in an automobile. We are
aware that not all these assaults occur when
- 6 -
issuing traffic summons, but we have before
expressly declined to accept the argument
that traffic violations necessarily involve
less danger to officers than other types of
confrontations. Indeed, it appears that a
significant percentage of murders of police
officers occurs when the officers are making
traffic stops.
Id. (citations omitted).
When compared to the police officer's "important interest,"
the Court held that the driver's personal liberty interest in
being asked to step out of the car was "de minimis." Id. at 111.
Therefore, the Court held, "[w]hat is at most a mere
inconvenience cannot prevail when balanced against legitimate
concerns for the officer's safety." Id.
In Wilson, the United States Supreme Court extended its
holding in Mimms to allow an officer to order passengers out of
the car during a traffic stop. Wilson, 519 U.S. at 410. The
Court reasoned,
[d]anger to an officer from a traffic stop is
likely to be greater when there are
passengers in addition to the driver in the
stopped car. While there is not the same
basis for ordering the passengers out of the
car as there is for ordering the driver out,
the additional intrusion on the passenger is
minimal. We therefore hold that an officer
making a traffic stop may order passengers to
get out of the car pending completion of the
stop.
Id. at 415. Based upon the holdings of both Mimms and Wilson, we
recognize the well-established rule that an officer may order any
occupant out of a vehicle pursuant to a valid traffic stop.
Recently, we confronted the issue of when a stop is
completed in Commonwealth v. Rice, 28 Va. App. 374, 504 S.E.2d
877 (1998). In Rice, a Commonwealth's appeal, we reversed the
- 7 -
trial court's decision to grant the defendant's motion to
suppress evidence obtained from a search of his person following
a valid traffic stop. Rice was stopped because his left
headlight was out. The officer asked for and was given Rice's
driver's license. After checking his license and finding no
outstanding warrants for his arrest, the officer walked back to
Rice's car. While still holding Rice's license, the officer
asked Rice if he could search his vehicle and person. Rice
questioned the officer's basis for the search. The officer
agreed that he did not have probable cause to search, and told
Rice that he would need Rice's permission. When the officer
asked again if he could search Rice's vehicle and person, Rice
consented. A second officer found brass knuckles in Rice's
pocket. Rice was charged with carrying a concealed weapon after
having previously been convicted of a felony, a violation of Code
§ 18.2-308.2.
While Rice did not contest the validity of his initial
detention, he argued that because the officer retained Rice's
driver's license he was illegally detained and any evidence
seized pursuant to the search was "fruit of the poisonous tree."
The Commonwealth disagreed, arguing that the stop was based on
reasonable articulable suspicion, that "the traffic stop had not
concluded at the time consent to search was requested," and that
Rice voluntarily gave his consent. We agreed with the
Commonwealth that the detention had not concluded at the time of
the officer's request, noting that at the time the officer
returned to Rice's vehicle, he had "several options, including
- 8 -
issuing a warning and allowing Rice to continue on his way,
issuing a summons for operating a motor vehicle with defective
equipment, or confiscating the registration card, license plates,
and any decals of the vehicle . . . ." Id. at 377, 504 S.E.2d at
879. Our holding in Rice with respect to the duration of the
stop is similar to the case now before us. Here, Anderson
stopped a vehicle driven by Wyatt for a traffic violation, a
defective tag light. Anderson noticed an odor of alcoholic
beverages emanating from the inside of the vehicle. He asked
Wyatt and the passenger if either had been drinking. The
passenger stated that he had been drinking, and both stated that
Wyatt had not and was the "designated driver." Anderson told
Wyatt that he was going to write him a warning ticket. Anderson
then returned to his vehicle to check Wyatt's license and the
vehicle registration, which were both valid. Anderson also
discovered that he did not have his warning ticket book with him.
Anderson walked back to Wyatt's window to give him a verbal
warning and to tell him that he was free to leave, when he
noticed that Wyatt appeared to be breathing very rapidly.
Anderson became suspicious that Wyatt had been drinking, and he
again noticed the odor of alcohol inside the car. Without
returning Wyatt's license to him or telling him that he was free
to go, Anderson asked Wyatt to step out of the car. Once Wyatt
was out of the car, Anderson determined that Wyatt had been
drinking and upon further questioning, Wyatt revealed that he had
previously lied to the officer.
- 9 -
In granting Wyatt's motion to suppress, the trial court
reasoned, "[w]hen Officer Anderson returned to [Wyatt's] vehicle,
his right to further detain [him] ended unless he had an
objectively reasonable suspicion that the defendant was engaged
in criminal behavior so as to justify additional detention." As
we held in Rice, the stop had not concluded at the time Anderson
asked Wyatt to step out of the car.
Because we hold that Wyatt was lawfully detained pursuant to
a traffic stop at the time of Anderson's request, it is not
necessary for us to address whether the officer had reasonable
articulable suspicion to believe that Wyatt was engaged in
additional criminal activity. Pursuant to Mimms and its progeny,
including Wilson, Anderson was entitled to ask Wyatt to step out
of his car during the traffic stop. The trial court's order
suppressing the evidence is reversed, and the case is remanded to
the trial court for further proceedings consistent with this
opinion.
Reversed and remanded.
- 10 -