COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
CLIFTON MOORE, JR.
OPINION BY
v. Record No. 1922-96-1 JUDGE JERE M. H. WILLIS, JR.
JULY 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
E. Everett Bagnell, Judge
Patricia Atkins Cannon, Senior Assistant
Public Defender (Office of the Public
Defender, on brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Clifton Moore, Jr. contends (1) that the trial court erred
in denying his motion to suppress evidence and (2) that the
evidence was insufficient to support his convictions for a second
offense of possession of heroin with the intent to distribute and
conspiracy to possess heroin with the intent to distribute. We
affirm the convictions.
I.
On August 7, 1993, on an interstate highway bridge, Trooper
Taylor stopped a vehicle for speeding sixty-nine miles per hour
in a fifty-five mile per hour zone. Anthony Ellis was driving,
Moore was in the front passenger seat, and a man named Faison was
in the rear seat. No pedestrian walkway led off the bridge.
Ellis informed the trooper that he had neither the vehicle
registration nor a driver's license, and all three occupants
denied ownership of the vehicle. The trooper learned
subsequently that the vehicle belonged to Ellis' wife. Because
Ellis had no identification, the trooper took him to the police
cruiser. Faison and Moore remained in the car. At one point,
Ellis returned to the car, purportedly to get a cigarette.
Moore told the trooper that Ellis was not who he said he
was. Upon learning that Ellis had provided a false name and
Social Security number, the trooper determined that he would not
release Ellis on a summons. He arrested Ellis for forgery of a
summons and handcuffed him.
The trooper then asked Moore and Faison to step out of the
vehicle. Upon questioning, Faison and Moore acknowledged that
neither had a valid driver's license. The trooper observed that
Faison was unable to drive because he appeared to be under the
influence of something.
The trooper testified that he had "a bad feeling about" the
situation and was "trying to stall for time" until backup
arrived. Because Ellis was in custody and neither Moore nor
Faison could legally operate the vehicle, the trooper told Faison
and Moore that he would inventory the vehicle preparatory to
having it towed and that he intended to remove them from the
interstate pursuant to state police policy. He then frisked them
for weapons to insure his safety while conducting the inventory
and while transporting them off of the interstate.
During his frisk of Moore, the trooper detected and removed
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from Moore's pocket an unsheathed syringe, which contained a
clear, white liquid. When Moore denied being a diabetic, the
trooper arrested him for possessing drug paraphernalia. The
trooper then searched Moore incident to that arrest and
discovered in his groin area a brown bag containing ninety-nine
small, blue glassine bags of heroin. Each bag had a street value
of $25 to $35. The trooper testified that normally a customer
will buy one or two bags at a time for personal use.
At police headquarters, Moore voluntarily admitted trying to
purchase heroin and accompanying Ellis, whom he knew to be a drug
dealer, to Norfolk to obtain drugs. He stated that when they
were stopped, Ellis told him to hide the heroin and he hid the
bag and syringe on his person.
At trial, Moore testified that he knew Ellis was a drug
dealer and knew that Ellis was going to sell the heroin. He
testified that he was a drug user but had not sold or conspired
to sell heroin. He testified that he hid the heroin and intended
to keep it for his personal use.
II.
While Moore concedes the lawfulness of the traffic stop, he
contends that the trooper had no lawful basis to frisk him for
weapons. He argues that this frisk was unreasonable, requiring
suppression of the evidence thereby discovered. 1 We disagree.
1
We decline to address Moore's argument that Taylor lacked
probable cause to search him after finding the syringe during the
pat-down. This argument was not addressed to the trial court, and
we will not consider it for the first time on appeal. Rule 5A:18.
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"On appeal, the burden is on appellant to show, considering
the evidence in the light most favorable to the Commonwealth,
that the denial of the motion to suppress constituted reversible
error." Stanley v. Commonwealth, 16 Va. App. 873, 874, 433
S.E.2d 512, 513 (1993).
The Fourth Amendment to the United States Constitution
guarantees "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures . . . . " See Terry v. Ohio, 392 U.S. 1,
8-9 (1968). However:
[I]n certain circumstances, a police officer
is entitled to conduct a limited search of a
citizen who has been detained but not
arrested. The search is necessary because
police officers should not be subjected to
danger . . . .
Harris v. Commonwealth, 241 Va. 146, 149, 400 S.E.2d 191, 193
(1991). See Adams v. Williams, 407 U.S. 143, 146 (1972).
"The touchstone of our analysis under the Fourth Amendment
is always 'the reasonableness in all the circumstances of the
particular governmental invasion of a citizen's personal
security.'" Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977)
(quoting Terry, 392 U.S. at 19). As a general matter, society's
concern for the safety of law enforcement officials when they are
"conducting [their] duties is of paramount importance." Harris,
241 Va. at 151, 400 S.E.2d at 194. Acknowledging that police
officers should be protected in the performance of their duties,
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the United States Supreme Court has held that an officer may
conduct a reasonable search for weapons:
[W]here he has reason to believe that he is
dealing with an armed and dangerous
individual, regardless of whether he has
probable cause to arrest the individual for a
crime. The officer need not be absolutely
certain that the individual is armed; the
issue is whether a reasonably prudent man in
the circumstances would be warranted in the
belief that his safety or that of others was
in danger.
Terry, 392 U.S. at 27 (citations and footnote omitted) (emphasis
added). See Maryland v. Wilson, 117 S. Ct. 882, 886 (1997)
(permitting officer to order passengers out of their car during a
traffic stop because the "danger to an officer from a traffic
stop is likely to be greater where there are passengers in
addition to the driver in the stopped car"); Lansdown v.
Commonwealth, 226 Va. 204, 212, 308 S.E.2d 106, 111 (1983) ("The
law does not expect that a police officer must gamble on turning
away from a possible danger and chance taking a bullet in the
back merely because of the status of a vehicle's occupants.");
Helms v. Commonwealth, 10 Va. App. 368, 371, 392 S.E.2d 496, 497
(1990) (exigent circumstances justifying warrantless search
include danger to the officer).
In State v. Evans, 618 N.E.2d 162 (Ohio 1993), police
officers patted down a suspect prior to placing him in their
cruiser following the suspect's inability to produce a driver's
license after being stopped for a traffic violation. The Supreme
Court of Ohio held:
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Here, the officer's pat-down search of the
defendant was in accordance with standard
police procedure which dictates that
protective measures be taken before a person
is to be held in the back seat of a squad
car. A determination as to the
reasonableness of a particular police
procedure depends "on a balance between the
public interest and the individual's right to
personal security free from arbitrary
interference by law officers." United States
v. Brignoni-Ponce, [] 422 U.S. 873, 878
[(1975)]. Certainly, it is reasonable that
the officer, who has a legitimate reason to
so detain that person, is interested in
guarding against an ambush from the rear.
Id. at 167. The Ohio Court held that the officers' personal
security when balanced against the driver's privacy interests,
warranted "a brief pat-down search for weapons where the
detaining officer has a lawful reason to detain said driver in
the patrol car." Id. See also State v. Vasquez, 807 P.2d 520,
522-23 (Ariz. 1991) (permitting search of defendant's jacket,
which he wanted to take with him, where officer was going to
drive him home from where he had been fighting with his wife);
Byrd v. State, 458 A.2d 23, 25 (Del. 1983) (emphasizing that
officer's intent to transport suspect in his police car to scene
of crime justified frisk for weapons); 4 Wayne R. LaFave, Search
and Seizure: A Treatise on the Fourth Amendment § 9.5(a), at 259
(3d ed. 1996).
Moore relies on Sattler v. Commonwealth, 20 Va. App. 366,
457 S.E.2d 398 (1995). A police officer followed Sattler onto a
service station lot for the purpose of issuing him a summons for
a traffic violation. Before issuing the ticket, the officer
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permitted Sattler to fuel his car and to move it from the fuel
pump to a parking space on the service station lot. The officer
then instructed Sattler to have a seat in the police cruiser but
first frisked him pursuant to the officer's personal policy to
frisk anyone being placed in his police cruiser. We held the
frisk unlawful, because the circumstances "failed to prove that
the officer had specific and articulable facts upon which to
conclude that Sattler was armed and dangerous." Id. at 369, 457
S.E.2d at 400.
The circumstances in this case are quite different from
those in Sattler. In Sattler, the stop took place on the parking
lot of a service station that was open for business. The officer
was not obliged to put Sattler in his cruiser or to get into his
cruiser with Sattler. The circumstances permitted the officer,
if he entered the cruiser with Sattler, to observe Sattler and to
defend himself, if necessary.
In this case, the trooper was required to inventory the car
preparatory to its removal from the bridge. In doing so, he was
obliged to focus his attention on the interior of the vehicle,
turning his back on Moore and Faison. He was further required to
take Moore and Faison into his police cruiser to remove them from
the bridge. In doing so, he was required to focus his attention
and activity on driving the police cruiser. He could not observe
Moore and Faison and was limited in his ability to defend
himself, if necessary.
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The trooper's minimal initial intrusion on Moore's privacy
was circumscribed by exigencies that justified a limited pat-down
for weapons. The trooper was required to inventory the vehicle.
He could not leave Moore and Faison on a bridge with no
sidewalks or on the interstate. Their presence might have
endangered traffic and themselves. The trooper testified that:
"We're not allowed to let a pedestrian walk down the roadway. We
stop and we will either issue a summons, warn the person, arrest
the person, and we're going to transport them off the roadway."
Pursuant to state police policy, the trooper conducted "a
pat-down for our safety to insure that no weapons can be used
against us before we transport them because we have no cages."
The police cruiser had no barrier between the front and rear
seats.
Terry recognized the reasonableness of a minimal intrusion
on personal privacy to insure the safety of an officer
investigating, in a public place, a reasonable suspicion of
lawbreaking. Other authorities have recognized the
reasonableness of such intrusions to insure the safety of
officers performing their duties under other circumstances.
Always, the standard is reasonableness. In Sattler, we held that
the nature of the offense and the location and circumstances of
the encounter were insufficient to render a frisk reasonable.
In this case, Ellis' offense, Faison's intoxication, the
dangerousness of the location, and the trooper's duty to
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inventory the vehicle and to transport its occupants created a
situation that was fraught with potential danger to the trooper,
justifying as reasonable the minimal intrusion of frisking Moore.
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III.
Moore next contends that the evidence was insufficient to
support his conviction for possession of heroin with the intent
to distribute and conspiracy to do the same. He argues that he
intended to keep the drugs for his own personal use and that the
evidence failed to prove that he conspired with Ellis to
distribute heroin.
Upon a challenge to the sufficiency of the evidence to
support a conviction, we "must consider the evidence and all
reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth." Derr v. Commonwealth, 242
Va. 413, 424, 410 S.E.2d 662, 668 (1991) (citation omitted).
POSSESSION WITH INTENT TO DISTRIBUTE
Thus viewed, the evidence proved that Moore possessed the
drugs with the intent to distribute. He testified that when he
bought heroin for his use, he bought up to five bags at a time,
usually paying $10 per bag. The trooper testified that most
users bought one to two bags at a time. Moore possessed
ninety-nine bags having a street value of $25 to $35 each.
"Indeed, quantity, when greater than the supply ordinarily
possessed by a [heroin] user for his personal use, is a
circumstance which, standing alone, may be sufficient to support
a finding of intent to distribute." Hunter v. Commonwealth, 213
Va. 569, 570, 193 S.E.2d 779, 780 (1973).
The credibility of witnesses and the weight to be given
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their testimony are matters exclusively for the fact finder.
Barker v. Commonwealth, 230 Va. 370, 373, 337 S.E.2d 729, 732
(1985). While Moore stated that he intended to keep the heroin
for his personal use, the trial court was entitled to reject this
assertion. See Henry v. Commonwealth, 195 Va. 281, 290, 77
S.E.2d 863, 869 (1953). Furthermore, "[e]vidence of
contradictory statements or false alibis by the accused is given
much weight in cases relying upon circumstantial evidence
. . . ." Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337
S.E.2d 897, 901 (1985). Moore told Taylor that he placed the
heroin in his pants. At trial, he testified, first, that he did
not know what was in the bag that he placed in his pants, and,
later, that "I knew what was in there."
Finally, Moore admitted that he knew Ellis intended to
distribute the heroin. He stated that Ellis told him to hide the
heroin. Thus, Moore was present and assisted Ellis by attempting
to prevent the discovery of the heroin. His actions in hiding
the heroin rendered him a principal in the second degree to
Ellis' possession of heroin with the intent to distribute. See
Foster v. Commonwealth, 179 Va. 96, 99-100, 18 S.E.2d 314, 315-16
(1942).
CONSPIRACY
The evidence also supports Moore's conviction for conspiracy
to possess heroin with intent to distribute. "A conspiracy is
'an agreement between two or more persons by some concerted
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action to commit an offense.'" Brown v. Commonwealth, 3 Va. App.
101, 107, 348 S.E.2d 408, 411 (1986). "Proof of an explicit
agreement to distribute a controlled substance is not required;
the agreement may be proved by circumstantial evidence . . . . In
fact, the nature of conspiracy is such that 'it often may be
established only by indirect and circumstantial evidence.'"
Brown v. Commonwealth, 10 Va. App. 73, 77, 390 S.E.2d 386, 388
(1990) (citations omitted).
While "[e]vidence which merely establishes aiding or
abetting in the commission of the distribution offense will not
suffice to prove a conspiracy . . . [t]he evidence need not show
that . . . [the defendant] knew the entire scope or details of
the plan of distribution." Zuniga v. Commonwealth, 7 Va. App.
523, 529, 531, 375 S.E.2d 381, 385-86 (1988) (citation omitted).
An agreement between Moore and Ellis may be inferred from
the facts and circumstances. As we have noted, determinations of
credibility lie within the purview of the fact finder, who may
reject a witness' testimony and base a finding of guilt upon
contradictory statements. The fact finder may conclude that the
defendant lied to conceal his guilt. See Black v. Commonwealth,
222 Va. 838, 842, 284 S.E.2d 608, 610 (1981).
Moore knew that Ellis was a drug dealer and intended to
distribute the heroin. In furtherance of that unlawful scheme,
Moore accompanied Ellis to Norfolk to obtain heroin and agreed to
hide the heroin at Ellis' direction. This evidence supports the
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finding that Moore intended "'to further, promote and cooperate
in'" Ellis' venture. See Zuniga, 7 Va. App. at 529, 375 S.E.2d
at 385.
The judgment of the trial court is affirmed.
Affirmed.
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