Moore v. Commonwealth

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

- 2 -
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.

- 3 -
 "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,

- 4 -
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:

- 5 -
 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

- 6 -
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.

- 7 -
 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

- 8 -
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.

- 9 -
 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

- 10 -
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

- 11 -
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

- 12 -
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.

- 13 -