Rayon Levelle Pork v. Commonwealth of Virginia ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Decker
UNPUBLISHED
Argued at Norfolk, Virginia
RAYON LAVELLE PORK
MEMORANDUM OPINION* BY
v. Record No. 1140-14-1 JUDGE ROBERT J. HUMPHREYS
MARCH 31, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James C. Hawks, Judge
Charles E. Haden for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Rayon Lavelle Pork (“Pork”) appeals the ruling of the Circuit Court of the City of
Portsmouth (“trial court”) denying his motion to suppress the evidence recovered pursuant to a
Terry seizure and frisk. Pork’s single assignment of error alleges the trial court erred in denying
his motion because the officer “lacked a reasonable articulable suspicion of criminal activity
afoot at the moment he drew his gun on Pork and ordered Pork out of his car” and also because
“the incriminating character of the plastic baggy and capsules seized from Pork’s pocket was not
immediately apparent to [the officer] since the officer could not distinguish from feel alone
whether the plastic baggy or capsules contained legal or illegal drugs.”
For the following reasons, we hold that the seizure and pat down of Pork were lawful
because the officer had reasonable, articulable suspicion that criminal activity was afoot and that
Pork was armed. We further conclude that we need not determine whether the seizure of the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
heroin from Pork’s pocket was constitutionally proper because this argument was waived by
Pork’s failure to assign error to the trial court’s alternative holding regarding the doctrine of
inevitable discovery. Accordingly, we affirm the trial court.
In reviewing a trial court’s denial of a motion to suppress, “we determine whether the
accused has met his burden to show that the trial court’s ruling, when the evidence is viewed in
the light most favorable to the Commonwealth, was reversible error.” Roberts v.
Commonwealth, 55 Va. App. 146, 150, 684 S.E.2d 824, 826 (2009). This Court is “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). “However, we consider de novo whether those facts implicate the Fourth
Amendment and, if so, whether the officers unlawfully infringed upon an area protected by
the Fourth Amendment.” Hughes v. Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155,
159 (2000) (en banc) (citing McGee, 25 Va. App. at 198, 487 S.E.2d at 261).
The Transition from Consensual Encounter to Terry Seizure
This appeal arises from an interaction between Pork and Officer Siniscalchi of the
Portsmouth Police Department that occurred when Officer Siniscalchi responded to a citizen’s
complaint of a suspicious occupied vehicle.
Police-citizen confrontations generally fall into one of three
categories. First, there are consensual encounters which do not
implicate the Fourth Amendment. Next, there are brief
investigatory stops, commonly referred to as “Terry” stops, which
must be based upon reasonable, articulable suspicion that criminal
activity is or may be afoot. Finally, there are “highly intrusive,
full-scale arrests” or searches which must be based upon probable
cause to believe that a crime has been committed by the suspect.
Andrews v. Commonwealth, 37 Va. App. 479, 489, 559 S.E.2d 401, 406 (2002) (citations
omitted). Before we can assess whether Officer Siniscalchi’s actions were constitutional, we
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must first determine the nature of his encounter with Pork, and whether it changed at any point
during the course of their interaction. Both parties agree that the encounter was initially
consensual. Pork contends that he was seized when Officer Siniscalchi drew his weapon and
ordered him out of the car. Conversely, the Commonwealth contends that Pork was not seized
until he complied with Officer Siniscalchi’s command to step out of the vehicle. By then, the
Commonwealth argues Siniscalchi had a reasonable, articulable suspicion that Pork was carrying
a concealed weapon and, thus, was engaged in criminal activity and was armed. We agree with
the Commonwealth.
“An encounter between a law enforcement officer and a citizen in which the officer
merely identifies himself and states that he is conducting a[n] . . . investigation, without more, is
not a seizure within the meaning of the Fourth Amendment but is, instead, a consensual
encounter.” McGee, 25 Va. App. at 199, 487 S.E.2d at 262. Likewise, “interrogation relating to
one’s identity or a request for identification by the police does not, by itself, constitute a Fourth
Amendment seizure.” INS v. Delgado, 466 U.S. 210, 216 (1984).
Pork was sitting in the driver’s seat of a vehicle parked legally on the street. Officer
Siniscalchi approached the vehicle on foot from the driver’s side at an angle that would have
made his approach obvious to Pork. Officer Siniscalchi then explained to Pork that he was there
to investigate a citizen’s report that two men were sitting in a vehicle for unknown reasons. Pork
was initially cooperative and provided his identification to Officer Siniscalchi. Thus, the
encounter between Pork and the officer, at least at the outset, was indeed a consensual encounter.
Terry Seizure
The next inquiry we must answer is when the interaction transformed from a consensual
encounter to a seizure within the meaning of the Fourth Amendment. “A person is ‘seized’
within the meaning of the Fourth Amendment if, under the circumstances presented, a reasonable
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person would believe that he was not free to leave the scene of an encounter with the police.”
McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001) (citations omitted).
Therefore, a “seizure occurs when a law enforcement officer, by physical force or some display
of authority, restrains in some manner a citizen’s freedom of movement. Only when such
restraint is imposed is there a basis for invoking Fourth Amendment safeguards.” Id. at 490-91,
545 S.E.2d at 545. Courts consider factors such as the presence of multiple officers, language or
tone of voice of the officer, physical touching of the person by the officer, and the display of a
weapon by an officer when determining if a person is seized within the meaning of the Fourth
Amendment. See United States v. Mendenhall, 446 U.S. 544, 554 (1980). However,
[T]here is a condition precedent to a seizure: The individual
must submit to the officer’s force or authority. “[The Mendenhall]
test is not applicable until the person submits to the officer’s show
of authority.” Cochran v. Commonwealth, 258 Va. 604, 608, 521
S.E.2d 287, 289 (1999). “A seizure does not occur in the absence
of . . . a defendant’s submission to an officer’s assertion of
authority.” McCain, 261 Va. at 491, 545 S.E.2d at 546.
Jones v. Commonwealth, 52 Va. App. 548, 557, 665 S.E.2d 261, 265 (2008).
In the present case, Pork was not seized until he submitted to Officer Siniscalchi’s
display of force, show of authority, and complied with the officer’s demand and exited the
vehicle. The record establishes that after Officer Siniscalchi observed the “silhouette of a
firearm” in the backseat of the vehicle that was easily accessible to both occupants of the vehicle,
he then asked Pork if there were any weapons in the car. Pork “hesitated completely,” and his
eyes shifted to the right. Officer Siniscalchi then asked Pork to step out of the vehicle, but Pork
ignored the command and immediately concealed his right hand near his right hip, between the
driver’s seat and center console. Officer Siniscalchi told Pork to put his hands on the steering
wheel at least three times, but Pork continued to reach to the right. In response to Pork’s refusal
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to keep his hands on the steering wheel, Officer Siniscalchi drew his weapon and again told Pork
to step out of the car, at which point, Pork complied.
We have addressed this precise issue in two prior cases with strikingly similar facts.
First, in Jones, this Court reasoned that because the appellant failed to comply with three
commands from the police officer to put his hands on the steering wheel and instead reached for
the floorboard, the appellant had not submitted to the officer’s authority. 52 Va. App. at 557,
665 S.E.2d at 265-66. It was not until the police officer drew his weapon, upon learning of the
presence of a knife, and ordered the appellant out of the car that the appellant complied with the
officer’s command and exited the vehicle. Id. Therefore, we held that “it was at that point, when
[the appellant] exited the car, and not before, that [the appellant] was seized.” Id. Similarly, in
Beasley v. Commonwealth, 60 Va. App. 381, 394, 728 S.E.2d 499, 505 (2012), we held that the
appellant “only actually submitted to [the police officer’s] show of authority when the appellant
stopped moving his hands furtively following [the police officer’s] third instruction to keep his
hands on his lap where they could be seen,” and thus became seized when he actually complied
with the officer’s instructions and stopped moving his hands.
Similar to the appellants in Jones and Beasley, Pork initially ignored Officer Siniscalchi’s
multiple commands to keep his hands where they could be seen. It wasn’t until Officer
Siniscalchi drew his weapon and Pork complied with his command to exit the vehicle that Pork
actually submitted to Officer Siniscalchi’s authority and was seized within the meaning of the
Fourth Amendment.
Having resolved when the seizure of Pork occurred, to determine if such seizure was
lawful, we must next determine if, at the time of the seizure, Officer Siniscalchi had a
reasonable, articulable suspicion that Pork may have been involved in criminal activity.
Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), “[i]f a police officer has reasonable, articulable
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suspicion that a person is engaging in, or is about to engage in, criminal activity, the officer may
detain the suspect to conduct a brief investigation without violating the person’s Fourth
Amendment protection against unreasonable searches and seizures.” McGee, 25 Va. App. at
202, 487 S.E.2d at 263 (citing Terry, 392 U.S. at 27). In the context of a consensual encounter, a
police officer may elevate such encounter with a citizen into an investigatory detention only if
the officer has a “reasonable suspicion supported by articulable facts that criminal activity ‘may
be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7
(1989). When a court reviews whether an officer had reasonable suspicion to temporarily detain
a person, it must view the totality of the circumstances and view those facts objectively through
the eyes of a reasonable police officer with the knowledge, training, and experience of the
investigating officer. Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128
(1989).
In this case, Officer Siniscalchi first encountered Pork at night in a high crime area
known for illegal drug activity that was dimly lit. Officer Siniscalchi observed the silhouette of
what appeared to be a handgun in the backseat that was within reaching distance of both Pork
and the other passenger. When asked if there were any weapons in the car, Pork hesitated in
answering. When Officer Siniscalchi asked Pork to step out of the vehicle, Pork began reaching
towards his right side, immediately concealing his right hand in the area between the driver’s
seat and center console. Despite Officer Siniscalchi’s repeated commands for Pork to stop
reaching and to place his hands on the steering wheel, Pork continued to conceal his right hand.
Given these facts, Officer Siniscalchi had reasonable, articulable suspicion that Pork possessed a
concealed weapon.
The holdings in Jones and Beasley further demonstrate that Officer Siniscalchi
reasonably suspected that Pork possessed a concealed weapon. In Jones, we held that the
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officers had reasonable suspicion that the appellant possessed a concealed weapon, given that the
encounter occurred late at night in an area known for drug trafficking, the appellant acted
“furtively” and ignored several commands from the officers, and the observation of a knife
behind the passenger seat within reach of appellant. 52 Va. App. at 552-54, 665 S.E.2d at 264.
In Beasley, we similarly concluded reasonable suspicion existed when the encounter occurred at
night in an area known for “narcotics transactions and gun crimes,” the appellant and other
passenger of the minivan moved their hands in a “furtive manner” and continued to do so despite
repeated directives from the officer to stop, and the officer’s experience that persons “who move
their hands in such a furtive manner are likely attempting to hide illegal drugs or weapons from
the police.” 60 Va. App. at 395-97, 728 S.E.2d at 506. In consideration of all the present
circumstances in this case, we conclude that at the time of Pork’s seizure, Officer Siniscalchi had
reasonable, articulable suspicion that Pork possessed a concealed weapon, which also rendered
him potentially armed and dangerous.
Terry Frisk
In addition to allowing brief investigatory detentions, Terry also held that “when an
officer is justified in believing that the individual whose suspicious behavior he is investigating
at close range is armed and presently dangerous to the officer or to others,” the officer may
conduct a limited search of the suspect’s outer clothing “to determine whether the person is in
fact carrying a weapon.” 392 U.S. at 24. Such frisk “must be limited to that which is necessary
for the discovery of weapons which might be used to harm the officer or others nearby.” Id. at
26. “The purpose of this limited search is not to discover evidence of crime, but to allow the
officer to pursue his investigation without fear of violence.” Adams v. Williams, 407 U.S. 143,
146 (1972). If the protective search goes beyond what is necessary to determine if the suspect is
armed, it is no longer valid. Sibron v. New York, 392 U.S. 40, 65-66 (1968).
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[T]he search of the passenger compartment of an automobile,
limited to those areas in which a weapon may be placed or hidden,
is permissible if the police officer possesses a reasonable belief
based on “specific and articulable facts which, taken together with
the rational inferences from those facts, reasonably warrant” the
officer in believing that the suspect is dangerous and the suspect
may gain immediate control of weapons.
Jones, 52 Va. App. at 567, 665 S.E.2d at 271 (quoting Michigan v. Long, 463 U.S. 1032, 1050
(1983)). For the reasons stated above that supported the seizure of Pork based upon a
reasonable, articulable suspicion that Pork had a concealed weapon, the subsequent pat down of
Pork and protective sweep of the vehicle for weapons were also reasonable.
Inevitable Discovery
During the pat down, Officer Siniscalchi removed a baggy of capsules from Pork’s front
pocket, which were later determined to be heroin. Pork argues that the seizure of the baggy was
improper under the holdings of Minnesota v. Dickerson, 508 U.S. 366 (1993), Cost v.
Commonwealth, 275 Va. 246, 657 S.E.2d 505 (2008), and Grandison v. Commonwealth, 274
Va. 316, 645 S.E.2d 298 (2007). The Commonwealth contends that Officer Siniscalchi testified
that the character of the heroin capsules was immediately apparent as contraband, therefore
satisfying the “plain feel” doctrine of Dickerson. The Commonwealth further argues that even if
the seizure was improper, the heroin capsules would have inevitably been discovered as a result
of the sweep for weapons of the area around the driver’s seat, which uncovered a concealed
weapon.
On appeal, Pork assigns error only to the trial court’s holding with respect to 1) whether
reasonable suspicion existed for Pork’s seizure and detention and 2) the applicability of the
“plain feel” doctrine of Dickerson. Pork fails to assign error or even address the trial court’s
alternative holding regarding the application of the inevitable discovery doctrine. The
Commonwealth contends that because Pork failed to assign error to the trial court’s inevitable
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discovery ruling on brief, he has waived any issue regarding error to this ruling on appeal before
this Court. We agree.
This Court’s jurisprudence is clear that when a trial court issues one or more alternative
holdings, the appellant’s failure to address one of those holdings constitutes a waiver of any
challenge to the trial court’s ruling on that issue. See Johnson v. Commonwealth, 45 Va. App.
113, 115-16, 609 S.E.2d 58, 59 (2005). In Johnson, the trial court denied the appellant’s motion
to suppress heroin obtained during a Terry frisk, holding first, that the officer did not exceed the
permissible limits of a weapons frisk, and second, the evidence proved the heroin would have
been “inevitably discovered” by the officer even if the weapons frisk had not taken place. Id. at
115, 609 S.E.2d at 59. This Court further held that the inevitable discovery doctrine, when
properly applied, serves as an adequate and independent legal basis for denying the appellant’s
motion to suppress. Id. at 117, 609 S.E.2d at 60. Therefore, because the appellant only
challenged the trial court’s first holding on appeal, without assigning error to the ruling regarding
inevitable discovery, this Court deemed the appellant’s argument relating to the illegality of the
seizure of drugs waived, and declined to consider whether the trial court properly applied the
doctrine of inevitable discovery. Id.
Although Pork challenged the trial court’s inevitable discovery ruling below, he
completely abandoned this challenge on appeal. The trial court specifically held that Officer
Siniscalchi’s sweep of the area of the driver’s area of the car for weapons as part of the pat down
of Pork would have resulted in the discovery of the concealed firearm that was located in
between the driver’s seat and the center console and that, “the arrest would have been made and
everything else would have flowed from there in inevitable discovery.” Accordingly, the trial
court deemed it unnecessary to address the impact of the exclusionary rule to the “plain feel”
doctrine to determine if the drugs should have been suppressed. Because the seizure and frisk
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were proper under the Fourth Amendment and because Pork failed to assign error to the
alternative ruling of the trial court on appeal, which is procedurally waived pursuant to Johnson,
we need not reach the merits of Pork’s argument regarding the illegality of the seizure of the
heroin.
In sum, based upon the totality of the circumstances, we find that the seizure and pat
down of Pork were lawful because Officer Siniscalchi had reasonable, articulable suspicion that
Pork had a concealed weapon. We further conclude that we need not address the merits of the
legality of the seizure of the baggy of heroin in light of Pork’s failure to assign error to the trial
court’s alternative ruling based on the doctrine of inevitable discovery. Accordingly, we affirm
the judgment of the trial court.
Affirmed.
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