Charles Corey Robinson v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia
CHARLES COREY ROBINSON
MEMORANDUM OPINION * BY
v. Record No. 1680-01-2 JUDGE JERE M. H. WILLIS, JR.
MAY 21, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Craig W. Stallard, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Charles Robinson was convicted in a bench trial of (1)
possession of cocaine with the intent to distribute, in violation
of Code § 18.2-248; (2) possession of heroin, in violation of Code
§ 18.2-250; and (3) possession of marijuana, in violation of Code
§ 18.2-250.1. Arguing that he was seized without probable cause
or reasonable suspicion, he contends that the trial court erred in
denying his motion to suppress. He further contends that
insufficient evidence supports his conviction for possession of
cocaine with the intent to distribute. We disagree and affirm the
judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
A. TRAFFIC STOP
On November 17, 2000, Virginia State Trooper D.J. Corbett
stopped at the traffic signal at the intersection of Jahnke Road
and Forest Hill Avenue in Richmond. Robinson pulled his car up
to the intersection and stopped to Trooper Corbett's left.
Looking to his left, Trooper Corbett observed hanging from
Robinson's mouth what he believed from his experience was a
hand-rolled marijuana cigarette. Robinson looked over at the
trooper, made eye contact, then looked back. Facing front,
Robinson pulled down on his lip, removed the cigarette from his
mouth, and then looked up and to his left. Trooper Corbett
motioned Robinson to pull over.
Approaching Robinson's car, Trooper Corbett detected a
strong odor of marijuana. He removed Robinson from the car,
placed him in handcuffs, and Mirandized him. Trooper Corbett
then explained that he was detaining Robinson until he
determined how much marijuana was in the car. Trooper Corbett
also removed a passenger from the car. Robinson told Trooper
Corbett that he had thrown the cigarette out the window and that
his passenger had thrown out the marijuana.
Trooper Corbett began to search for the cigarette and the
marijuana. He found neither. He advised Robinson that he
wanted to search the car and asked for Robinson's consent.
Robinson refused. Trooper Corbett advised Robinson that he had
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probable cause to search the car and would do so. Robinson
thereupon volunteered that $500 worth of cocaine was "under the
car."
During the vehicle search, Trooper Corbett discovered (1)
6.4 grams of marijuana beneath the seat; (2) 46.88 grams of
crack cocaine beneath the seat on the passenger side, just down
from the marijuana; (3) 0.047 grams of heroin wrapped in a one
dollar bill in Robinson's wallet, which was in the car; and (4)
Oxycodone (Percoset) tablets. In searching Robinson, he
discovered $860 in cash.
After the drugs were discovered, Robinson stated he had
lent his car to a person called "Mousee." He stated he was
going to return the drugs to Mousee "and he hadn't realized the
drugs were in there until [the passenger] looked under the front
seat and mentioned that there was cocaine under the front seat."
Robinson stated that this conversation with the passenger
occurred before his car was stopped.
B. TRIAL
Robinson was indicted for (1) possession of cocaine with
the intent to distribute, in violation of Code § 18.2-248;
(2) possession of heroin, in violation of Code § 18.2-250;
(3) possession of Oxycodone, in violation of Code § 18.2-250;
and (4) possession of marijuana, in violation of Code
§ 18.2-250.1. Robinson moved to suppress as evidence the drugs
found by Trooper Corbett in the car, arguing that his stop by
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Trooper Corbett and the resulting warrantless search were
unsupported by probable cause or reasonable suspicion and,
therefore, constituted an unlawful search and seizure. The
motion to suppress was denied. The trial court stated:
You know, I probably never would have seen
the cigarette. None of the rest of us would
have unless you've had that training. It's
certainly [sic] he cannot articulate what he
saw, but it is a reasonable articulable
suspicion. And I think the furtive
movement, the way the trooper described the
way he removed it after seeing, making eye
contact. We give him a minimal amount of
reasonable articulable suspicion.
The case proceeded to trial. At the close of all the
evidence, the motion to suppress was renewed and again denied.
Robinson was found not guilty of possession of Oxycodone, but
was convicted on the remaining counts. He was sentenced to ten
years incarceration with five years suspended for possession of
cocaine with the intent to distribute. On the charge of
possession of heroin, he was sentenced to five years
incarceration with two years suspended. The trial court
suspended imposition of sentence on the possession of marijuana
charge.
II. ANALYSIS
On appeal, Robinson contends that the trial court erred in
denying his motion to suppress. He argues that he was seized
without probable cause or reasonable suspicion and that the
resulting search of his car was unlawful. He also argues that
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the evidence was insufficient to support his conviction for
possession of cocaine with the intent to distribute. We
disagree on both issues.
A. DENIAL OF MOTION TO SUPPRESS
Upon a Fourth Amendment challenge on appeal, "[u]ltimate
questions of reasonable suspicion and probable cause to make a
warrantless search" involve questions of both law and fact and
are reviewed de novo. McGee v. Commonwealth, 25 Va. App. 193,
197, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v.
United States, 517 U.S. 690, 691 (1996)). We 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." Id. at 198, 487 S.E.2d at 261
(citing Ornelas, 517 U.S. at 699).
Trooper Corbett's initial stop of Robinson was predicated
on reasonable suspicion.
[W]hen a court reviews whether an officer
has reasonable suspicions to make an
investigatory stop, 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. Based upon that
objective assessment, courts must determine
whether the officer could have entertained
an articulable and reasonable suspicion that
the defendant was involved in unlawful
activity. If the officer's suspicion
amounts to merely an "inchoate and
unparticularized suspicion or 'hunch' . . .
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[rather] than a fair inference in light of
his experience, [it] is simply too slender a
reed to support the seizure" under the
fourth and fourteenth amendments of the
United States Constitution.
Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128
(1989) (citation omitted).
The circumstances to be considered in determining
reasonable suspicion include "any suspicious conduct of the
person accosted such as an obvious intent to avoid officers or
any nervous conduct on the discovery of their presence." United
States v. Bull, 565 F.2d 869, 870-71 (4th Cir. 1977). Such
circumstances were considered in Hollis v. Commonwealth, 216 Va.
874, 223 S.E.2d 877 (1976).
In Hollis, Officer Cox observed Hollis sitting in an
automobile smoking a hand-rolled cigarette. Experienced in
narcotics investigations, Officer Cox believed the cigarette to
contain marijuana. When the officer approached the automobile,
Hollis furtively attempted to hide the cigarette from view.
Before opening the car door, Cox observed the hand-rolled
cigarette on the floorboard. In affirming Hollis' conviction,
the Court held that "[t]he appearance of the cigarette and
Hollis's furtive gesture in attempting to hide it combined to
provide the necessary probable cause to search the car without
obtaining a warrant." Id. at 877, 223 S.E.2d at 889.
Like Officer Cox, Trooper Corbett possessed narcotics
experience. In five years with the Virginia State Police he had
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recorded over 160 drug arrests involving marijuana, cocaine,
heroin, and ecstasy. He testified that when Robinson pulled up
beside him at the intersection, he observed what he believed
from his experience to be a marijuana cigarette. After making
eye contact, Robinson removed the cigarette from his mouth and
began looking in the opposite direction, avoiding further eye
contact. Trooper Corbett's experience and observations, coupled
with Robinson's furtive actions, provided reasonable suspicion
to stop Robinson.
Upon approaching Robinson's car, Trooper Corbett detected a
strong odor of marijuana. That odor, coupled with his previous
observations, provided Trooper Corbett probable cause to search
the vehicle. Consequently, the trial court did not err in
denying Robinson's motion to suppress the fruits of that search.
B. EVIDENCE SUFFICIENT TO ESTABLISH POSSESSION OF COCAINE
Robinson argues that the evidence was insufficient to prove
that he possessed the cocaine found in the car. No drugs were
found on Robinson's person. Thus, he was not in actual
possession of any drugs. However, the Commonwealth may prove
constructive possession. See Wright v. Commonwealth, 217 Va.
669, 670, 232 S.E.2d 733, 734 (1977). To prove constructive
possession, the Commonwealth must prove (1) that Robinson was
aware of the presence and character of the drugs found in the
car; and (2) that he exercised dominion and control over them.
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See Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986).
Robinson concedes that he had knowledge of the presence and
character of the cocaine. He informed Trooper Corbett of its
presence in the car, thus satisfying the first prong of the test
as to the cocaine. However, he argues that the evidence was
insufficient to show he exercised dominion and control over the
cocaine. We disagree.
Robinson asserted that he and his passenger had a
conversation, prior to the stop, regarding the presence of the
cocaine. Indeed, he testified that he told Trooper Corbett that
he intended to return the drugs to "Mousee," the proper owner.
Those actions, coupled with the cocaine's close proximity to
Robinson, are sufficient to constitute exercise of dominion and
control. Consequently, the evidence was sufficient to prove
constructive possession of the cocaine. This supports an
inference of constructive possession with respect to the other
drugs.
The judgment of trial court is affirmed.
Affirmed.
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Benton, J., dissenting.
"When the police stop a motor vehicle and detain an
occupant, this constitutes a 'seizure' of the person for Fourth
Amendment purposes, even though the function of the stop is
limited and the detention brief." Zimmerman v. Commonwealth,
234 Va. 609, 611, 363 S.E.2d 708, 709 (1988) (citations
omitted).
It is well-established that an
investigatory stop may be initiated only
when an officer has "a reasonable suspicion,
based on objective facts, that the
individual is involved in criminal
activity." When examining the officer's
articulable reasons for stopping a person,
we examine the objective reasonableness of
the officer's behavior rather than the
officer's subjective belief that the conduct
indicates criminal activity.
Riley v. Commonwealth, 13 Va. App. 494, 496-97, 412 S.E.2d 724,
725 (1992) (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)).
"'Ultimate questions of reasonable suspicion . . . to make a
warrantless search' involve questions of both law and fact and
are reviewed de novo on appeal." McGee v. Commonwealth, 25 Va.
App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation
omitted).
The evidence in this record proves that "[t]he detaining
officer [did not] 'have a particularized and objective basis for
suspecting [Robinson] of criminal activity.'" Zimmerman, 234
Va. at 612, 363 S.E.2d at 710 (citation omitted). When the
officer was waiting for the traffic light to change, Robinson
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stopped his vehicle in the travel lane to the left of the
officer's vehicle. The officer looked into Robinson's vehicle
while both were stopped for the traffic light; he saw a front
seat passenger and Robinson, the driver. The officer testified
he "observed a hand rolled cigarette hanging from the mouth of
the driver . . . Robinson." The officer then noted the
following:
[Robinson] looked over to the right and my
eyes looked into his eyes and he then looked
back. His head then turned back so it was
facing front again. He pulled down on his
lip pulling the cigarette out of his mouth
. . . and proceeded to look up and to his
left.
As the light turned green, the officer motioned to Robinson to
stop his vehicle.
Nothing in the officer's testimony suggests that he had a
particularized and objective basis for suspecting Robinson of
criminal activity. Brown, 443 U.S. at 51. An objective
assessment of the totality of the circumstances requires more
than a recitation of the minutia of the factual setting. Unless
the objective facts are shown to give rise to a reasonable
articulable suspicion of criminal conduct, the seizure is
unlawful. The officer articulated nothing about his observation
that suggested the cigarette did not contain ordinary tobacco.
The brief eye contact the officer had with Robinson had no
articulable significance. The fact that a person looks at an
officer does not justify a suspicion of wrongdoing. Taylor v.
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Commonwealth, 6 Va. App. 384, 389, 369 S.E.2d 423, 425 (1988).
See also Reid v. Georgia, 448 U.S. 438, 441 (1980). The officer
saw the driver smoking a hand-rolled cigarette and had only a
subjective hunch that caused him to investigate the vehicle and
detain the occupants.
Every citizen has a constitutionally guaranteed right not
to be stopped at the unfettered discretion of police. "Nothing
is more clear than that the Fourth Amendment was meant to
prevent wholesale intrusions upon the personal security of our
citizenry, whether these intrusions be termed 'arrests' or
'investigatory detentions.'" Davis v. Mississippi, 394 U.S.
721, 726-27 (1969). Fundamental Fourth Amendment principles
require that, "in justifying [a] particular intrusion the police
officer must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts,
reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1,
21 (1968). "In the absence of any basis for suspecting
[Robinson] of misconduct, the balance between the public
interest and [Robinson's] right to personal security and privacy
tilts in favor of freedom from police interference." Brown, 443
U.S. at 52.
The circumstances proved by the evidence in this case are
significantly different than those proved in Hollis v.
Commonwealth, 216 Va. 874, 223 S.E.2d 887 (1976). There, police
detectives were watching a particular Mustang car that a
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reliable informant said was transporting narcotics. Id. at 875,
223 S.E.2d at 888.
As the detectives drove past, [a detective]
shined a hand spotlight on the Mustang and
"it lit the whole complete car up." [The
detective] saw Hollis, seated in the
passenger seat, remove what appeared to be a
hand-rolled cigarette from his mouth and
throw it to the floor of the car. [The
detective] testified that in his
investigation of narcotics cases in past
years he had found that such a movement
comes from "people trying to get rid of
them."
Id.
The fact that the detectives had reliable information about
narcotics in the car added context to their suspicion that the
hand-rolled cigarette contained narcotics. Furthermore, the
detectives saw Hollis remove the hand-rolled cigarette from his
mouth and throw it to the floor of the car after Hollis saw
them. No testimony indicated that Hollis extinguished the
cigarette before dropping it on the floor of the car.
Additionally, the detective articulated that in his experience
the unusual conduct of a person removing a hand-rolled cigarette
from his mouth and discarding it on the floor of a car indicated
the person wanted to hide contraband.
Unlike Hollis, the officer did not see Robinson do anything
with the cigarette that any ordinary smoker of a hand-rolled
tobacco cigarette would not have done. Robinson's activities
were no different than any other driver in those same
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circumstances; he "acted as any other person might have acted
under similar circumstances." Ewell v. Commonwealth, 254 Va.
214, 217, 491 S.E.2d 721, 723 (1997). Furthermore, the evidence
does not establish that Robinson did anything unusual with the
cigarette as he smoked it and held it in his hands. Certainly,
the officer articulated nothing that indicated Robinson's
conduct corresponded to the activities of a person violating the
law. "At best, [the officer's] suspicion amounts to merely an
'inchoate and unparticularized suspicion or "hunch" . . .
[rather] than a fair inference in the light of his experience.'"
Gilpin v. Commonwealth, 26 Va. App. 105, 111-12, 493 S.E.2d 393,
396 (1997) (citation omitted).
As the Court held in Reid, a suspicion based merely on an
officer's observation of conduct that is characteristic of a
very large category of innocent persons is a suspicion grounded
only in a "hunch" and "is simply too slender a reed to support
the seizure." 448 U.S. at 441. "'Reasonable suspicion' is more
than a 'mere hunch.'" Commonwealth v. Thomas, 23 Va. App. 598,
610-11, 478 S.E.2d 715, 721 (1996). "Under the circumstances of
this case, [Robinson's] conduct, viewed either in isolation as
the officer considered it or along with the other behavior as
the court must examine it, is utterly insufficient to generate a
reasonable suspicion that [Robinson] was involved in criminal
activity." Zimmerman, 234 Va. at 612, 363 S.E.2d at 710.
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For these reasons, I would hold that the officer had no
reasonable articulable suspicion that Robinson was engaging in
criminal activity. He acted on a hunch and was not justified in
making the detention. I dissent.
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