Kenneth Jackson v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
KENNETH JACKSON
*
MEMORANDUM OPINION BY
v. Record No. 2096-98-2 JUDGE DONALD W. LEMONS
MARCH 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge
Esther J. Windmueller for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Kenneth Jackson appeals his conviction upon a conditional
guilty plea to possession of cocaine and possession of heroin.
Jackson reserved his right to appeal the denial of his
suppression motion. Finding no error, we affirm his
convictions.
I. BACKGROUND
"'Ultimate questions of reasonable suspicion and probable
cause 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) (quoting Ornelas v. United States, 517 U.S. 690, 691
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
(1996). This Court, however, 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." Id. at 198, 481 S.E.2d at 261
(citation omitted).
On October 10, 1997, at approximately nine o'clock in the
evening, Henrico County Police Officer Glen Hubbard drove to the
3600 block of Kings Pointe Drive in response to a radio call he
received. An anonymous caller had reported that a prowler was
looking into windows in the back of the apartment complex at
that address. Several similar reports had been received by
police in the previous two weeks concerning the same apartment
complex. This call described a black male, approximately six
feet tall, slender, wearing a black jogging suit, walking in the
rear of that apartment building, and "looking in rear windows."
Within two minutes of the call, Officer Hubbard arrived at
the complex and within one and one-half minutes saw the
defendant, Kenneth Jackson, who matched the anonymous caller's
description of the suspect precisely where the caller said there
was a prowler. Jackson walked at a fast pace toward the front
of the building. Before Jackson reached the front of the
building, Officer Hubbard asked to speak with him. The
defendant ignored Hubbard and proceeded to the front of the
building, opened the door to the apartment and started to cross
- 2 -
the threshold. By this time, Officer Edward Smith had joined
Officer Hubbard at the entrance to the apartment.
As he was opening the door, Jackson "reached down real
quick and started fumbling" and retrieved items "from underneath
his pants leg." One of the items appeared to be a shotgun
shell. Jackson placed the shotgun shell and other, as yet
unidentified, items inside the apartment out of view of the
officer but within arm's reach of Jackson. Jackson remained
outside the door.
At that time, Hubbard noticed a woman walking toward the
doorway from inside the apartment and he "asked her to stop
where she was at, which was about halfway between the back of
the apartment to the front door." She stopped and Hubbard
walked through the doorway into the apartment while Officer
Smith detained Jackson outside the door.
During Hubbard's conversation with the woman, he saw some
items on the inside ledge of the window near the door where
Jackson had placed the items he had in his possession. Hubbard
seized the items that consisted of a cigarette pack, a crack
pipe, and a shotgun shell casing.
Hubbard pointed out the shell and crack pipe to Smith who
placed Jackson under arrest for possession of cocaine. A search
of Jackson incident to arrest revealed a wadded up napkin and a
foil packet that contained an off white powder. Subsequent
analysis of both items confirmed that the items contained
- 3 -
cocaine and heroin. Although the officers did not know it at
the time, the residence was Jackson's.
II. TERRY STOP
When a defendant appeals a trial court's denial of his
motion to suppress evidence, "the burden is on appellant to
show, considering the evidence in the light most favorable to
the Commonwealth, that the denial . . . constituted reversible
error." Stanley v. Commonwealth, 16 Va. App. 873, 874, 433
S.E.2d 512, 513 (1993).
To conduct an investigatory stop of an individual, the
police must possess reasonable suspicion based on articulable
facts that the individual is, or has been, engaged in criminal
activity. Terry v. Ohio, 392 U.S. 1, 21-22 (1968); Phillips v.
Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993).
"[A]nonymous information that has been sufficiently corroborated
may furnish reasonable suspicion justifying an investigative
stop." Bulatko v. Commonwealth, 16 Va. App. 135, 137, 428
S.E.2d 306, 307 (1993) (citing Alabama v. White, 496 U.S. 325,
331 (1990)). The independent corroboration gives "some degree
of reliability to the other allegations" of the informant. Id.Here, an anonymous caller gave police a description of a
prowler and his location. Within a few minutes of the call, the
officer observed the defendant who matched the clothing and
physical descriptions given by the caller. The suspect's
- 4 -
physical characteristics, the clothing he would be wearing and
his location were all confirmed by police upon arrival.
Additionally, when the officer reached the location, the
defendant behaved suspiciously. He walked quickly by the
officers and did not respond to their questions. As he entered
the apartment, he "reached down real quick and started
fumbling." He then removed some items including one that
appeared to be the casing of a shotgun shell. When viewed in
the light most favorable to the Commonwealth, these facts
support a reasonable, articulable suspicion that Jackson was or
had been engaged in criminal activity. A Terry stop to
investigate further was proper.
III. CROSSING THE THRESHOLD
Once a police officer has properly detained a suspect for
questioning, he may conduct a limited pat-down search of the
suspect for weapons if he reasonably believes, based on specific
and articulable facts, that the suspect might be armed and
dangerous. See Phillips, 17 Va. App. at 30, 434 S.E.2d at 920.
The officer need only "'reasonably believe[] that the individual
might be armed.'" Lansdown v. Commonwealth, 226 Va. 204, 211,
308 S.E.2d 106, 111 (1983) (quoting Simmons v. Commonwealth, 217
Va. 552, 556, 231 S.E.2d 218, 220-21 (1977)), cert. denied, 465
U.S. 1104 (1984). The officer may rely upon the totality of the
circumstances and may consider any suspicious actions of the
person searched, such as an obvious attempt to avoid the officer
- 5 -
or any nervous conduct based on the discovery of the officer's
presence. See United States v. Bull, 565 F.2d 869, 870-71 (4th
Cir. 1977), cert. denied, 435 U.S. 946 (1978). See also
Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87
(1987).
Officer Hubbard was justified in making a Terry stop when
the tip had been corroborated. The stop did not occur
immediately because Jackson ignored the officer's questions.
Jackson's refusal to stop combined with his furtive movements at
the doorway and his placement of items inside the threshold
further heightened the officer's suspicion and concern. Upon
seeing what appeared to be a shotgun shell among the items and
the appearance of a third, as yet unidentified, person on the
scene, the officer's concern for his safety and that of the
third party justified a pat-down search and a search of the area
within Jackson's immediate control and that of the third person.
See Servis v. Commonwealth, 6 Va. App. 507, 519, 371 S.E.2d 156,
162 (1988). The officers did not know if the woman walking
toward the area where the shotgun shell and other items had been
placed was a potential victim or a potential accomplice of
Jackson. In the split second within which decisions must be
made on the street, Officer Hubbard reasonably concluded that
ascertaining what had been placed immediately within the
threshold was necessary for officer safety or for the safety of
this, as yet unidentified, woman.
- 6 -
"[F]risking for weapons based upon the exigency of
protecting an officer's safety is not limited to a pat-down of
the suspect but may extend to nearby vehicles . . . or rooms or
premises to which the suspect may retreat to secure a weapon."
Washington v. Commonwealth, 29 Va. App. 5, 14, 509 S.E.2d 512,
516 (1999) (en banc). The Fourth Amendment does not require
police to desist from effecting an otherwise valid Terry stop
simply because the suspect moves from his porch to the living
room through a still opened door. See Harbin v. City of
Alexandria 712 F. Supp. 67, 72 (E.D.Va 1989). "If the suspect
moves about, an officer is justified in staying with the
individual during the course of the stop and conducting a
protective search of the areas which come within the suspect's
immediate control, even if this action necessitates entry into
the suspect's home." Servis, 6 Va. App. at 519, 311 S.E.2d at
162.
Police observed Jackson place what appeared to be a shotgun
shell inside the apartment. The area was still within Jackson's
reach, and was within reach of the woman who had yet to be
identified. A weapon there could have been a danger to the
officers or the occupant of the apartment. This danger
presented exigent circumstances justifying the crossing of the
threshold. See Verez v. Commonwealth, 230 Va. 405, 410-11, 337
S.E.2d 749, 753 (1985), cert. denied, 479 U.S. 813 (1986);
Reynolds v. Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659,
- 7 -
663 (1990). In the course of conducting a lawful protective
search of the area within the immediate control of the suspect
and the unidentified woman, Officer Hubbard saw a crack pipe in
plain view. The officer was entitled to seize the contraband.
IV. CONCLUSION
The Terry stop was proper upon corroboration of the tip and
upon observation of Jackson's furtive behavior. Concern for
safety was further heightened by Jackson's placement of what
appeared to be a shotgun shell inside the threshold of the
apartment. The presence of an additional unidentified person
added to the officer's concern for his safety and the safety of
others and justified a pat-down search and a protective search
of the immediate area within Jackson's control and within the
unidentified woman's control. Officer Hubbard was properly in a
location where contraband was in plain view and properly seized
the items. The trial judge did not err in denying the motion to
suppress the evidence. The convictions are affirmed.
Affirmed.
- 8 -