Frederick Shaft Price v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia
FREDRICK SHAFT PRICE
MEMORANDUM OPINION * BY
v. Record No. 1628-99-3 JUDGE SAM W. COLEMAN III
OCTOBER 10, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Joseph R. Winston (Elwood Earl Sanders, Jr.,
Appellate Defender; Public Defender
Commission, on briefs), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Fredrick Shaft Price was convicted in a bench trial of
possession of cocaine with intent to distribute and felonious
assault and battery of a police officer. On appeal, Price
argues that the trial court erred by denying his motion to
suppress the cocaine and that the evidence is insufficient to
support his assault and battery conviction. We disagree and
affirm the convictions.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
Police Officers Matthew Walker and J.W. McLaughlin were on
foot patrol at approximately 10:30 p.m. when they encountered a
vehicle with its rear passenger door open "sitting in the middle
of the street in the lane of traffic." The vehicle was
approximately three or four feet from the curb. The officers
observed another car approach, which had to go around the
vehicle because it was stopped in the road. The officers
observed a person get in the stopped vehicle and the vehicle
proceeded toward them. The officers stopped the driver of the
vehicle, intending to give the driver a citation for impeding
the flow of traffic.
Officer McLaughlin stood beside the driver's door and
gathered information from the driver. Officer Walker went to
the passenger side of the vehicle where another individual was
sitting in the front passenger seat. The defendant, Price, was
sitting in the back seat behind the passenger. Officer Walker
noticed what he testified to as an open beer bottle protruding
from a brown paper bag between Price's legs. Walker asked Price
for the bottle and, as Price handed Walker the bottle, Price
opened the back door of the vehicle. Walker closed the door and
instructed Price to roll down the window so that Walker could
obtain information from Price as to his name and social security
number. While Walker was attempting to obtain the information
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from Price, Price "tried to jump out of the car and threw the
door open." Walker, who was standing "directly in front of the
door" speaking with the defendant, was "struck" by the door as
it "flew open" and was "knocked back." Walker "grabbed hold of
the door" to keep from falling. He tried to shut the car door,
but Price was "already half-way out." Walker "grabbed hold" of
Price as Price exited the car and tried to flee, and a struggle
ensued between them. Walker and McLaughlin were able to subdue
Price and handcuff him. Price was arrested for assaulting a
police officer.
Walker conducted a search incident to arresting Price and
found $198 in cash in Price's pants pocket and two baggies
containing an off-white rock-like substance in his jacket
pocket. Officer McLaughlin searched Price's book bag and found
digital scales and several razors. The rock-like substance was
analyzed and determined to be cocaine.
II. ANALYSIS
A. Motion to Suppress
Price argues that the trial court erred by denying his
motion to suppress. He argues that the officers had no
reasonable basis to suspect that beer was in the bottle until
after they seized it. In other words, he claims that the
evidence was insufficient to cause a police officer to
reasonably suspect that he possessed an open container of beer.
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Accordingly, Price asserts that when Walker demanded the bottle,
that action constituted an illegal search and seizure for Fourth
Amendment purposes, which action was prior to the time the
officer had reason to suspect that the bottle contained beer.
Additionally, Price argues, even if the officer had reason to
suspect that Price possessed an open container of beer, a
violation of the open container ordinance is a misdemeanor not
punishable by confinement and, therefore, under Knowles v. Iowa,
525 U.S. 113 (1998), the officer's request that Price remain in
the vehicle after the bottle was seized constituted an unlawful
detention which led to the unlawful search which led to the
discovery of the cocaine. 1
When we review a trial court's denial of a suppression
motion, "[w]e view the evidence in a light most favorable to
. . . the prevailing party below, and we grant all reasonable
inferences fairly deducible from that evidence." Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)
(citation omitted). "[W]e are bound by the trial court's
1
On appeal, Price "assumes," without conceding, that the
Danville ordinance, prohibiting an open alcoholic beverage
container in public in Danville, prohibits possession of an open
container in a vehicle on a public street. He does not contend
on appeal that his possession of an open container of beer would
not be a violation of the Danville ordinance. Accordingly, we
are not called upon to, and do not, decide whether possession of
an open container of beer by a passenger in the back seat of a
car on a public street violates Danville's open container
ordinance.
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findings of historical fact unless 'plainly wrong' or without
evidence to support them." McGee v. Commonwealth, 25 Va. App.
193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas
v. United States, 517 U.S. 690, 699 (1996)). "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).
"A warrantless search is per se unreasonable and violative
of the Fourth Amendment of the United States Constitution,
subject to certain exceptions." Tipton v. Commonwealth, 18 Va.
App. 370, 373, 444 S.E.2d 1, 3 (1994) (citation omitted).
However, searches made by law enforcement officers incident to
arrest are permitted as an exception to the warrant requirement.
See United States v. Robinson, 414 U.S. 218, 235 (1973). In
Robinson, the United States Supreme Court noted that the
authority to conduct a search incident to arrest is based on the
need to disarm the suspect in order to take him into custody and
the need to preserve evidence for later use at trial. See id.
at 234. The Court stated that a custodial arrest involves
"danger to an officer" because of "the extended exposure which
follows the taking of a suspect into custody and transporting
him to the police station." Id. at 234-35.
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Here, the officers lawfully stopped the vehicle to issue
the driver a citation for impeding the flow of traffic. Viewing
the evidence in the light most favorable to the Commonwealth,
the evidence shows that, while Walker was standing outside the
passenger-side door, he observed what he perceived was an open
beer bottle. Walker testified that when he approached the
passenger-side door, he "noticed [Price] with a beer between his
legs." Upon seeing the clear bottle protruding from the bag,
Walker readily recognized the object as an open Corona beer
bottle. Walker described the bottle and what it contained.
Although Price contends that, upon viewing the record as a
whole, it is apparent that the officer was not aware that the
bottle contained beer until after he seized and examined it,
from our reading of the record, in the light most favorable to
the Commonwealth, that conclusion does not necessarily follow.
Based on the foregoing reading of the record, the officer had
reasonable suspicion that Price had an open container of beer
between his legs. Therefore, the officer was lawfully permitted
to detain Price while he investigated the ordinance violation.
See Terry v. Ohio, 392 U.S. 1 (1968). "'[I]f there are
articulable facts supporting a reasonable suspicion that a
person has committed a criminal offense, that person may be
stopped in order to identify him, to question him briefly, or to
detain him briefly while attempting to obtain additional
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information.'" Parker v. Commonwealth, 255 Va. 96, 104, 496
S.E.2d 47, 52 (1998) (quoting Hayes v. Florida, 470 U.S. 811,
816 (1985)). Thus, regardless of the fact that Walker could not
search Price incident to an offense for which he only could
issue a citation, see Knowles, 525 U.S. 113, the officer could
lawfully detain Price to investigate the Danville ordinance
violation and to issue a summons.
In addition, the officer was permitted to briefly detain
Price, as a passenger in the vehicle, pending the completion of
the traffic stop of the vehicle and the driver. See Harris v.
Commonwealth, 27 Va. App. 554, 561-63, 500 S.E.2d 257, 260-61
(1998) (holding that law enforcement officers are permitted,
following a lawful traffic stop, to detain the occupants of the
vehicle, pending the completion of the traffic stop); see also
Hatcher v. Commonwealth, 14 Va. App. 487, 491-92, 419 S.E.2d
256, 258-59 (1992) (holding that in effecting a traffic stop, an
officer, to ensure his safety and to maintain control of a
potentially hazardous situation, may briefly detain not only the
driver but the passengers as well). In Maryland v. Wilson, 519
U.S. 408, 415 (1997), the United States Supreme Court held that
"an officer making a traffic stop may order passengers to get
out of the car pending completion of the stop." The Court
reasoned that:
danger to an officer from a traffic stop is
likely to be greater when there are
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passengers in addition to the driver in the
stopped car. While there is not the same
basis for ordering the passengers out of the
car as there is for ordering the driver out,
the additional intrusion on the passenger is
minimal.
Id. at 414-15. In Wilson, the Court extended its holding from
Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam), in
which it held that "a police officer may as a matter of course
order the driver of a lawfully stopped car to exit his vehicle,"
to passengers of the vehicle. 519 U.S. at 410. The Court in
Wilson found that the "same weighty interest in officer safety
is present regardless of whether the occupant of the stopped car
is a driver or passenger." Id. at 413.
Thus, Walker lawfully detained Price by directing that he
remain in the vehicle because he was entitled to do so while he
investigated the open container violation and because, under the
circumstances, he could require as a safety precaution that
Price remain in the vehicle while the driver was being issued a
citation. Because Walker's intrusion on Price's privacy rights
and freedom of movement was minimal when weighed against the
officers' safety, the brief detention was lawful.
After Walker shut the car door, effectively ordering him to
remain in the vehicle, Price "threw" the door open a second
time, hitting Walker with the car door as Price attempted to
leap out of the car. Thereafter, Price was subdued and
handcuffed for assaulting a police officer with the car door.
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The officer did not search Price incident to issuing him a
citation for having an open alcoholic beverage container.
Rather, the officer searched Price incident to his lawful arrest
pursuant to Code § 18.2-57(C) for felonious assault of a police
officer. See Robinson, 414 U.S. at 235. Accordingly, we hold
that the trial court did not err by denying Price's motion to
suppress the cocaine.
B. Sufficiency of the Evidence
Price argues that the evidence is insufficient to support his
conviction for assault and battery. Price, relying on Haywood v.
Commonwealth, 20 Va. App. 562, 458 S.E.2d 606 (1995), argues that
the evidence failed to show that he had the requisite intent. He
asserts that he was merely attempting to flee the scene.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).
"The judgment of a trial court sitting without a jury is entitled
to the same weight as a jury verdict, and will not be disturbed on
appeal unless plainly wrong or without evidence to support it."
Beck v. Commonwealth, 2 Va. App. 170, 172, 342 S.E.2d 642, 643
(1986) (citations omitted).
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To sustain a conviction under Code § 18.2-57(C), the
Commonwealth must prove that Price assaulted an individual that he
knew or had reason to know was a police officer engaged in the
performance of his duties. "An assault and battery is an
unlawful touching of another. It is not necessary that the
touching result in injury to the person. Whether a touching is
a battery depends on the intent of the actor, not on the force
applied." Gnadt v. Commonwealth, 27 Va. App. 148, 151, 497
S.E.2d 887, 888 (1998) (citation omitted). "'Intent is a state
of mind that may be proved by an accused's acts or by his
statements and that may be shown by circumstantial evidence.'"
Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74
(1995) (citations omitted). "[A] person is presumed to intend the
immediate, direct, and necessary consequences of his voluntary
act." Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808,
810 (1977) (citation omitted).
Price's reliance on Haywood is misplaced. In Haywood, the
defendant had a verbal altercation with another individual at a
park. After the altercation, the defendant got into his truck
and sped off toward the park exit. The victim promptly called
the police. Three officers in separate vehicles tried to stop
the defendant, who was traveling down the middle of the road at
a high rate of speed. Two officers, individually, set up
roadblocks by placing their vehicles in the defendant's path.
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Each time the defendant approached a roadblock, he failed to
slow down. The officers had to take evasive action to avoid a
collision. The defendant was convicted of two counts of
attempted capital murder of a police officer. We reversed the
convictions, finding that the Commonwealth's evidence failed to
exclude the reasonable hypothesis of innocence, that being the
defendant was merely attempting to avoid apprehension. We
noted, however, that "[t]here was no evidence that [the
defendant] ever swerved or aimed his truck to hit the police
cars when they pulled out of his path or that he turned his
truck around in an attempt to hit the police cars after passing
by them." Id. at 567, 458 S.E.2d at 608-09.
Here, the evidence viewed in the light most favorable to the
Commonwealth proves that, although Price attempted to flee, he
"threw the door open," striking Walker who was standing directly
in front of the door. See Moody v. Commonwealth, 28 Va. App.
702, 708, 508 S.E.2d 354, 357 (1998) (finding that, although the
defendant "plainly sought to flee," the evidence also proved
that he had the further intent to run down the victim with his
vehicle in the process of fleeing). Because Walker was directly
in front of the door, the only possible way Price could have
exited the car through the door was by first striking Walker. The
fact finder could reasonably infer that Price intended to strike
Walker with the car door in order to flee the scene. We,
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therefore, find that the evidence is sufficient to support the
conviction.
Accordingly, we affirm the trial court's ruling denying
Price's motion to suppress and affirm his conviction for felonious
assault and battery of a police officer.
Affirmed.
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