Pryor v. Commonwealth , 17 Va. App. 117 ( 1993 )

UPON A REHEARING EN BANC

Opinion

BAKER, J.

On June 16, 1992, by an unpublished memorandum opinion, a panel of this Court affirmed the bench trial convictions of Andre Leon Pryor (appellant) by the Circuit Court of the City of Richmond (trial court) for possession of heroin and possession of a firearm while in possession of heroin. Upon rehearing en banc, we affirm the judgment of the trial court.

The panel majority concluded that this case was controlled by our en banc decision in Bethea v. Commonwealth, 14 Va. App. 474, 419 S.E.2d 249 (1992), aff’d, 245 Va. 416, 429 S.E.2d 211 (1993), and a panel decision in Hatcher v. Commonwealth, 14 Va. App. 487, 419 S.E.2d 256 (1992), which was based in substantial part on Pennsylvania v. Mimms, 434 U.S. 106 (1977).

Citing Lansdown v. Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110 (1983), cert. denied, 465 U.S. 1104 (1984), the Virginia Supreme Court stated in Bethea:

[W]e need not determine whether the de minimis rationale utilized in Mimms is applicable to a passenger in a vehicle when the initial vehicle stop is predicated solely on matters pertaining to the driver. The facts of this case only require the application of the more general principle that Fourth Amendment interests are not violated when a police officer can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

245 Va. at 419, 429 S.E.2d at 213.

The record before us discloses that two members of the City of Richmond Police Strike Force lawfully stopped a vehicle being driven by Arthur Lee Coleman, whom they knew to be a drug dealer with a reputation for violence involving firearms. The officers had information that Coleman was being “protected,” considered him dangerous and believed that he might be carrying a firearm. They arrested him for driving after his license had been suspended and, incident to that arrest, began to search his car. To complete the search, they asked appellant, who was a front-seat passenger, to step out of the car. Appellant appeared nervous and indicated a desire to leave the scene. Officer Talbert, a member of the Police Strike Force, believed that these circumstances required a pat-down search for weapons for safety reasons. During the search, he discovered a .44 Magnum “tucked in front of [appellant’s] pants” and arrested him for unlawfully carrying a concealed weapon. Incident to that arrest, a thorough search of appellant was conducted and approximately twenty-seven packets containing heroin were found in appellant’s pants pockets.

Without accepting or rejecting the reasons expressed in our decisions in Bethea and Hatcher, and the cases cited therein, we find that upon the totality of the circumstances shown by the evidence in the case before us, the officers did not violate appellant’s Fourth Amendment rights.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

Moon, C.J., Barrow, X, Coleman, X, Willis, X, Elder, X, Bray, X, and Fitzpatrick, X, concurred.