Commonwealth of VA v. Dante Rodriquez Gay, s/k/a ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0131-01-1 JUDGE RUDOLPH BUMGARDNER, III
JUNE 11, 2001
DANTE RODRIQUEZ GAY, S/K/A
DONTE GAY
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Rodham T. Delk, Jr., Judge
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on
briefs), for appellant.
Patrick A. Paciello (Robert O'Neill, Public
Defender, on brief), for appellee.
Dante Rodriquez Gay moved to suppress introduction of a
crack pipe taken from his person. The trial court granted the
motion, and the Commonwealth appeals. We conclude the
Commonwealth lawfully seized the item under the "plain feel"
doctrine and reverse its suppression.
We review the evidence in the light most favorable to the
defendant. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,
407 S.E.2d 47, 48 (1991). While on routine patrol, a Franklin
City police officer observed a beer can on the roof of a parked
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
car. He turned to investigate and saw the defendant put the
beer inside the car. The officer parked his car near the
defendant and asked him about the beer.
The defendant agreed to a pat-down search by the officer.
Having placed his hands on the roof of the car, but before the
pat-down began, the defendant thrust his hand to a side pocket
of his pants. The movement made the officer believe the
defendant had a weapon or contraband in his pocket, so he patted
the pocket. The officer immediately felt what he perceived to
be a crack pipe. The experienced officer had felt similar
objects, and they always proved to be crack pipes. 1 He reached
into the defendant's pocket and extracted a brass tube burned on
the end that tested positive for cocaine. The defendant
concedes the initial encounter and the pat-down were proper.
The trial court found the officer immediately concluded on
patting the pants pocket that the object was a crack smoking
device. That meant he also immediately concluded the object was
not a weapon. The trial court ruled: "In this particular case
I find that [the officer] exceeded the authority of Terry and
the similar cases."
1
Officer Harvey testified that in thirteen years as an
officer, he had handled approximately 230 drug arrests and that
he often found coke stems in pencil pockets. "In the past when
I felt an item like that in a pocket and I went in and got it,
it has always been a crack stem."
- 2 -
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993), extended
the plain view doctrine of Coolidge v. New Hampshire, 403 U.S.
443, 466 (1971), to "tactile discoveries of contraband" and
approved the plain feel doctrine. The Court stated the issue in
Dickerson: "whether police officers may seize nonthreatening
contraband detected during a protective patdown search [for
weapons] of the sort permitted by Terry [v. Ohio, 392 U.S. 1
(1968)]. We think the answer is clearly that they may, so long
as the officer's search stays within the bounds marked by
Terry." 508 U.S. at 373.
The officer immediately identified the object as a crack
pipe, which the defendant concedes has no use except to consume
crack cocaine. It was drug paraphernalia, Code § 18.2-265.1, 2
and subject to seizure and confiscation. Code § 18.2-265.4. 3 If
an officer discovers "contraband other than weapons [during a
search for weapons], he clearly cannot be required to ignore the
contraband, and the Fourth Amendment does not require its
suppression in such circumstances." Michigan v. Long, 463 U.S.
1032, 1050 (1983).
2
"'[D]rug paraphernalia' means all . . . materials of any
kind which are . . . designed for use . . . in . . . ingesting,
inhaling, or otherwise introducing into the human body marijuana
or a controlled substance." Code § 18.2-265.1.
3
"All drug paraphernalia as defined in this article shall
be forfeited to the Commonwealth and may be seized . . . ."
Code § 18.2-265.4.
- 3 -
Under the plain feel doctrine, the officer was not limited
to seizing weapons. He seized the evidence lawfully.
Accordingly, we reverse its suppression.
Reversed and remanded.
- 4 -
Benton, J., dissenting.
Applying the usual standard of review, we must view the
evidence in the light most favorable to Dante Gay, the
prevailing party, and grant to that evidence all reasonable
inferences fairly deducible therefrom. See Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
Moreover, "[i]n our review, 'we are bound by the trial [judge's]
findings of historical fact unless "plainly wrong" or without
evidence to support them.'" Harris v. Commonwealth, 33 Va. App.
325, 330, 533 S.E.2d 18, 20 (2000) (citation omitted).
The trial judge made the following findings in suppressing
the evidence:
This particular case . . . involved an
encounter between the officer and the
defendant, [and] was triggered by a beer can
on the roof of a car. There was
conversation. It's not an issue that --
whether this was a valid Terry stop or not
is not an issue. The stop -- the encounter
was proper. And the patdown for weapons was
proper. But I'll note in the patdown,
whether it was once or twice that the
defendant moved, when he had his two hands
on the car, the defendant, when the officer
got on his side near his pencil pocket, the
defendant once or twice moved his hand down
to the pencil pocket.
I did take this note. On December 12.
And I specifically recall this testimony.
The officer concluded that the defendant
moved his arm to the pocket and I made this
quote, that it was either a weapon or drugs.
That was his comment.
- 5 -
He patted down and immediately concluded
that the object that he felt -- I don't
think he used the word cylindrical. But it
was round and about three inches long. Was
a crack smoking device without even seeing
it. This he concluded from his training and
his experience in dealing with drugs.
But the context of this entire matter was
not about drugs. He was proper in making
the patdown. But once he concluded in this
particular case that -- and this was an
immediate conclusion, not after pulling it
out to see if it was a weapon or not. It
was his immediate conclusion that it was not
a weapon.
In this particular case I find that he
exceeded the authority of Terry and the
similar cases. I've read a number of
Virginia cases. I've even read Ruffin [v.
Commonwealth, 13 Va. App. 206, 409 S.E.2d
177 (1991), a case relied on by the
prosecutor]. I don't find that Ruffin
permits the seizure that occurred in this
case under these facts. Therefore I hold
that the seizure was in violation of the
Fourth Amendment. I'll order that the
evidence be suppressed. I'll note the
Commonwealth's exception.
In Harris v. Commonwealth, 241 Va. 146, 400 S.E.2d 191
(1991), a police officer stopped a vehicle for an equipment
violation after an informant had reported the vehicle would
contain drugs. Id. at 148, 400 S.E.2d at 192. During a frisk
of the passenger for weapons, the officer detected a film
container, which he removed and searched. Id. The Supreme
Court specifically noted that the officer "knew from his
personal experience of working 'plain clothes assignments' and
'making arrests' that certain people kept their narcotics and
- 6 -
drugs in film canisters." Id. at 154, 400 S.E.2d at 196.
Nonetheless, the Court rejected the Commonwealth's argument that
the seizure of the canister and the search of it were lawful,
and the Court ruled as follows:
Certainly, [the] Officer . . . was entitled
to conduct a limited search of Harris to
assure himself that Harris did not have any
weapons in his possession which would have
endangered the officer's safety. Indeed,
the safety of the officer when conducting
his duties is of paramount importance.
However, [the officer's] seizure and search
of the film canister during the weapon
search was not permissible because the
canister was not a weapon and he did not
search the canister for a weapon. Rather,
he had a "hunch" that the canister contained
illegal drugs and therefore conducted a
generalized search. [The officer] gave the
following testimony during the evidentiary
hearing on the motion to suppress:
Question: [W]hen you patted him [Harris]
down for weapons you indicated that you felt
a film canister.
Answer: Yes, sir.
Question: You knew that was not a weapon,
didn't you?
Answer: That's correct.
Question: And what did you think that was?
Answer: I thought it was probably drugs
. . . .
Question: When you felt that film canister,
that meant something to you.
Answer: My first reaction was, 'this is
drugs, it's not film, it's drugs.'
- 7 -
Accordingly, [the officer's] search of
Harris should have ceased once [the officer]
assured himself that Harris possessed no
weapons.
Id. at 151-52, 400 S.E.2d at 194-95.
The evidence in this case is not significantly different.
The officer testified that Gay was wearing "jeans and they have
a long, skinny pocket down the side, down around the thigh
area," which the officer described as "like a handyman would
wear." The officer testified that he frisked the "pencil pocket
on the right side of his pants" and "felt a hard metal item
around three inches long." As in Harris, the officer in this
case testified that he knew the item he felt in Gay's pocket was
not a weapon. Based on this testimony, the trial judge found
that "[i]t was [the officer's] immediate conclusion that it was
not a weapon." Similarly, as in Harris, the officer in this
case testified that his experience and training led him to
believe the item he felt in Gay's pocket was used for smoking
cocaine. Based on this testimony, the trial judge found that
the officer "immediately concluded that the object . . . he felt
. . . [w]as a crack smoking device without even seeing it."
In short, the trial judge found that the officer's
detection of a metal item three inches long, which he knew not
to be a weapon and which he concluded was contraband without
seeing it, was an unlawful seizure. The item was not
intrinsically contraband; it only could be considered
- 8 -
paraphernalia if it had a connection to controlled substances.
See Code §§ 18.2-265.1, 18.2-265.2, and 18.2-265.3. Indeed, the
trial judge specifically found that "the context of this entire
matter was not about drugs." He also implicitly found that the
incriminating character of the object, i.e., that it was "a
crack smoking device," could not have been immediately apparent
to the officer without seeing it.
Where, as here, "an officer who is executing
a valid search for one item seizes a
different item," this Court rightly "has
been sensitive to the danger . . . that
officers will enlarge a specific
authorization, furnished by a warrant or an
exigency, into the equivalent of a general
warrant to rummage and seize at will."
Here, the officer's continued exploration of
[the accused's] pocket after having
concluded that it contained no weapon was
unrelated to "[t]he sole justification of
the search [under Terry:] . . . the
protection of the police officer and others
nearby." It therefore amounted to the sort
of evidentiary search that Terry expressly
refused to authorize, and that we have
condemned in subsequent cases.
Minnesota v. Dickerson, 508 U.S. 366, 378 (1993) (citation
omitted).
The trial judge's findings support his suppression order,
which was analogous to the Supreme Court's ruling in Harris
concerning the film canister. The officer's sense of feel
objectively conveyed only an item that was consistent with a
dowel or rod that might be carried in the pencil pocket of jeans
"like a handyman would wear." The trial judge correctly
- 9 -
concluded that the officer "exceeded the authority of Terry"
when he removed the item. See Dickerson, 508 U.S. at 378
(noting that the officer's conduct "amounted to the sort of
evidentiary search that Terry expressly refused to authorize").
As the trial judge noted, the officer's conclusion that the item
had no legitimate use, "without even seeing [the item]," was a
mere hunch. See Harris, 241 Va. at 154, 400 S.E.2d at 196
(noting that the officer's experience only permitted a "hunch"
that a film canister, which has a legitimate use, was actually a
storage container for cocaine). After merely feeling the
object, the officer, at best, could only have had an ungrounded
suspicion that the item was cocaine paraphernalia. Acting on
his hunch, the officer retrieved the item and determined that
the item was probably a device for using cocaine only after
seeing that it was hollow and contained a residue. Because the
officer did not have probable cause to conclude that the item
was contraband and because he knew it was not a weapon, he had
no authority to remove it during a Terry detention for weapons.
In Arizona v. Hicks, 480 U.S. 321 (1987), a police officer,
who was searching for weapons, saw an item he believed to be
stolen contraband and moved it to expose serial numbers. Id. at
323. Upholding an order suppressing the seizure, the Supreme
Court ruled as follows:
But taking action, unrelated to the
objectives of the authorized intrusion,
which exposed to view concealed . . .
- 10 -
contents, did produce a new invasion of
respondent's privacy unjustified by the
exigent circumstance that validated the
entry. This is why . . . the "distinction
between 'looking' at a suspicious object in
plain view and 'moving' it even a few
inches" is much more than trivial for
purposes of the Fourth Amendment. . . . A
search is a search, even if it happens to
disclose nothing but the bottom of a
turntable.
Id. at 325. Significantly, the Court ruled that a police
officer must have probable cause, not merely reasonable
suspicion, to believe that the discovery of an item during a
search, which was not the focus of the search, is evidence of a
crime or is contraband. Id. at 326.
I believe that the trial judge's factual findings and the
reasonable inferences that flow from those findings support his
conclusion that the seizure of the item from Gay's pocket was
based upon an ungrounded suspicion and, therefore, was unlawful.
Accordingly, I dissent.
- 11 -