Edward Brian Williams v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia
EDWARD BRIAN WILLIAMS
MEMORANDUM OPINION * BY
v. Record No. 2854-01-1 JUDGE LARRY G. ELDER
MAY 13, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Robert B. Cromwell, Jr., Judge
Roger K. Grillo for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Edward Brian Williams (appellant) appeals from his bench
trial convictions for breaking and entering, petit larceny, and
possession of cocaine. On appeal, he contends the trial judge
erred in denying his motion to suppress both his confession and
cocaine that was seized during a search of his pocket. We hold
the denial of the motion to suppress was not error because,
although the officer lacked reasonable suspicion to believe
appellant was armed and dangerous, the officer had probable cause
to arrest appellant for breaking and entering and larceny prior to
frisking and questioning him. Thus, we affirm the convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
The evidence proved that William Sleeth was going to his
residence when he saw a microwave oven on appellant's porch.
Later, while Sleeth was visiting a neighbor, appellant approached
the two men and asked if they were interested in purchasing a
microwave oven. After Sleeth determined it was the same microwave
oven he had earlier seen on appellant's porch, both declined
appellant's offer. When Sleeth left his neighbor's residence, he
noticed that the door on Amos Parsons's residence "was sticking
out quite a distance." Because this appeared unusual and Parsons
was his friend, Sleeth decided to investigate. He noticed
Parsons's microwave oven was missing and "recollected the one
[appellant had offered to sell him] looked like" Parsons's
microwave oven. Sleeth was "pretty familiar" with Parsons's
microwave because he had "used it quite frequently" when he lived
with Parsons for a week.
After Sleeth contacted Parsons, Parsons called the police and
reported a burglary and theft of his microwave oven. When Officer
Robbie Fisher and another officer responded, Sleeth described
appellant's attempt to sell a microwave. As this was occurring,
Officer Fisher saw appellant exit a car and walk to his residence.
Officer Fisher, who had known appellant for almost twenty years,
said he believed appellant had both a "drinking problem" and a
"drug problem."
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Officer Fisher approached him and asked him "if he had any
knowledge about the microwave that was stolen from Mr. Parsons."
Appellant said he had no knowledge of it. Officer Fisher then
advised appellant that "[he] had a witness that said . . .
[appellant] did have the [stolen] microwave earlier in the
evening" (emphasis added), and Fisher asked if appellant would
come to the police station to resolve the matter. Appellant did
not object or respond in any way.
Officer Fisher testified that he did not arrest appellant but
"advised [appellant he] was going to pat him down before placing
him in the police car." As Officer Fisher "started going toward
[appellant] to pat him down," appellant raised his arms. The
officer also testified that he had no reason to suspect appellant
was armed and dangerous. Instead, for his own safety and the
safety of the officer who would be in the car with him and
appellant, Fisher "just wanted to pat [appellant] down just to
make sure" he was unarmed.
While conducting the pat-down, Officer Fisher felt a "small
cylinder type round object" in appellant's front jacket pocket.
He removed it and said to appellant, "[T]his is a crack pipe."
After appellant and Officer Fisher discussed the pipe, Fisher
transported him to the police station. At the police station,
appellant waived his Miranda rights and made a statement to
Fisher. Appellant admitted that he broke into Parsons's residence
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and took a microwave oven. He said he took the microwave because
Parsons owed him money.
Appellant was charged with the instant offenses and moved to
suppress. He argued Officer Fisher lacked reasonable suspicion to
believe he was armed and dangerous and could have avoided any
threat to his safety by "interrogat[ing]" appellant at the scene
rather than transporting him to the station. The Commonwealth
argued reasonable suspicion of a completed crime was sufficient to
support a frisk when coupled with the heightened safety risk
presented by an officer's traveling with a suspect in a vehicle.
The trial court held (1) that Officer Fisher acted reasonably in
approaching appellant to question him about the burglary and (2)
that frisking appellant prior to transporting him in Fisher's
police cruiser was reasonable to ensure the officers' safety.
The court subsequently tried appellant on pleas of not guilty
and convicted him of breaking and entering, possession of cocaine,
and petit larceny.
II.
On appeal of a ruling on a motion to suppress, we view the
evidence in the light most favorable to the prevailing party, here
the Commonwealth, granting to the evidence all reasonable
inferences deducible therefrom. Commonwealth v. Grimstead, 12
Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by
the trial court's findings of historical fact unless 'plainly
wrong' or without evidence to support them," McGee v.
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Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en
banc), but we review de novo the trial court's application of
defined legal standards such as probable cause and reasonable
suspicion to the particular facts of the case, Ornelas v. United
States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d
911 (1996).
Under settled principles, in order to conduct a pat-down
weapons frisk, an officer must (1) rightly be in the presence of
the party frisked so as to be endangered if the person is armed,
see 4 Wayne R. LaFave, Search and Seizure § 9.5(a), at 246 (3d ed.
1996), and (2) have reasonable suspicion that the person may, in
fact, be armed and dangerous, see, e.g., Phillips v. Commonwealth,
17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993). The requirement
that an officer be rightly in the presence of the person frisked
means that the officer must have a duty to be in the person's
presence, such as to conduct an investigatory stop or to arrest
some other person. See LaFave, supra, at 247 (citing Terry v.
Ohio, 392 U.S. 1, 32-33, 88 S. Ct. 1868, 1885-86, 20 L. Ed. 2d 889(1968) (Harlan, J., concurring)). "[A] frisk for self-protection
cannot be undertaken when the officer has unnecessarily put
himself in a position of danger by not avoiding the individual in
question." Id.Here, at the hearing on his motion to suppress, appellant
said Officer Fisher could have "interrogated him" at the scene and
argued only that Officer Fisher lacked reasonable suspicion to
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believe he was armed and dangerous, thereby implicitly conceding
the existence of reasonable suspicion for the detention and
questioning. The trial court held Officer Fisher's frisking
appellant was reasonable because Fisher (1) had reasonable
suspicion to believe appellant had committed the burglary1 and (2)
1
The trial court made the following statement in denying
the motion:
[T]he evidence clearly indicates to the
court that Officer Fisher responded to a
possible burglary. When he got there he
spoke to the victim who was missing a
microwave. Then he spoke to the neighbor
across the street who said that [appellant]
tried to sell him a microwave, so I don't
find it unusual at all that . . . Officer
Fisher[] approached [appellant] knowing his
history ranging from alcohol to drugs.
[Appellant] made no objection to going down
to the station and being questioned. I
can't imagine a police department in the
United States that doesn't have as a matter
of policy you must search somebody before
you put them in a cruiser to transport them.
The officer said he did it for his own
safety. I find nothing unreasonable or
unusual about the officer's actions . . . .
Although the trial court did not use the words, "reasonable
suspicion," the court's recitation of the above facts, viewed in
conjunction with the Commonwealth's argument that Officer Fisher
had reasonable suspicion to believe appellant had been involved
in a completed crime, support the conclusion that the trial
court simply adopted the Commonwealth's argument as the basis
for its denial of the suppression motion.
Further, "[a]bsent clear evidence to the contrary in the
record, the judgment of a trial court comes to us on appeal with
a presumption that the law was correctly applied to the facts."
Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286,
291 (1977). Here, as discussed infra in the text, clear
evidence in the record establishes only that the trial court
erred in upholding the pat-down because no evidence proved
appellant may have been armed and dangerous and Officer Fisher
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was about to transport appellant in his police cruiser. These
facts, standing alone, were insufficient to justify the frisk.
The trial court did not find appellant was armed and dangerous,
and Officer Fisher expressly testified he had no reason to believe
appellant was armed and dangerous. Thus, the trial court's stated
basis for denying the suppression motion was erroneous.
Nevertheless, if Officer Fisher had probable cause to arrest
appellant, the frisk of appellant was lawful as a search
incident to arrest. Rawlings v. Kentucky, 448 U.S. 98, 111, 100
S. Ct. 2556, 2564-65, 65 L. Ed. 2d 633 (1980) (holding search
may precede formal arrest so long as police have probable cause
to arrest at time of search). Although Officer Fisher testified
he did not arrest appellant before the frisk search, that
circumstance is not dispositive of Fisher's right to search
incident to arrest. Id.In determining whether an officer had probable cause to
arrest, "the officer's subjective beliefs are irrelevant."
Dickerson v. Commonwealth, 35 Va. App. 172, 183, 543 S.E.2d 623,
expressly testified he had no basis for harboring such a belief.
Based on the presumption and the existence of evidence to
support a finding that Officer Fisher had reasonable suspicion
to believe appellant committed the burglary and theft, we
conclude the trial court made this preliminary finding before
concluding erroneously that the need to assure officer safety
during such an encounter supported the weapons frisk.
Thus, we hold the trial court's denial of the motion
constituted a ruling that Officer Fisher had reasonable
suspicion for the detention and questioning.
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628 (2001); see also Whren v. United States, 517 U.S. 806,
812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996).
The legal standard of probable cause, as the
term suggests, relates to probabilities that
are based upon the factual and practical
considerations in everyday life as perceived
by reasonable and prudent persons. The
presence or absence of probable cause is not
to be examined from the perspective of a
legal technician. Rather, probable cause
exists when the facts and circumstances
within the officer's knowledge, and of which
he has reasonably trustworthy information,
alone are sufficient to warrant a person of
reasonable caution to believe that an
offense has been or is being committed.
Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836
(1981).
The evidence, viewed in the light most favorable to the
Commonwealth, proved that when Officer Fisher first approached
appellant, he knew someone had broken into Parsons's trailer and
taken his microwave oven. Officer Fisher was aware that
appellant had a "drug problem." Sleeth told Officer Fisher he
had seen a microwave oven on appellant's porch earlier and that
appellant had offered to sell the microwave to him. Officer
Fisher told appellant a witness "said [appellant] [had] the
[stolen] microwave earlier in the evening." Sleeth testified at
trial that he was "pretty familiar" with Parsons's microwave
oven because he had "used it quite frequently" and had cooked
meals in it when he lived with Parsons for a week.
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We hold this evidence established that Officer Fisher had
probable cause to believe appellant possessed the microwave that
had been taken by burglary from Parsons's residence. Once the
police have probable cause to arrest, it is not "particularly
important that the search preceded the arrest rather than vice
versa." Rawlings, 448 U.S. at 111, 100 S. Ct. at 2564.
Therefore, the trial judge did not err in denying the motion to
suppress.
It is true that the issue of probable cause to arrest was
not expressly presented to the trial court and that the record
contains no indication the trial court considered this issue
directly. 2 Nevertheless, appellant implicitly conceded the
2
A panel of this Court previously stated in dicta that the
right-result-wrong-reason doctrine "may not be used if the
correct reason for affirming . . . was not raised in any manner
at trial." Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417
S.E.2d 312, 313-14 (1992). However, a majority of this Court,
sitting en banc, recently implicitly refused to apply that
principle where the majority believed that application of the
right-result-wrong-reason doctrine did not require findings of
fact in addition to those already made by the trial court.
McCracken v. Commonwealth, 39 Va. App. 254, 260-62, 572 S.E.2d
493, 496-97 (2002) (en banc) (on appeal of conviction based in
part on trial court's ruling that officer had reasonable
suspicion to perform weapons frisk that led to discovery of
marijuana, holding frisk was justified by existence of probable
cause to arrest defendant for trespass without discussing fact
that "existence of probable cause to arrest for trespass or any
other crime was not raised at trial as a basis for justifying"
search, McCracken, 39 Va. App. at 272, 572 S.E.2d at 502 (Elder,
J., concurring in part and dissenting in part)); id. at 272, 572
S.E.2d at 502 (Elder, J., concurring in part and dissenting in
part) (noting that "the trial court gave no indication that it
considered [the issues of probable cause to arrest for trespass
or standing to challenge the deputy's entry of the residence
where the frisk occurred] or made any of the additional factual
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existence of reasonable suspicion to "interrogate[]" him about
the burglary and theft; the Commonwealth expressly argued the
existence of reasonable suspicion regarding theft of the
microwave; and the trial court held Officer Fisher had
reasonable suspicion for the detention and questioning. In
concluding on appeal that Officer Fisher had probable cause to
arrest, we hold only that the uncontested facts establishing
reasonable suspicion also proved the "greater" legal theory of
probable cause to arrest. See McLellan v.Commonwealth, 37
Va. App. 144, 155, 554 S.E.2d 699, 704 (2001) (noting that
doctrine permitting appellate court to affirm on alternate
ground requires that "the correct reason and its factual basis
were presented at trial"); Driscoll v. Commonwealth, 14 Va. App.
449, 452, 417 S.E.2d 312, 314 (1992) (holding doctrine does not
apply if additional factual findings are required). Under these
facts, the theory on which we affirm was before the trial court
by implication. Compare Eason v. Eason, 204 Va. 347, 352, 131
S.E.2d 280, 283 (1963) (holding Court could not affirm on ground
different from that applied by trial court because doing so
would require Court to "recognize and uphold a different
defense[,] . . . estoppel by inconsistent conduct, based upon
the releases, [which] was not properly asserted in the
findings critical to . . . resolution [of those issues]" beyond
a subsidiary finding that the person who telephoned police about
the defendant's presence in the house was its owner).
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pleadings" and was not "before [the trial court] . . . in any
manner").
Accordingly, we affirm the convictions.
Affirmed.
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Benton, J., dissenting.
The Commonwealth argues on appeal that Officer Fisher's
search of Edward Brian Williams was a search incident to arrest.
At the suppression hearing and at trial, however, the
Commonwealth's attorney did not make this argument. Indeed,
prior to this appeal, the Commonwealth never asserted that the
officer had probable cause to arrest Williams when he searched
him.
At the hearing on the motion to suppress the evidence, the
Commonwealth's attorney argued the frisk was lawful because "it
was reasonable for the officer to have a fear that [Williams]
may be armed and dangerous . . . when he's getting into a
[police] vehicle where both the officers are in the front seat
with their backs turned to the defendant." When the judge
considered the arguments and ruled on the motion, he made
findings that do not suggest he ever considered this matter
through the prism of a Terry analysis. He found as follows:
Officer Fisher responded to a possible
burglary. When he got there he spoke to
[Parsons] who was missing a microwave. Then
he spoke to the neighbor across the street
who said that [Williams] tried to sell him a
microwave, so I don't find it unusual at all
that this officer, Officer Fisher,
approached [Williams] knowing his history
ranging from alcohol to drugs. The
defendant made no objection to going down to
the station and being questioned. I can't
imagine a police department in the United
States that doesn't have as a matter of
policy you must search somebody before you
put them in a cruiser to transport them.
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These findings do not indicate the judge found that the
neighbor informed the officer he recognized the microwave to be
the same or similar to the one taken from Parsons's residence.
No evidence proved how close the neighbor was to the microwave
oven when he saw it on Williams's porch. The officer merely
testified that Parsons and the neighbor were explaining to him
that Williams "had offered [the neighbor] the microwave earlier
in the evening." Indeed, the judge found that the neighbor said
Williams "tried to sell him a microwave." (Emphasis added).
The issue whether this evidence established either
reasonable suspicion or the greater standard of probable cause
was not before the trial judge. The trial judge, therefore, did
not make factual determinations about what the officer knew
concerning the prior thefts or the identity of the microwave
oven. Consequently, he made no findings to establish whether
the evidence was sufficient for either reasonable suspicion or
probable cause.
Our appellate review is circumscribed by the issues put
forth in the arguments advanced at trial and the judge's ruling.
We have held that this limitation on our power occurs when the
suggested alternative "reason for affirming the trial [judge]
was not raised in any manner at trial" and "where, because the
trial [judge] has . . . confined [the] decision to a specific
ground, further factual resolution is needed." Driscoll v.
Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313-14
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(1992). See also Stateren v. Montgomery Ward and Co., 234 Va.
303, 305-06, 362 S.E.2d 324, 326 (1987) (finding the "right
result wrong reason" rule inappropriate because the trial judge
confined his decision to a specific ground); Sheler v.
Commonwealth, 38 Va. App. 465, 475 n.1, 566 S.E.2d 203, 208 n.1
(2002) (holding that because the trial judge limited his
analysis and failed to resolve a factual matter this Court will
not reach the alternate issue).
The trial judge's findings only reflect the judge's belief
that Williams volunteered to go to the police station for
questioning. Relying on the officer's testimony that "he
[frisked Williams] for his safety," the trial judge found
"nothing unreasonable or unusual about the officer's actions and
[denied] the suppression motion." In so finding, the trial
judge apparently relied on his intuition because the officer
unambiguously testified that he did not suspect Williams was
armed and dangerous and that he did not arrest Williams.
The evidence proved that when the officer frisked Williams,
he had not arrested Williams, had not sought or obtained
Williams's consent for the frisk, and had no apprehension that
Williams was armed and dangerous. The officer testified that
Williams had agreed to get into the police car with the two
officers and accompany them to police headquarters to discuss
the complaint. He also testified Williams was free not to go to
the station with the officers. Thus, the officer testified that
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he searched Williams solely because he was entering the police
car. We held in Sattler v. Commonwealth, 20 Va. App. 366, 457
S.E.2d 398 (1995), that such a search was unreasonable.
The Fourth Amendment prohibits
unreasonable searches and seizures.
"Whether a search . . . is unreasonable is
determined by balancing the individual's
right to be free from arbitrary government
intrusions against society's countervailing
interest in preventing or detecting crime
and in protecting its law enforcement
officers." To conduct a patdown search, a
police officer must be able to "'"point to
specific and articulable facts which, taken
together with rational inferences from those
facts,"' reasonably lead him to conclude,
'in light of his experience, that "criminal
activity may be afoot" and that the suspect
"may be armed and presently dangerous."'"
. . . [W]e [have] held that it was
unreasonable for police officers to conclude
that a person on a motor scooter was armed
and dangerous because a police officer saw a
bulge in the person's pocket following a
traffic stop.
The evidence at the suppression hearing
failed to prove that the officer had
specific and articulable facts upon which to
conclude that [the individual] was armed and
dangerous. The officer initially detained
[him] solely for the purpose of issuing a
summons for a traffic infraction. [He] was
not under arrest. The officer offered no
reason to support a belief that [he] was
armed or dangerous or that he possessed
illegal drugs.
The officer searched [him] solely because
of his general policy of searching every
person entering his vehicle. In every
encounter, "Terry requires reasonable,
individualized suspicion before a frisk for
weapons can be conducted." The officer's
generalized policy of frisking all persons
does not satisfy the restrictions imposed by
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Terry. "Indeed, if everyone is assumed to
be armed and dangerous until the officer is
satisfied that he or she is not, then
officers would be able to frisk at will -- a
result not contemplated by the Fourth
Amendment."
Id. at 368-69, 457 S.E.2d at 399-400 (citations omitted). See
also Harrell v. Commonwealth, 30 Va. App. 398, 517 S.E.2d 256(1999).
For these reasons, I would hold that the trial judge erred
in ruling that the frisk of Williams was a reasonable search
under the Fourth Amendment and, consequently, he erred in not
suppressing the cocaine and the confession. See Davis v.
Commonwealth, 37 Va. App. 421, 435, 559 S.E.2d 374, 380 (2002).
Thus, I would reverse the convictions.
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