Opinion
Criminal Docket No.: CR11-3689
06-12-2012
RE: Commonwealth of Virginia v. Arthur Cherry
Mary E. Richardson, Esquire Office of the Commonwealth's Attorney 800 E. City Hall Avenue, Suite 600 Norfolk, Virginia 23510 Mark S. Uhtecht, Esquire Office of the Public Defender 125 St. Paul's Boulevard, Suite 600 Norfolk, Virginia 23510
COPY JUNIUS P. FULTON III JUDGE Mary E. Richardson, Esquire
Office of the Commonwealth's Attorney
800 E. City Hall Avenue, Suite 600
Norfolk, Virginia 23510 Mark S. Uhtecht, Esquire
Office of the Public Defender
125 St. Paul's Boulevard, Suite 600
Norfolk, Virginia 23510 Dear Counsel:
The Court has considered your briefs in opposition and support of the Defendant's Motion to Suppress in the above referenced matter. In consideration of the motion, the Court makes the following findings of fact.
On September 13, 2011, at approximately 3:20 a.m., Officer Roberson and his partner, Officer O'Keefe, initiated a traffic stop of a blue Honda Accord for a defective license plate light and suspected illegal window tint. (Tr. p. 6-8). According to Officer Robertson, the stop was initiated with lights and siren and the suspect vehicle immediately pulled over. (Tr. p. 10). Officer Roberson approached the passenger's side of the vehicle, and Officer O'Keefe approached the driver's side and asked the driver to roll the windows down. (Tr. p. 11). The suspect vehicle contained two occupants in addition to the driver; one occupant was seated in the front passenger seat, and Defendant was seated in the rear on the passenger's side of the vehicle. Id. When the windows were rolled down, Officer Roberson observed the odor unburnt marijuana emanating from the vehicle, (Tr. p. 11, 15), while Officer O'Keefe smelled burnt marijuana, (Tr. p. 85). Officer Roberson testified that he was unable to localize the source of the odor. (Tr. p. 12). Neither officer observed any smoke. (Tr. p. 46, 85).
Officer Roberson recovered Defendant's identification, (Tr. p. 11), and observed that "[Defendant's] breathing had become heavy," and he "kept leaning forward, like he wanted to say something to the passenger that was sitting in front of him." (Tr. p. 13). Warrant checks on all three occupants of the vehicle came back negative. (Tr. p. 49). After running the identification for the driver, Defendant, and the third occupant, Officer Roberson called for backup to help detain the occupants in order to further investigate the odor of marijuana. (Tr. p. 14, 16). While waiting for the responding unit, Officer Roberson observed that Defendant appeared "nervous," was breathing heavily, and "continued to lean forward." (Tr. p. 17).
Officers Oyola and Garcia responded to the call for backup and arrived shortly thereafter. Officer Roberson informed Defendant that the officers were going to remove him from the car and that he "was not being arrested," but "was being detained." (Tr. p. 19). Officer Garcia assisted Officer Roberson with the removal of Defendant from the vehicle. (Tr. p. 17). Officer Roberson then opened the rear passenger's side door and grabbed Defendant's right arm. (Tr. p. 19). Officer Garcia grabbed Defendant's left arm. Id. Defendant was removed from the vehicle, his hands were placed behind his back, and he was immediately handcuffed. (Tr. p. 54). Up to the moment in which he was handcuffed, Defendant had not made any aggressive movements, (Tr, p. 54), and had not made any attempt to escape or evade the officers, (Tr. p. 57). Officer Garcia indicated that he smelled marijuana when the Officer Roberson opened the door, but was unsure whether the marijuana smelled burnt or unburnt. (Tr. p. 95). Officer Oyola, standing five to six feet away from Officers Roberson and Garcia, did not smell marijuana. (Tr. p. 105).
After Defendant was removed from the vehicle, Officer Roberson observed an unidentifiable bulge that protruded a couple of inches from the right side of Defendant's waistband. (Tr. p. 19, 57-58). Defendant made no effort to reach for the bulge. (Tr. p. 58). Officer Roberson had not seen the bulge until Defendant's hands were behind his back and he had been placed in handcuffs. (Tr. p. 20, 58). Officer Roberson placed his hand on the bulge and felt what appeared to him to be the grip of a gun. (Tr. p. 19). Officer Roberson exclaimed, "That's a gun," at which point Officer Garcia lifted Defendant's shirt to reveal the butt of a handgun. (Tr. p. 20). Officer Oyola retrieved the handgun from Defendant's waistband. (Tr. p. 91, 101). Officer Garcia escorted Defendant to his police unit, searched Defendant again, and found a second gun inside Defendant's pants on his left hip. (Tr. p. 91). Defendant was placed under arrest 28 minutes after the traffic stop was initiated. (Tr. p. 23).
Before delving into a discussion of the Fourth Amendment and the pertinent cases dealing with traffic stops, the Court will take this opportunity to address the officers' testimony with regard to the smell of marijuana purportedly emanating from the vehicle. To begin, their testimony was inconsistent and unsupported by what was discovered in the subsequent search of the vehicle. Officer Roberson testified that he smelled unburnt marijuana immediately upon the windows being rolled down. (Tr. p. 11, 15). Officer O'Keefe, on the other hand, smelled burnt marijuana when the windows were rolled down, (Tr. p. 85); however, no smoke was observed by either of the officers. (Tr. p. 46, 85). Officer Garcia smelled marijuana only when the rear passenger door of the vehicle was opened, despite the fact that the windows were rolled down, but could not indicate whether the marijuana was burnt or unburnt. (Tr. p. 95). Officer Oyola, who testified to being five to six feet away from the vehicle, stated that he never smelled marijuana. (Tr. p. 105). The officers were unable to localize the smell of marijuana to any of the vehicle's occupants. (Tr. p. 12, 76), Furthermore, a subsequent search of the vehicle revealed only "small pieces" of "suspected marijuana" throughout the vehicle, (Tr. p. 60, 75-76), however, the officers never tested the suspected pieces and their existence was not noted in the officers' police report, (Tr. p. 61, 85). No smoking devices were recovered from the vehicle, and no warrants were issued to any of the vehicle's occupants for possession of marijuana. (Tr. p. 76). The Court agrees with the testimony of Arthur Kay, an investigator for the Norfolk Public Defender's Office, and a former police officer and investigator in the Vice and Narcotics Division of the Norfolk Police Department. (Tr. p. 122-23). According to Kay, unburnt marijuana is difficult to detect unless it is present in large quantities. (Tr. p. 125). Kay testified that a "significant amount," approximately two to five pounds, would be required to emit a strong odor. (Tr. p. 125). The Court will therefore disregard the officers' testimony regarding the smell of marijuana, as the only evidence of the odor is the officers' own inconsistent testimony, and the existence of marijuana is otherwise entirely unsupported by the evidence.
In his Motion to Suppress, Defendant asserts that the manner in which the detention was effected exceeded what was legally appropriate under the circumstances rendering the detention illegal. The Court agrees.
"An officer may effect a traffic stop when he has reasonable suspicion to believe a traffic or equipment violation has occurred." McCain v. Commonwealth, 275 Va. 546, 553 (2008). In McCain, an officer initiated a traffic stop after observing a vehicle improperly back out into the street and noted that the plastic border of the license plate at the rear of the vehicle covered the expiration date stickers. Id. at 550. The Court ruled that the officer had probable cause to stop the vehicle in which the defendant was a passenger. Id. at 553. Here, Officers Roberson and O'Keefe had probable cause to stop the vehicle in which Defendant was a passenger upon observing two equipment violations: (1) a defective license plate light and (2) suspected illegal window tint. Defendant does not challenge the legality of the initial traffic stop.
According to the Supreme Court of Virginia:
A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.Jones v. Commonwealth, 279 Va. 665, 673 (2010) (quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009)). "[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977). The government's "legitimate and weighty" interest in officer safety outweighs the "de minimis" additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle. Id. at 110-111. The Supreme Court has applied the holding in Mimms to passengers and drivers equally, stating that "an officer making a traffic stop may order passengers to get out of the car pending completion of the stop." Maryland v. Wilson, 519 U.S. 408, 415 (1997); see McCain, 275 Va. at 553 (stating that "[d]uring the course of a traffic stop, an officer may take certain steps to protect himself, such as asking the driver and any passengers to exit the vehicle").
"It is well established that a police officer making a routine traffic stop may order a passenger out of the car for safety reasons, even if the officer has no reason to suspect the passenger of criminal behavior." Atkins v. Commonwealth, 57 Va. App. 2, 9 (2010) (citing Mimms, 434 U.S. at 111), Therefore, the officers in the instant case were permitted to order Defendant out of the vehicle without maintaining an individualized suspicion that he was involved in criminal activity. "[P]olice officers may also detain passengers beside an automobile until the completion of a lawful traffic stop." McCain, 475 Va. at 553 (quoting Harris v. Commonwealth, 27 Va. App. 554, 562 (1998)). However, "when an officer makes a lawful traffic stop, the scope of the temporary detention may not exceed the purpose of the stop." Dickerson v. Commonwealth, 35 Va. App. 172, 177-78 (2001) (citing Florida v. Royer, 460 U.S. 491, 500 (1983)), aff'd, 266 Va. 14 (2003). "It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure." Lawrence v. Commonwealth, 40 Va. App. 95, 101 (2003) (citing Royer, 460 U.S. at 500).
It has been recognized that "[during an investigative detention] police procedures can...be so intrusive...as to trigger the full protection of the Fourth and Fourteenth Amendments." DePriest v. Commonwealth, 4 Va. App. 577, 586 (1987) (quoting Hayes v. Florida, 470 U.S. 811, 815-16 (1985)) cert. denied, 488 U.S. 985 (1988). "[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Royer, 460 U.S. at 500 (1983); see Hamlin v. Commonwealth, 33 Va. App. 494, 501-502 (2000); Thomas v. Commonwealth, 16 Va. App. 851, 856-857 (1993). The U.S. Supreme Court has acknowledged that there is no "litmus-paper test for distinguishing...when a seizure exceeds the bounds of an investigative stop." Royer, 460 U.S. at 506-07. "[I]n evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria." De Priest v. Commonwealth, 4 Va. App. 577, 586 (1987) (quoting U.S. v. Sharpe, 470 U.S. 675, 685 (1985)).
In Thomas v. Commonwealth, 16 Va. App. 851 (1993), an officer received a call regarding a stabbing at a nearby location. While patrolling, the officer observed Thomas who matched a description of the suspect. The officer asked Thomas to walk over to his police unit. The officer advised Thomas that the police were searching for a person matching his description, frisked Thomas for weapons, and asked Thomas if he would participate in a showup. Thomas agreed. Thomas was placed in handcuffs and transported in the rear seat of the police unit to the victim's residence nearby. The officer testified that Thomas was not under arrest at that point. The victim identified Thomas as the assailant. Thomas was arrested and taken into custody.
The Court of Appeals held that the use of handcuffs and the transportation of Thomas in the police unit for an immediate showup did not transform the initial detention into an arrest. Id. at 857. "Brief, complete deprivations of a suspect's liberty, including handcuffing, do not convert a stop and frisk into an arrest so long as the methods of restraint used are reasonable to the circumstances." Id. (quoting United States v. Crittendon, 883 F.2d 326, 329 (4th Cir. 1989)). The officer's "caution was justified and prudent, and his use of handcuffs was not unreasonable," considering that it was dark, the officer was alone, and that Thomas was suspected of involvement in a serious, violent, and recent crime. Id. Moreover, Thomas had been advised of the specific, limited purpose of the detention and agreed to cooperate. Id. Therefore, the record disclosed that the officer "diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Id. at 857-58 (quoting DePriest, 4 Va. App. at 587). The court held that the "detention was neither unreasonable nor conducted under circumstances that constituted the functional equivalent of an arrest." Id. at 858.
In Commonwealth v. Hairston, 2010 Va. App. LEXIS 333, an officer received a police dispatch that shots had been fired at a nearby restaurant. Dispatch stated that the suspect left the scene in a "dark colored Dodge Durango." The officer observed a vehicle matching the description driving at a high rate of speed in the vicinity of the restaurant. The officer noted that the vehicle's license plate tags were expired. The officer called for backup. When the vehicle stopped at a traffic light, the officer activated his emergency lights, exited his patrol car, and approached the Durango with his gun drawn. The officer commanded the driver of the Durango to turn the vehicle off, put the keys outside, step out with his hands up, walk backwards toward the officer, and then get down on his knees and interlock his fingers on top of his head. Hairston, the driver of the Durango, complied with the officer's commands. Another officer, responding to the call for backup, arrived, and with his gun drawn, approached Hairston from behind and placed him in handcuffs. Hairston told the officer that he had "a gun in his right front pocket," in response to the officer's questioning. The officer had Hairston stand up and noticed the bun of a firearm protruding from his front pocket. Hairston was charged with possession of a concealed weapon, and possession of a firearm by a convicted felon. The trial court granted Hairston's motion to suppress ruling that defendant was illegally seized in violation of the Fourth Amendment. The Commonwealth appealed.
The appellate court concluded that the trial court erred in granting Hairston's motion to suppress evidence seized from him. Id. at 10. Given the radio dispatch the officer had received, he had reason to believe the operator of the Durango might be armed and dangerous. Id. at 9. Based on the record on appeal, the court concluded that the officer's "detention [of Hairston] was neither unreasonable nor conducted under circumstances that constituted the functional equivalent of an arrest," Id. at 10 (quoting Thomas, 16 Va. App. at 858), considering that the vehicle driven by Hairston matched the description of the shooter's vehicle and was found in close temporal and geographic proximity to the shooting. Id. The officers did not exceed the bounds of Terry in the manner in which they detained Hairston. Id.
In Johnson v. Commonwealth, 20 Va. App. 49 (1995), two officers were conducting surveillance in a known drug area pursuant to information they had received from reliable informants. The informants told the officers that Johnson would be traveling in a specific car while selling drugs. A criminal record check disclosed Johnson's prior felony convictions for sale of narcotics, robbery and burglary. The officers followed the described vehicle. The officers approached the vehicle when it came to a stop. One officer approached Johnson, who was a passenger in the front seat. The officer asked Johnson to step out of the car and placed him in handcuffs, believing it was necessary for the officers' safety. The officer explained to Johnson that he was not under arrest. Johnson consented to being searched. A search of Johnson and the vehicle revealed drugs and a handgun.
The Court of Appeals upheld the trial court's denial of Johnson's motion to suppress, holding that the officers did not exceed the proper scope of the Terry stop by placing Johnson in handcuffs. Id. at 54. The court observed that the location in which the stop occurred was dark, that Johnson was large and powerful, that he was suspected of carrying a weapon, and that two other individuals were in the car. Id. Under these circumstances, the court held that the use of handcuffs was not unreasonable and that the officers were justified in taking precautions for their own safety. Id.
In Harris v. Commonwealth, 27 Va. App. 554 (1998), an officer lawfully stopped a vehicle for investigatory purposes after observing the car being driven in excess of the speed limit and make improper lane changes. Harris was a passenger in the front seat of the vehicle. The officer stopped the vehicle. As the officer exited his police unit, Harris opened the passenger side door and leaned over as if he was reaching for something. Harris then exited the vehicle, appeared "nervous and jittery," and look a few steps in the officer's direction. The officer commanded Harris to stay where he was and to show his hands. When Harris failed to comply with the officer's request, the officer drew his weapon, pointed it at Harris, and again ordered him to show his hands. Harris did not comply. Another officer arrived and escorted Harris to the side of the vehicle. Harris was subsequently arrested and charged after a search revealed drugs. The trial court denied his motion to suppress, concluding that Harris was lawfully detained after he exited the vehicle. Harris appealed.
On appeal, the court concluded that the officers did not unlawfully detain Harris. Id. at 561. During Terry stops, the police are permitted to use methods of restraint that are reasonable under the circumstances. Id. at 563. When the officers detained Harris, they acted reasonably, as required by the Fourth Amendment, to protect their safety and maintain the status quo during the course of the investigatory traffic stop. Id. at 562. The officer's display of his firearm prior to the arrival of the other officers was a reasonable response to Harris' failure to show his hands while moving in the officer's direction. Id. at 563.
In Scott v. Commonwealth, 2009 Va. App. LEXIS 251 (2009), two officers observed a vehicle fail to properly obey a stop sign. After initiating a traffic stop, the officers approached the vehicle. One officer recognized Scott, who was sitting in the passenger seat, as having prior arrests for drugs and weapons violations. The officer also noticed a hand-rolled cigar in plain view, which he "immediately thought was a blunt." At that point, the officers began to remove the occupants from the vehicle in order to retrieve the contraband. When the officer began to handcuff Scott, he attempted to flee the scene. Scott was subsequently tackled and placed in custody. The officers recovered a handgun that had fallen from Scott's waistband when he attempted to flee and the hand-rolled cigar. A subsequent search of Scott revealed drugs.
The court notes: "It is not disputed that [the officer] seized appellant when he took him out of the vehicle." Id. at 9-10 (citing California v. Hodari D, 499 U.S. 621, 626 (1991) ("The word 'seizure' readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.")). --------
After being found guilty on all charges against him in the trial court, Scott appealed, arguing that the officers did not have a particularized suspicion that he was engaged in criminal activity to justify handcuffing him. Id. at 6. Scott conceded that the officers effected a legitimate traffic stop, but argued it was not readily apparent that the hand-rolled cigar contained contraband. Id. The Court of Appeals recognized that "police officers may detain a driver and any passengers pending inquiry into a vehicular violation, without cause to believe any occupant of the vehicle is involved in criminal activity." Id. at 8 (quoting Arizona, 555 U.S. at 327). The court held that handcuffing Scott was a reasonable method of securing him and insuring the officers' safety. Id. at 9 (citing Crittendon, 883 F.2d at 329 (holding that handcuffing the defendant was reasonable because the officer might be required to go to the aid of his fellow officers in pursuing the defendant's fleeing companion)). However, in a footnote, the court stated:
There is, however, little evidence in the record to gauge the reasonableness of [the officer's] decision to handcuff [Scott] because the attempt was thwarted when [Scott] ran off...We do not hold mat handcuffing a defendant in the course of a lawful traffic stop is per se reasonable in every instance. We merely hold that in this case, [the officer's] attempt to contain the situation to investigate possible criminal activity was reasonable under the Fourth Amendment.Id. at 10, n. 1.
The Court recognizes that "a police officer making a routine traffic stop may order a passenger out of the car for safety reasons, even if the officer has no reason to suspect the passenger of criminal behavior." Atkins, 57 Va. App at. 9 However, the cases are silent with regard to whether an officer may physically remove an individual from a vehicle. Here, the Court finds that Defendant was neither asked nor ordered by the officers to exit the vehicle; rather, Officers Roberson and Garcia physically removed Defendant from the vehicle. Officer Roberson himself testified that he did not ask Defendant to step out of the vehicle, (Tr. p. 53), before he opened the rear passenger's side door and grabbed Defendant's right arm, (Tr. p. 19), while Officer Garcia grabbed Defendant's left arm. Id. The officers then removed Defendant from the vehicle, placed his hands behind his back, and immediately handcuffed him. (Tr. p. 54). Additionally, in response to questioning from the Court, the Commonwealth conceded that Defendant was never asked to exit the vehicle:
Q: Would that be accurate? That he was physically removed from the vehicle?
A: I would agree that the officers did place their hands on the defendant as he was getting out of the car.(Tr. p. 142-43). The Court does not believe that an officer's authority to order a passenger out of a vehicle automatically translates into the forcible removal of that passenger from the vehicle without so much as an opportunity to comply with the officer's orders. "Brief, complete deprivations of a suspect's liberty, including handcuffing, do not convert a stop and frisk into an arrest so long as the methods of restraint used are reasonable to the circumstances." Thomas,16 Va. App. at 857. Like the use of handcuffs, the grabbing of an individual's arms is a complete deprivation of a suspect's liberty, and must be reasonable under the circumstances. Therefore, the Court will analyze the reasonableness of Defendant's forcible removal from the vehicle and his immediate handcuffing.
Q: They never asked him or requested that he voluntarily remove himself from the vehicle.
A: No. I would agree they informed him he was going to be removed from the vehicle.
Unlike the facts in Thomas and Hairston, Defendant was not suspected of involvement in a serious, violent, and recent crime. The officers did not suspect that Defendant was carrying a weapon, as the officers in Johnson had suspected, Furthermore, after Officer Roberson called for backup, Defendant, the driver, and the third occupant were outnumbered by the four officers present at the scene, unlike Johnson in which the officers were outnumbered, and unlike Thomas in which the officer was alone. In Harris, the officer was justified in drawing his weapon because the suspect continued to approach the officer and disregarded the officer's order to show his hands. Defendant, on the other hand, complied with all of the officers' requests, produced his identification, made no furtive or aggressive movements, and did not make any attempt to escape or evade the officers. Unlike Scott, there is no testimony from any of the officers that they recognized Defendant as having prior arrests for drug or weapon violations.
The facts presented to this Court show that the vehicle was only suspected of two equipment violations and stopped immediately in response to the officer's use of the emergency lights and siren, all of the vehicle's occupants produced identification upon request, the officers at the scene outnumbered the occupants, and the officers suspected Defendant of nothing other than breathing heavily and "leaning forward" in his seat. As the court in Scott stated: "We do not hold that handcuffing a defendant in the course of a lawful traffic stop is per se reasonable in every instance." Scott, 2009 Va. App. LEXIS 251 at 10, n. 1. Here, there was no heightened need for officer safety and, absent the odor of marijuana, Defendant's forcible removal from the vehicle and immediate handcuffing were unreasonable under the circumstances. The burden is on the Commonwealth to demonstrate that the seizure was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure. Lawrence, 40 Va. App. at 101. The Commonwealth has failed to meet its burden.
"Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion." Commonwealth v. Ealy, 12 Va. App. 744, 754 (1991). "The exclusionary rule operates not only against evidence seized and information acquired during an unlawful search or seizure but also against derivative evidence discovered because of the unlawful act." Warlick v. Commonwealth, 215 Va. 263, 265 (1974) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920); Wong Sun v. United States, 371 U.S. 471 (1963)). However, "evidence will not be excluded as 'fruit [of the poisonous tree]' unless the illegality is at least the 'but for' cause of the discovery of the evidence." Phelps v. Commonwealth, 2009 Va. App. LEXIS 320, 8 (2009) (quoting Segura v. United States, 468 U.S. 796, 815 (1984)); Ealy, 12 Va. App. at 755 n. 2. "[S]uppression is not justified unless 'the challenged evidence is in some sense the product of illegal governmental activity.'" Phelps, 2009 Va. App. LEXIS 320 at 8 (quoting Segura, 468 U.S. at 815). According to the Supreme Court of Virginia:
There are three limitations to the "fruit of the poisonous tree" doctrine, namely: (1) evidence attributed to an independent source; (2) evidence where the connection has become so attenuated as to dissipate the taint; and (3) evidence which inevitably would have been gained even without the unlawful action.Warlick, 215 Va. at 266.
The Court holds that the evidence of the firearms must be suppressed. As a result of Defendant's unlawful detention, Officer Roberson observed an unidentifiable bulge that protruded a couple of inches from the right side of Defendant's waistband. (Tr. p. 19, 57-58). Officer Roberson, however, had not seen the bulge until Defendant's hands were behind his back and he had been placed in handcuffs. (Tr. p. 20, 54, 58). Officer Roberson testified as follows in response to questioning:
Q: Now, how soon after trying to remove the defendant from the vehicle did you observe the bulge?
A: As soon as he got out of the vehicle, I was able - once we had his hands, I was able to see the side of his shirt was sticking out, the bulge on the side of his waistband.
Q: Now, once you placed his hands behind his back, was he handcuffed at that point?
A: Yes, he was.
Q: At the point he was handcuffed, could you see the bulge?
A: Yes.(Tr. p. 20-21). Furthermore, Officer Garcia did not see the bulge until Defendant had been placed in handcuffs and Officer Roberson announced that there was a bulge. (Tr. p. 91, 96-97). Therefore, the evidence of the first handgun must be suppressed, as its discovery was a direct result of the unlawful detention. See Ealy, 12 Va. App. at 754. After the first handgun was recovered, Officer Garcia escorted Defendant to his police unit, searched Defendant again, and found a second gun inside Defendant's pants on his left hip. (Tr. p. 91). Officer Garcia maintains that Defendant was still being detained, but was not under arrest when he was brought to the police unit and searched again. (Tr. p. 92). Defendant was placed under arrest after the second gun was recovered. (Tr. p. 22, 93). The evidence of the second handgun must also be excluded, as the unlawful detention was the "but for" cause of the handgun's discovery, and because none of the three limitations to the "fruit of the poisonous tree" doctrine apply. See Warlick, 215 Va. at 266.
Therefore, the evidence seized as a result of the unlawful detention is inadmissible, and the Court hereby grants Defendant's Motion to Suppress.
Very truly yours,
/s/
Junius P. Fulton, III
Judge JPF,iii/mls