Opinion
Record No. 0172-93-4
July 20, 1993
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA ALFRED D. SWERSKY, JUDGE.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General; Margaret Ann B. Walker, Assistant Attorney General, on brief), for appellant.
Kevin Gaynor, Assistant Public Defender, for appellee.
Present: Judges Barrow, Coleman and Koontz.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
This appeal by the Commonwealth, pursuant to Code § 19.2-398, challenges the correctness of the trial court's order suppressing evidence of cocaine found in the defendant's jacket after he fled from a police officer. We cannot conclude, as a matter of law, that the defendant consented to the search, as contended by the Commonwealth; therefore, we affirm the trial court's order.
An Alexandria police officer saw the defendant and another man at 2:00 a.m. sitting on property marked with "No Trespassing" signs. The two men got up and walked away when the officer stopped his car. The defendant separated from the other man and walked through an alley to another street. The officer drove around the block and saw the defendant knocking on the door of a residence. The officer parked his car in the alley and watched the defendant knock on the door for "a little more than a minute." No one answered the door.
The officer got out of his automobile and approached the defendant, who remained standing where he was with his hands in his pockets. The officer asked him his name and if he lived there. The defendant told the officer his name, but did not respond to the second question. The officer "walked up a little closer" and repeated the question. The defendant responded that his girlfriend lived there and said that he was trying to get her attention. The police officer later verified that the defendant's girlfriend lived at that address.
The officer then noticed that the defendant was no longer wearing a hat he had on earlier and asked him where the hat was. The defendant responded that it was in his pocket, and showed the hat to the officer upon further request. The officer asked the defendant to take his hands out of his pockets. The defendant did so at first, but then put his hands back into his pockets.
The police officer asked, "What is in your pocket?" to which the defendant responded, "Nothing." The officer then asked the defendant to let him see what he had in his pockets. The officer, who testified that he wanted to see the defendant's hands in order to protect his safety, then asked the defendant if he could pat him down. The defendant gave no verbal response to this request, but the officer performed the pat-down search anyway when the defendant opened his jacket. As the pat-down was proceeding, the defendant pulled his hands out of his pockets, and, according to the officer, made a fist. The officer, who "thought [that] he was going to hit me," then lunged at the defendant and grabbed his jacket, which came off.
The defendant ran away, was chased by the officer, and was ultimately arrested for assault and trespassing. Other officers arrived on the scene and retrieved the defendant's jacket, which had dropped to the ground when he pulled away from the first policeman. In the jacket, the officer found two plastic baggies containing crack cocaine.
The defendant moved to suppress evidence of the cocaine on the ground that he was illegally searched by the police officer. After hearing the officer's testimony, the trial court suppressed the evidence of cocaine, finding that the officer had "no reason, nor articulable suspicion . . . to approach the Defendant."
The Commonwealth argues that the defendant consented to the officer's search of his person by standing mute and opening his jacket when the officer asked if he could pat him down. The trial judge rejected this argument. At the conclusion of the hearing, the trial judge acknowledged the Commonwealth's argument that the defendant consented to the encounter, but suppressed the evidence. The judge also explained that the officer had no basis for suspecting that a crime had been committed. Implicit in the trial court's ruling is its finding that the search of the defendant was not consensual. See Commonwealth v. Holloway, 9 Va. App. 11, 20, 384 S.E.2d 99, 104 (1989) (finding that the defendant did not disclaim ownership of his luggage was implicit in the trial court's ruling).
We view the evidence in a light most favorable to the defendant, who prevailed below, granting to him all reasonable inferences fairly deducible from that evidence. Holloway, 9 Va. App. at 20, 384 S.E.2d at 104. We may not reverse a trial judge's decision unless it is plainly wrong. Code § 8.01-680. Upon this record, we cannot find, as a matter of law, that the defendant consented to the search or the seizure of his jacket.
Furthermore, the trial judge's finding that the police officer did not have a reasonable, articulable suspicion for believing that the defendant may have been engaged in criminal activity is not plainly wrong. Although an officer may stop a person for investigative purposes "'if there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense,'" Dixon v. Commonwealth, 11 Va. App. 554, 556, 399 S.E.2d 831, 832 (1991) (quoting Hayes v. Florida, 470 U.S. 811, 816 (1985)); see also Terry v. Ohio, 392 U.S. 1 (1968), the officer "'must have a particularized and objective basis for suspecting the particular person stopped of criminal activity'" after assessing the "'totality of the circumstances.'"Dixon, 11 Va. App. at 556, 399 S.E.2d at 832 (quotingUnited States v. Cortez, 449 U.S. 411, 417-18 (1981)). The trial court's finding that there was "no probable cause at that point to stop the Defendant, nor any articulable suspicion to approach the Defendant for purposes of investigation" is not plainly wrong and is also binding upon this court. See Code § 8.01-680;Commonwealth v. Peterson, ___ Va. App. ___, ___, 424 S.E.2d 722, 723 (1992). Neither the defendant nor the Commonwealth contend that at the time of the encounter, probable cause existed to arrest the defendant for trespass and that the search was incident to a lawful arrest.
Having failed to find that the defendant consented to the search and seizure of his jacket and having found that the officer had no reasonable, articulable reason for believing that the defendant was engaged in criminal activity, the trial court correctly suppressed the evidence of cocaine found in the jacket. Accordingly, the ruling of the trial court is affirmed.
Affirmed.