Opinion
Record No. 1482-08-2.
June 2, 2009, July 14, 2009.
Appeal from the Circuit Court of the City of Richmond Clarence N. Jenkins, Jr., Judge, Circuit Court Nos. CR07-F-7108 through CR07-F-7110.
Upon a Petition for Rehearing En Banc.
Before the Full Court.
Cassandra M. Hausrath, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.
Erin M. Kulpa, Assistant Attorney General (William C. Mims, Acting Attorney General, on brief), for appellee.
Present: Judges Elder, Powell and Senior Judge Coleman.
MEMORANDUM OPINION BY
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On June 16, 2009 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on June 2, 2009, and grant a rehearing en banc on the issue(s) raised in the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on June 2, 2009 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of entry of this order; appellee shall file an appellee's brief upon rehearing en banc within 14 days of the date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc within 14 days of the date on which the appellee's brief is filed. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix previously filed in this case.
William Lee Scott (appellant) was convicted in a bench trial of possession with intent to distribute cocaine in violation of Code § 18.2-248, possession of a firearm while in possession of cocaine in violation of Code § 18.2-308.4(C), and carrying a concealed weapon, third or subsequent offense, in violation of Code § 18.2-308. On appeal, he argues that the evidence should be suppressed because the police did not have reasonable suspicion to make an investigative detention. Alternatively, appellant argues that the evidence was insufficient to convict him of possession with intent to distribute. Because the officers developed reasonable suspicion during a valid detention pursuant to a traffic stop, we reject appellant's claim that the evidence was seized in violation of his Fourth Amendment rights. However, because the evidence was insufficient to show that the quantity of drugs was inconsistent with personal use, we reverse and remand appellant's conviction for possession with intent to distribute.
I. BACKGROUND
On the evening of September 13, 2007, Officers Michael Kielb and Shane Watson observed a white Cadillac fail to properly obey a stop sign as it made a turn. After initiating a traffic stop, Watson approached the car and spoke with the driver, while Kielb scanned the interior of the vehicle to check for contraband or weapons. He recognized appellant, who was sitting in the passenger seat, as having prior arrests for drugs and weapons violations.
While looking into the vehicle from the rear window, Kielb noticed in plain view, between the passenger door and seat, a hand-rolled cigar that he "immediately thought was a blunt." Based on his past experience with narcotics, Kielb knew that marijuana users "will take an already made cigar, unravel it, dump out the tobacco content and refill it with marijuana and twist the ends, making themselves a hand-rolled cigar of marijuana." At that point, he motioned to Watson to remove the occupants from the vehicle in order to retrieve the contraband. When Kielb began to handcuff appellant, appellant attempted to flee the scene. Kielb tackled him ten feet away from the vehicle and placed him in custody. Both Kielb and Watson noticed a black object fall from appellant's waistband as he attempted to flee.
After the struggle, the officers recovered the object that had fallen from appellant's waistband — a loaded 9-millimeter handgun — as well as the blunt Kielb had seen in plain view inside the vehicle. Watson conducted a search of appellant's clothing by shaking his pants. Three baggies fell to the ground: one containing marijuana, another containing a "rock" of cocaine, and a third containing cocaine powder. The total weight of the cocaine was 0.733 gram, of which 0.442 gram was a single rock of cocaine. The officers did not find a personal smoking device or distribution paraphernalia such as scales, baggy corners, or razor blades on appellant. The officers confirmed that the blunt contained marijuana. Appellant admitted that the cigar blunt seized from the car was his and that he smoked marijuana approximately once a week. He did not make any statements regarding the cocaine.
Watson, as an expert in street-level narcotics distribution, testified that a heavy drug user typically consumed two to three grams of cocaine per day. Watson further testified that possession of a firearm was inconsistent with possession of the drugs for personal use.
The trial court held that the combination of factors — including Officer Kielb's experience that cigar blunts are used for purposes of smoking marijuana, the twisted end of the cigar, Kielb's familiarity with appellant's prior criminal history, and appellant's presence near an apartment complex with reported drug activity — justified the investigatory detention. The trial court reasoned that such evidence, while not rising to the level of probable cause, did amount to reasonable suspicion so that "the officer was within his right to have [appellant] removed from the vehicle just to see if anything was going on." At the conclusion of the Commonwealth's evidence, the trial court denied appellant's motion to strike, holding that the presence of the firearm was consistent with an intent to distribute and not personal use. The trial court found appellant guilty of all charges and sentenced him to a total of 25 years imprisonment with 20 years suspended. This appeal followed.
II. ANALYSIS A. REASONABLE SUSPICION
The incriminating evidence in this case stems from Officer Kielb's attempt to handcuff appellant after noticing the cigar blunt, which appellant argues was in violation of his rights under the Fourth Amendment. "What the Fourth Amendment prohibits 'is not all searches and seizures, but unreasonable searches and seizures.'" Buhrman v. Commonwealth, 275 Va. 501, 505, 659 S.E.2d 325, 327 (2008) (quoting Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889, 899 (1968)) (emphasis in original). Whether the Fourth Amendment has been violated is a question to be determined from all the circumstances and is viewed under an objective standard. See Samson v. California, 547 U.S. 843, 848, 126 S. Ct. 2193, 2197, 165 L. Ed. 2d 250, 256 (2006); Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906.
A defendant's claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo on appeal. See McCain v. Commonwealth, 275 Va. 546, 551, 659 S.E.2d 512, 515 (2008); Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). In making such a determination, we give deference to the factual findings of the trial court, but we independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment. Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000).
Appellant argues that Kielb did not have a particularized suspicion that appellant was engaged in criminal activity in order to justify handcuffing him. While conceding that the officers effected a legitimate traffic stop, appellant contends that it was not readily apparent that the cigar blunt contained illegal contraband. Appellant urges this Court to hold that mere "observation of material which can be used for legitimate purposes" cannot give rise to reasonable suspicion, "even though . . . such material is often used for illegitimate purposes."
The police may stop a person for the purpose of investigating possible criminal behavior without violating the Fourth Amendment "if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. . . ." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989). A reasonable suspicion is more than an "unparticularized suspicion or 'hunch.'"Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. "[T]he touchstone of our analysis . . . is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S. Ct. 330, 332, 54 L. Ed. 2d 331, 335 (1977) (quoting Terry, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904). "A general suspicion of some criminal activity is enough, as long as the officer can, based on the circumstances before him at the time, articulate a reasonable basis for his suspicion." Hatcher v. Commonwealth, 14 Va. App. 487, 490, 419 S.E.2d 256, 258 (1992).
As appellant concedes, "[a]n officer may effect a traffic stop when he has reasonable suspicion to believe a traffic or equipment violation has occurred." McCain, 275 Va. at 553, 659 S.E.2d at 516. However, the potential risks associated with traffic investigations permit police officers to take certain additional steps to protect themselves and maintain the status quo without violating the Fourth Amendment so long as those methods are reasonable. See Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41, 48 (1997) (permitting an officer to ask the driver and any passengers to exit the vehicle);Harris v. Commonwealth, 27 Va. App. 554, 563, 500 S.E.2d 257, 261 (1998) (finding a trooper's display of his firearm during a traffic stop to be a reasonable response to the defendant's "failure to show his hands while moving in the trooper's direction").
The United States Supreme Court recently held in Arizona v. Johnson, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009), 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 784, 172 L. Ed. 2d at 700. The Court recognized that the "temporary seizure of driver and passengers . . . remains reasonable[] for the duration of the stop . . . [until] the police have no further need to control the scene[.]" Id. at 788, 172 L. Ed. 2d at 704.
Here, as in Johnson, Kielb was justified in asking appellant to exit the car during the course of a lawful traffic stop. As Kielb testified, the sole purpose of handcuffing appellant was to retrieve what he believed to be a cigar containing marijuana. This was a reasonable method of securing appellant and insuring Kielb's safety while confirming his suspicions. See United States v. Crittendon, 883 F.2d 326, 329 (4th Cir. 1989) (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),quoted with approval in Thomas v. Commonwealth, 16 Va. App. 851, 857, 434 S.E.2d 319, 323 (1993), aff'd on reh'g en banc, 18 Va. App. 454, 455, 444 S.E.2d 275, 276 (1994) (adopting panel opinion). While Kielb was in the process of achieving this legitimate law enforcement goal, appellant resisted and attempted to flee. It was during this struggle that the firearm became dislodged and fell to the ground. It is not disputed that Kielb was authorized to pursue and restrain appellant, and thus the firearm came into plain view as the result of lawful police action. Thus, admitting the firearm as evidence against appellant was not error.
It is not disputed that Officer Kielb seized appellant when he took him out of the vehicle. See California v. Hodari D, 499 U.S. 621, 626, 111 S. Ct. 1547, 1550, 113 L. Ed. 2d 690, 697 (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."). There is, however, little evidence in the record to gauge the reasonableness of Kielb's decision to handcuff appellant because the attempt was thwarted when appellant ran off.See Harris, 27 Va. App. at 563, 500 S.E.2d at 261 ("[T]he police are permitted to use methods of restraint that are reasonable under the circumstances."). We do not hold that 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, Kielb's attempt to contain the situation to investigate possible criminal activity was reasonable under the Fourth Amendment.
The cocaine was likewise admissible under the Fourth Amendment because the officers developed reasonable suspicion that appellant was armed and dangerous, thereby justifying the search. In Brown v. Commonwealth, 270 Va. 414, 620 S.E.2d 760 (2005), the Supreme Court of Virginia held that " probable cause can[not] be established solely on the observation of material which can be used for legitimate purposes, even though the experience of an officer indicates that such material is often used for illegitimate purposes." Id. at 420-21, 620 S.E.2d at 763 (emphasis added). However, an officer needs only reasonable suspicion to conduct a protective pat-down search, a "less demanding standard than probable cause."Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990). We need not decide whether reasonable suspicion can be established solely on the observation of an otherwise innocuous object that may contain illegal contraband because the officers in this case had evidence in addition to the observation of the hand-rolled cigar on which to base reasonable suspicion that appellant could be armed and dangerous. Specifically, appellant was present in a high crime neighborhood, and he actively resisted the detention and attempted to flee the scene, which resulted in the dislodging of a firearm from his waistband. The totality of all the evidence, not just the cigar in isolation, rises to the level of reasonable suspicion so that Watson was justified in conducting the pat-down search that revealed the cocaine.
The totality of the evidence demonstrates that the officers complied with the Fourth Amendment at every juncture. Kielb was authorized to briefly detain appellant in handcuffs pursuant to a valid traffic stop. He was likewise authorized to pursue appellant after he actively resisted being handcuffed. The ensuing struggle dislodged the firearm in appellant's waistband, placing it in plain view. Moreover, this headlong flight, combined with the possible marijuana in the car and appellant's presence in a high crime area, gave Watson the requisite reasonable suspicion to conduct a pat-down search that yielded the cocaine. Thus, the trial court did not err in denying appellant's motion to suppress.
B. SUFFICIENCY OF THE EVIDENCE
Appellant argues that the evidence was insufficient to prove that he intended to distribute the cocaine. When the sufficiency of evidence is challenged on appeal, the court views the evidence in the light most favorable to the prevailing party and draws all reasonable inferences in its favor. See Dunbar v. Commonwealth, 29 Va. App. 387, 393, 512 S.E.2d 823, 826 (1999). "'The judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.'" Wilkins v. Commonwealth, 18 Va. App. 293, 295, 443 S.E.2d 440, 442 (1994) (en banc) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). We "must discard all evidence of the accused that conflicts with that of the Commonwealth and regard as true all credible evidence favorable to the Commonwealth and all fair inferences reasonably deducible therefrom." Lea v. Commonwealth, 16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993). "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
An individual violates Code § 18.2-248 when he "possesse[s] the controlled substance contemporaneously with his intention to distribute that substance." Stanley v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991). In order to prove intent, the Commonwealth may rely on circumstantial evidence so long as it excludes every reasonable hypothesis of innocence. See Emerson v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004); Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). "However, the Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant."Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Factors that may indicate the defendant intended to distribute the illegal drugs in his possession include the "possession of a quantity [of drugs] greater than that ordinarily possessed for one's personal use," Iglesias v. Commonwealth, 7 Va. App. 93, 110, 372 S.E.2d 170, 180 (1988) (en banc), "the method of packaging of the controlled substance," and any "unusual amount of money which suggests profit from consummation of sales," Servis, 6 Va. App. at 524-25, 371 S.E.2d at 165, "the absence of any paraphernalia suggestive of personal use," Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122, 130 (1998) (en banc), the presence of "equipment related to drug distribution," McCain v. Commonwealth, 261 Va. 483, 493, 545 S.E.2d 541, 547 (2001), and the presence of firearms, see Glasco v. Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d 150, 156 (1998), aff'd, 257 Va. 433, 513 S.E.2d 137 (1999). "Expert testimony, usually that of a police officer familiar with narcotics, is routinely offered to prove the significance of the weight and packaging of drugs regarding whether it is for personal use."Askew v. Commonwealth, 40 Va. App. 104, 109, 578 S.E.2d 58, 61 (2003).
In this case, the relatively small quantity of cocaine creates the inference that it was for appellant's personal use. To overcome this inference, the Commonwealth points to the expert testimony of Officer Watson who concluded that appellant had the requisite intent to distribute the cocaine based on the presence of the firearm. Further, appellant possessed both marijuana and cocaine, which is evidence of distribution. See Harper v. Commonwealth, 49 Va. App. 517, 520, 642 S.E.2d 779, 780 (2007) (recognizing the "incriminating significance of . . . simultaneous possession of two disparate drugs"). Upon viewing the totality of all the evidence, however, we conclude the incriminating evidence fails to outweigh the countervailing evidence that supports the hypothesis that appellant possessed the cocaine for personal use.See Emerson, 43 Va. App. at 277, 597 S.E.2d at 249 ("'While no single piece of evidence may be sufficient, the combined force of many concurrent and related circumstances . . . may lead a reasonable mind irresistibly to a conclusion.'" (quoting Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991))).
Significantly, Officers Watson and Kielb recovered no paraphernalia indicative of distribution. Appellant possessed no scales, razor blades, or baggie corners that support a conviction under Code § 18.2-248. If the absence of ingestion paraphernalia is inconsistent with personal use, then it should logically follow that the absence of distribution equipment is likewise inconsistent with intent to distribute. Cf. Dukes v. Commonwealth, 227 Va. 119, 123, 313 S.E.2d 382, 384 (1984) (recognizing that the absence of drug paraphernalia makes it "more likely that [the defendant] used the drug elsewhere"). While the drugs were in separate containers, the Commonwealth has not provided "additional evidence to preclude the inference that it was purchased in the packaged form for personal use rather than being held in that fashion for distribution." Monroe v. Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987); see Servis, 6 Va. App. at 525, 371 S.E.2d at 165 (holding the presumption that the defendant possessed only a small quantity of cocaine for personal use was overcome based on the presence of baking soda and aluminum foil, paraphernalia used to cut and package cocaine). Notably, the Commonwealth failed to offer evidence that simultaneous possession of marijuana and cocaine in this instance was evidence of drug distribution. See Williams v. Commonwealth, 52 Va. App. 194, 199, 662 S.E.2d 627, 629 (2008) (considering an expert witness' testimony that it was "'very unusual' for a user to possess heroin and methadone because the drugs have similar effects"). While we do not doubt Watson's credibility as an expert in narcotics distribution, his expert testimony is only "one factor or circumstance" that we "may consider in determining whether drugs were possessed with intent to distribute."Askew, 40 Va. App. at 110, 578 S.E.2d at 61.
III. CONCLUSION
We hold that the trial court did not err in denying appellant's motion to suppress the evidence, as Officer Kielb conducted a detention pursuant to a lawful traffic stop that was reasonable under the circumstances. The totality of the evidence rose to the level of reasonable suspicion justifying the further investigation. We further conclude that the evidence is insufficient to convict appellant of possession with intent to distribute in violation of Code § 18.2-248, as the evidence does not exclude the reasonable hypothesis of personal use. Accordingly, the judgment of the trial court is affirmed in part, and reversed and remanded in part for a new trial on a charge of simple possession if the Commonwealth be so advised. See Britt v. Commonwealth, 276 Va. 569, 576, 667 S.E.2d 763, 766-67 (2008).
Affirmed in part, reversed and remanded in part.
I respectfully dissent from the portion of this opinion holding that the evidence was insufficient to support the conviction of Scott for possession of cocaine with the intent to distribute in violation of Code § 18.2-248. There is no dispute that when apprehended Scott possessed three baggies. One contained marijuana, one contained .290 gram of powder cocaine and the third contained .443 gram of a single rock of cocaine (for a total of .773 gram of cocaine). Scott also possessed a handgun. He possessed no personal smoking devices nor had paraphernalia indicative of distribution such as scales, baggy corners, or razor blades. Scott admitted that a cigar blunt seized at the scene was his and that he smoked marijuana approximately once a week. The trial court judge found the evidence sufficient for a finding of guilt. As there is no evidence that would establish that the trial court was plainly wrong or without evidence to support its finding, I would affirm the decision of the trial court.
It is well settled that "[c]ircumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). With regard to Scott's challenge to the sufficiency of the evidence to sustain his conviction, this Court "has the duty to review the evidence that tends to support the conviction and to uphold the circuit court's judgment unless it is plainly wrong or without evidence to support it." Commonwealth v. Duncan, 267 Va. 377, 384, 593 S.E.2d 210, 214 (2004).
I agree with the majority regarding their recitation of the applicable law as to the facts the Court considers that are indicative of an intent to distribute the illegal drugs. I disagree, however, with the significance the majority affords those factors.
Basically, the majority finds the relatively small quantity of cocaine, and the absence of distribution equipment as fatal to a finding of possession with the intent to distribute. I concede, that possession of a small quantity of drugs creates an inference that the drug is for personal use. White v. Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 (1997). However, other circumstances may indicate intent despite the paucity of drugs. See Colbert v. Commonwealth, 219 Va. 1, 244 S.E.2d 748 (1978). Here, appellant was found with a handgun, a common tool of the drug dealer's trade.See Dixon v. Commonwealth, 11 Va. App. 554, 557, 399 S.E.2d 831, 833 (1991). Also of significance is the fact that the appellant possessed both marijuana and cocaine. We have recognized that the unique, simultaneous possession of a combination of disparate drugs can be indicative of the possessor's intent to distribute. Williams v. Commonwealth, 52 Va. App. 194, 662 S.E.2d 627 (2008); Harper v. Commonwealth, 49 Va. App. 517, 642 S.E.2d 779 (2007). Moreover, the drugs were packaged individually, making them easier and more profitable to sell. See Langston v. Commonwealth, 28 Va. App. 276, 504 S.E.2d 380 (1998).
While the simultaneous possession of cocaine and marijuana may not be as disparate as the simultaneous possession of other drugs such as heroin or methadone, it creates a unique situation here because appellant admitted to being a marijuana user but made no such admission with regard to cocaine. Furthermore, in the present case .443 gram of cocaine was in rock form as opposed to powder form. This is significant, as cocaine in powder form can be mixed with marijuana and smoked; meanwhile, cocaine in rock form requires a smoking device and cannot be mixed with marijuana and smoked.
It is further relevant that appellant compounded the incriminating nature of the circumstances by readily admitting that he smoked marijuana approximately once a week, while making no such admission regarding the cocaine which he possessed. Appellant's assertion that he uses one type of drug, but remains silent regarding the use of the other type "undermines [appellant]'s argument that personal use is the only reasonable hypothesis of possession." Harper, 49 Va. App. at 522, 642 S.E.2d at 782; see also Shackleford v. Commonwealth, 32 Va. App. 307, 528 S.E.2d 123 (2000) (relying on the fact that the defendant "never claimed that he used drugs" as a factor to be considered in determining whether the defendant had the requisite intent to distribute).
Therefore, I find that the facts, taken as a whole, provide sufficient evidence to prove that appellant possessed cocaine with the intent to distribute it.