854 S.E.2d 177
Va. Ct. App.2021Background
- At ~3:00 a.m., Henrico County officers responded to a dispatch that occupants of a white car were blocking a driveway and had brandished a firearm at a resident of a small apartment building.
- Lamont Bagley was seated in the driver’s seat of the white car when officers approached and shined flashlights into the vehicle.
- Bagley made repeated, rapid furtive movements toward the driver-side floorboard, then exited the car quickly and moved toward an apartment; officers detained and frisked him (no weapon found).
- During a protective sweep of the vehicle, officers found >80 grams of cocaine (powder and crack) beneath the driver’s seat, a digital scale, a blue glove with more suspected cocaine, and new plastic baggies by the door; mail with Bagley’s name was in the console.
- Trial court denied Bagley’s motion to suppress (holding the sweep lawful as an officer-safety protective sweep), convicted him of second-offense possession with intent to distribute, revoked a prior suspended sentence, and sentenced him to active time; Bagley appealed raising Fourth Amendment, discovery/new-evidence, transcript, and sufficiency claims.
- The Court of Appeals affirmed the denial of suppression, the denial of reconsideration, held the transcript claim was waived, and found the evidence sufficient; remanded only to correct a clerical sentencing error.
Issues
| Issue | Plaintiff's Argument (Bagley) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Lawfulness of vehicle search / protective sweep | No reasonable suspicion justified search; Fourth Amendment violation | Caller’s report (non-anonymous identification), presence in small apartment complex, corroboration of a white car blocking driveway, and Bagley’s furtive movements gave reasonable suspicion he was armed or could access a weapon in the car | Search lawful as officer-safety protective sweep under Terry/Long; suppression denial affirmed |
| Motion to reconsider / new suppression hearing (after-discovered evidence) | Officer Earlenbaugh’s testimony and discovery gaps were withheld and material; new hearing required | Bagley lacked diligence to obtain Earlenbaugh testimony; discrepancies not materially changing suppression ruling | Denial of reconsideration/new hearing not error — Bagley failed to satisfy new-trial prongs (diligence, materiality) |
| Trial court’s written Addition to Transcript | Judge’s additions are unsupported and erroneous | Appellant requested completion and failed to timely object under Rule 5A:8 | Claim waived for failure to timely object; not considered on appeal |
| Sufficiency of the evidence for constructive possession and sentence revocation | Evidence did not prove dominion/control of the drugs | Furtive gestures toward seat, proximity of drugs/scale, new baggies, Bagley’s quick exit, authorization to use vehicle and mail with his name support constructive possession | Evidence sufficient for constructive possession; conviction and revocation affirmed |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (authorizes limited patdowns for officer safety based on reasonable suspicion)
- Michigan v. Long, 463 U.S. 1032 (1983) (extends Terry to protective sweep of vehicle passenger compartment)
- Arizona v. Gant, 556 U.S. 332 (2009) (limits vehicle searches incident to arrest; distinguishes Long sweeps)
- Florida v. J.L., 529 U.S. 266 (2000) (anonymous tips lacking corroboration insufficient to justify stop and frisk)
- United States v. Arvizu, 534 U.S. 266 (2002) (reasonable-suspicion analysis considers totality of circumstances)
- Jones v. Commonwealth, 52 Va. App. 548 (2008) (reasonable suspicion that a suspect is armed supports vehicle frisk/sweep)
- Jackson v. Commonwealth, 267 Va. 666 (2004) (self-identifying informant’s tip can be given weight in reasonable-suspicion calculus)
- Smallwood v. Commonwealth, 278 Va. 625 (2009) (constructive possession may be inferred from acts, statements, conduct, and surrounding circumstances)