AARON EMILE MCARTHUR v. COMMONWEALTH OF VIRGINIA
Record No. 1793-19-2
COURT OF APPEALS OF VIRGINIA
JULY 28, 2020
JUDGE CLIFFORD L. ATHEY, JR.
PUBLISHED. Present: Judges Petty, Malveaux and Athey. Argued by teleconference.
PUBLISHED
Present: Judges Petty, Malveaux and Athey
Argued by teleconference
AARON EMILE MCARTHUR
v. Record No. 1793-19-2
COMMONWEALTH
OPINION BY JUDGE CLIFFORD L. ATHEY, JR. JULY 28, 2020
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Gregory L. Rupe, Judge1
Miriam Airington-Fisher (Airington, Stone & Rockecharlie, PLLC, on briefs), for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Aaron Emile McArthur (“McArthur”) appeals his conviction in the Circuit Court of the City of Richmond for possession of a firearm by a convicted felon in violation of
I. BACKGROUND
On May 12, 2018, Richmond Police Officer Michael Blaylock (“Officer Blaylock” or “Blaylock”) initiated a traffic stop on a vehicle McArthur was driving for a defective fog light. After ascertaining McArthur‘s identity, Officer Blaylock asked McArthur if there were any weapons in the vehicle. McArthur stated that the vehicle was owned by his girlfriend and, as far as he knew, there were no weapons in her vehicle. McArthur then provided Blaylock with an identification card, which was passed along to Officer Carrie Griffith (“Officer Griffith” or “Griffith”).
Officer Griffith returned to the police cruiser with the identification card and obtained criminal and driving information on McArthur from the mobile computer in the police cruiser. The information included an alert through the Virginia Department of Corrections that McArthur was thought to have been a member of the Crips gang during a previous incarceration. While Griffith was obtaining this information, Blaylock asked McArthur to consent to a search of his girlfriend‘s vehicle due to what Blaylock described as McArthur‘s “sketchy” demeanor. McArthur declined to consent to a search of the vehicle because he did not own the vehicle.
When McArthur declined to consent to a search of his girlfriend‘s vehicle, Blaylock instructed McArthur to exit the vehicle so that he could conduct a “protective sweep.” McArthur immediately complied with Blaylock‘s request and exited and stood at the rear of the vehicle. Upon exiting the vehicle, McArthur began to sweat profusely and nervously stated to his girlfriend on the phone that “they are locking me up.” Blaylock then searched underneath the driver‘s seat where he found a 9mm handgun hidden from view. After discovering the firearm, Blaylock instructed Officer Griffith to place McArthur under arrest. Officer Griffith did not inform Blaylock of McArthur‘s alleged past gang affiliation until the search of the vehicle and arrest had been effectuated.
McArthur subsequently moved to suppress any evidence recovered during the search of the vehicle. McArthur argued that Blaylock lacked a reasonable articulable suspicion that he was armed and dangerous when he engaged in the protective sweep of the vehicle. The Commonwealth defended Blaylock‘s protective sweep by arguing, in part, that Blaylock had a reasonable articulable suspicion based on the imputed knowledge Officer Griffith obtained concerning McArthur‘s alleged prior gang affiliation and incarceration. The trial court denied the motion to suppress, stating, “[t]he factors that the Court relied on are the evasiveness of the defendant at the scene, the gang affiliation information from [the databases], the high crime area, the lack of cooperativeness, and all the other conduct the officer testified to and was reflected on the body cam.”
At trial, McArthur moved to strike the Commonwealth‘s case at the conclusion of their case-in-chief and at the conclusion of all the evidence based, in part, upon the trial court‘s failure to suppress the admission into evidence of the firearm. McArthur was subsequently found guilty of possession of a firearm as a violent felon and moved to set aside the verdict as contrary to the law and the evidence. The trial court denied the motion to set aside the verdict before sentencing McArthur to five years’ incarceration. This appeal followed.
II. ANALYSIS
A. MOTION TO SUPPRESS
On appeal, when considering a challenge to the denial of a motion to suppress, the Court will review the decision de novo “when the defendant claims that the evidence sought to be suppressed was seized in violation of the
1. REASONABLE ARTICULABLE SUSPICION
The
Whether reasonable suspicion exists is “based on an assessment of the totality
As a result, “‘reasonable suspicion’ is ‘considerably less than proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less demanding than that for probable cause.’” Perry v. Commonwealth, 280 Va. 572, 581 (2010) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). We must therefore look to the totality of the circumstances of each case in determining the validity of a police officer‘s actions. Whitfield v. Commonwealth, 265 Va. 358, 361 (2003). In addition, whether the conduct of a police officer is reasonable “is judged from the perspective of a[n objectively] reasonable officer on the scene allowing for the need of split-second decisions and without regard to the officer‘s [subjective] intent or motivation.” Thompson v. Commonwealth, 54 Va. App. 1, 7 (2009) (quoting Scott v. Commonwealth, 20 Va. App. 725, 727 (1995)). Therefore a protective sweep may be justified where “the police officer possesses a reasonable belief based on ‘specific and articulable facts which taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and may gain immediate control of weapons.” Taylor v. Commonwealth, 10 Va. App. 260, 264 (1990).
Here, McArthur was initially stopped for a defective fog light, made no furtive movements inside the vehicle, and was cooperative and polite. When Blaylock asked for consent to search the vehicle, McArthur reasonably declined on the basis that he was not the owner of the vehicle. Although the
In Hill v. Commonwealth, 297 Va. 804, 815 (2019), a defendant was sitting alone in his car in a high crime, high drug area. Upon approaching the vehicle, the defendant ignored repeated requests by the officer to show his hands and instead began “digging down” in the rear floorboard area of the car. Id. The Virginia Supreme Court held in that instance that, because of the lack of cooperation when asked to show his hands, and the furtive movements of the defendant reaching around in the floor of the car, the police had a reasonable basis for believing that the defendant was reaching for a weapon. Id. The Court noted, however, that the police would not be justified in searching or seizing the defendant if he had simply remained still and refused to show his hands when the police officers commanded him to do so. Id. at 821. See United States v. Lowe, 791 F.3d 424, 428, 433-35 (3d Cir. 2015) (finding no reasonable suspicion to conduct a Terry stop and frisk when the
At the time of the search, Blaylock thought McArthur seemed “sketchy” and nervous, however, “[n]ervousness during the course of a traffic stop, standing alone, is insufficient to justify a frisk for weapons . . . .” McCain, 275 Va. at 554. Blaylock confirmed, at the suppression hearing, that McArthur was polite and cooperative throughout the traffic stop and made no furtive movements around the cabin of the vehicle. As the Supreme Court noted in Hill, a lack of furtive movements by a polite and cooperative driver would negate the requisite reasonable articulable suspicion required, in the instant case, to initiate a search of the driver or cabin of the vehicle. See Hill, 297 Va. at 821.
During the suppression hearing, Blaylock also attempted to justify the search of the vehicle based upon his belief that McArthur was being evasive when he declined to consent to search the vehicle. The exercise of one‘s
As the Virginia Supreme Court stated in Hill, “the ultimate touchstone of the
2. COLLECTIVE KNOWLEDGE DOCTRINE
The Commonwealth also contends that Officer Griffith‘s knowledge that McArthur may have been gang affiliated while previously incarcerated should be imputed to Blaylock, creating reasonable articulable suspicion through the collective knowledge doctrine. The Commonwealth argues that a protective sweep of the vehicle would then be justified in this case due to Blaylock‘s imputed knowledge that gang affiliated individuals may be armed and dangerous. The Commonwealth bases their argument on Commonwealth v. Smith, 281 Va. 582, 586 (2011), however their reliance is misplaced.
In Smith, the Virginia Supreme Court held that a pat down of the defendant‘s outer clothing and subsequent seizure of a weapon was justified based on information obtained by police databases alerting officers at the scene that the defendant might be armed and dangerous. Id. The key distinction from the instant case is that the officers who participated in the pat down in Smith received the alert that Smith may be armed and dangerous prior to patting down the defendant‘s outer clothing. Id.
The facts here are clearly distinguishable from Smith. While Officer Griffith did receive an alert that McArthur had been previously incarcerated and could have gang affiliation, Griffith did not relay the information about McArthur‘s gang involvement while incarcerated to Blaylock until after the search of the vehicle was complete.
In Edmond v. Commonwealth, 66 Va. App. 490 (2016), we subsequently discussed the origins of what is now known as the collective knowledge doctrine at issue in Smith. Relying on Whiteley v. Warden, 401 U.S. 560 (1971), and United States v. Hensley, 469 U.S. 221 (1985), we found that the collective knowledge doctrine is supported on “the premise that where an officer‘s action is directed by another officer, that action is proper as
Edmond also views positively the ruling from the United States Court of Appeals for the Fourth Circuit in United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011).2 In Massenburg, two officers responded to an anonymous tip about shots having been fired in an area known to be a high crime area. Id. at 483. The officers stopped four men and requested their consent to a search. Id. Massenburg declined the officers’ request and stated that he did not need to be
searched. Id. Massenburg was subsequently searched involuntarily, and a gun and small amount of marijuana were recovered. Id. The second officer on the scene testified that prior to the searching officer frisking Massenburg, he had observed what he believed to be a small bulge in Massenburg‘s jacket but failed to communicate this knowledge to the frisking officer before the search was initiated. Id.
The primary issue in Massenburg was whether, under the collective knowledge doctrine, the non-frisking officer‘s uncommunicated observation of a bulge in Massenburg‘s jacket should be imputed to the frisking officer as the basis for the frisking officer‘s reasonable suspicion thus permitting him to conduct the search. Id. at 491. The Fourth Circuit rejected this expansive aggregation principle it referred to as “horizontal” aggregation, distinguishing it from the less expansive “vertical” aggregation. Id. at 494. The court described a “‘vertical’ collective knowledge relationship in which [one] officer‘s conclusion [i]s conveyed” to others who then effect the seizure before distinguishing that relationship from a “‘horizontal’ collective knowledge relationship in which the knowledge of several officers must be aggregated to create probable cause.” Id. at 493 (quoting United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1228 n.5 (10th Cir. 2008)). Concluding that through Supreme Court precedent, the doctrine “holds that when an officer acts on an instruction from another officer, the act is justified if the instructing officer had sufficient information to justify taking such action herself; in this very limited sense, the instructing officer‘s knowledge is imputed to the acting officer.” Id. at 492.
While this Court previously adopted the collective knowledge doctrine in Edmond, we have not resolved the extent to which the aggregation principles discussed in Massenburg apply to cases arising in the Commonwealth of Virginia. The Commonwealth would have us expand the Virginia Supreme Court‘s holding in Smith, and our holding in Edmond, to adopt the “horizontal” aggregation principle. We decline to expand the aggregation principle to this extreme.
Here, no information or instructions were transmitted between Griffith and Blaylock prior to Blaylock initiating the search. Blaylock did not initiate the search based on instructions from Griffith after she had sufficient information to justify such action herself. We therefore decline to adopt the Commonwealth‘s position that Officer Griffith‘s uncommunicated knowledge provides an after-the-fact justification to Blaylock‘s illegal search when Blaylock was not acting in reliance on her instructions or information. If we were to adopt the Commonwealth‘s position, the legality of a warrantless search would depend solely on whether officers are able to gather information held by other officers, after-the-fact, to create reasonable suspicion or probable cause. See Massenburg, 654 F.3d at 493.
We find that “horizontal” aggregations of knowledge, which are only communicated between officers after a stop, search, or arrest, cannot be subsequently relied upon by an officer as evidence supporting a reasonable articulable suspicion justifying the police action. However, as we held in Edmond, “an officer is justified in acting upon an instruction from another officer if the instructing officer had sufficient information to take such action himself.” Edmond, 66 Va. App. at 503. This “vertical” aggregation of knowledge was found to be
The exclusionary rule‘s “sole purpose . . . is to deter future
As a result, we decline to impute Officer Griffith‘s knowledge of McArthur‘s possible gang affiliations to Officer Blaylock as justification for a protective sweep of the vehicle and thus the trial court erred in failing to grant the motion to suppress. Since any evidence, including the firearm, gathered from this protective sweep is in violation of McArthur‘s
B. SUFFICIENCY OF THE EVIDENCE
Although we reverse McArthur‘s conviction as violative of the
It is well settled that “[w]hen a defendant challenges the sufficiency of the evidence, we view the evidence and all reasonable inferences in the light most favorable to the Commonwealth, the prevailing party in the trial court.” Rowland v. Commonwealth, 281 Va. 396, 399 (2011). “The judgment of conviction will be reversed only when the ruling is plainly wrong or without evidence to support it.” Cordon v. Commonwealth, 280 Va. 691, 694 (2010). “[I]t is just as obligatory upon the appellate court, to set aside . . . the judgment of a court, when it is, in its opinion, contrary to the law and evidence, and therefore plainly wrong, as it is to sustain it when the reverse is true.” Preston v. Commonwealth, 281 Va. 52, 57 (2011) (quoting Hickson v. Commonwealth, 258 Va. 383, 387 (1999)).
At the close of the Commonwealth‘s case-in-chief, McArthur moved to strike the evidence as insufficient to prove, beyond a reasonable doubt, that McArthur knowingly and intelligently possessed the firearm found hidden under the driver‘s seat of his girlfriend‘s vehicle. The trial court denied his motion. Post-trial, McArthur also moved to set aside the conviction as contrary to the law and evidence on the same grounds. The trial court also overruled McArthur‘s motion to set aside his conviction.
In this case, the evidence established that a firearm was found concealed
Here, the facts establish that the firearm was found underneath the driver‘s seat, placed in a manner consistent with how someone in the driver‘s seat might store a firearm, and was easily accessible upon a search beneath McArthur‘s seat, providing sufficient evidence that the firearm was within McArthur‘s dominion and control. See id. at 631 (finding firearm within defendant‘s dominion and control when located on an open console beside defendant‘s leg).
McArthur alleges, however, that no evidence exists to show that he was aware of the presence and character of the firearm. We disagree. While McArthur‘s actions inside the vehicle did not rise to the level of reasonable articulable suspicion to justify a warrantless search of the vehicle, McArthur‘s statements and nervous behavior after following Officer Blaylock‘s instructions to step out of the vehicle provide sufficient circumstantial evidence to show that he was aware of the firearm under the driver‘s seat.
Once Blaylock asked McArthur to get out of the vehicle, McArthur began to sweat profusely and nervously stated that “they are locking me up” to his girlfriend on the phone. Taking these facts, and drawing inferences in favor of the Commonwealth, we cannot say that the trial court was plainly wrong, as a matter of law, in finding that McArthur constructively possessed the firearm. See Commonwealth v. Hudson, 265 Va. 505, 513 (2003) (clarifying that on appellate review, the issue is whether a reasonable jury, upon consideration of all of the evidence in the light most favorable to the Commonwealth and the reasonable inferences therefrom, could have found the accused guilty beyond a reasonable doubt). Therefore, we hold that the evidence in the record, viewed in a light most favorable to the Commonwealth, is sufficient to sustain McArthur‘s conviction.
Because our mandate is to decide cases on the best and narrowest grounds, see Commonwealth v. White, 293 Va. 411, 419 (2017) (recognizing that “[t]he doctrine of judicial restraint dictates that we decide cases ‘on the best and narrowest grounds available’” (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015))), we decline to address McArthur‘s second assignment of error regarding the admission of his entire criminal history at trial as this issue does not impact double jeopardy protections, and may be renewed in a different context upon remand should the Commonwealth choose to proceed to trial.
III. CONCLUSION
For the foregoing reasons, we reverse the ruling of the trial court and remand for proceedings in accordance with this opinion.
Reversed and remanded.