*1 Richmond WOODSON, JR. JIMMIE HUGENE VIRGINIA OF COMMONWEALTH 0743-90-2 No. June
Decided
Counsel Mann, (Levit brief),
John B. Mann & on for appellant. Harris, Assistant Q. Robert General Sue Attorney (Mary Terry, General, brief), on for Attorney appellee.
Opinion Woodson, Jr.,
KOONTZ, C.J. Hugene appellant, Jimmie cocaine, ma of possession in a trial of jury possession convicted was sentenced a total justice, and obstruction of rijuana (1) On he contends that years thirty days. appeal, two search; the results refusing trial court erred suppress for his conviction insufficient evidence (2) supported for cocaine; his conviction supported insufficient evidence convictions. We affirm the justice. obstruction search On officers executed a November Street in the drugs City warrant at 1427 North 29th search, D.R. Carter was sta- During Richmond. Detective “to sure no one left or tioned at the front door of the house make no one came in.” The were still for another individ- looking search executed at ual connected warrant dwelling.
From Detective observed a car drive by post, *3 “at slow a distance down the house a short very pace” As of the looked occupant street. the car at least one car passed, one appel- Carter’s direction. After car stopped, passenger, father, lant’s left the and walked toward the house. Detective car Sr., Woodson, a former Carter this Jimmie recognized forced drugs” officer who had been “convicted Sr., Woodson, leave with- got 'When police department. house, name; however, in twelve feet of the called his Carter Sr., Woodson, walked house but did not away turned and return to the car. car, with his gun
Detective Carter then walked to the parked uniform, wore down his side. was not in but right his hand He a noticed individuals on neck chain. Carter three police badge announced, “Police car. the driver’s side and He approached Gentlemen, I Two where see them.” officer. hands can put your Woodson, driver, but the complied passengers immediately when his looking pres- not. Woodson was Carter he announced went his right body ence. Woodson then “turned his with time, the car door down to At that Carter right opened his side.” right in his hand. gun and saw that Woodson had and, time, at the same placed Woodson’s wrist grabbed neck. Carter told Woodson his revolver under Woodson’s his drop and the weapon, gun fell to the floor. Detective Carter called for assistance and continued to with struggle Woodson. Woodson was trying his hand in put pocket. testified that Woodson was “going back towards the floor” when Detective Brunson approached the passenger side of the car. Brunson seized gun, loaded .357 revolver. chrome-plated
Additional officers arrived to help restrain Woodson. Once he handcuffed, stated, Woodson I am an “Okay. addict. You have me. It is got in my right front I am pocket. an addict.” A small “ziploc” plastic bag a folded containing dollar bill twenty grams 1.57 of cocaine inside was found in Woodson’s pocket. The officers also found a hand-rolled marijuana cigarette and a cellophane wrapper containing marijuana in Woodson’s shirt pocket.
Woodson first challenges the trial court’s denial of his motion to suppress evidence seized the search during of his person. Commonwealth contends that Woodson’s failure to make the tran- of the script pre-trial suppression of the hearing part record on bars our appeal review of this issue. trial,
Prior to Woodson filed a motion to suppress the evidence seized after his arrest. Following hearing, the trial court denied trial, the motion. At Woodson renewed his motion at the close of the Commonwealth’s case. The record reflects that the trial court and defense counsel discussed the evidence at the presented pre- trial, trial and at suppression hearing noting their recol- differing lections of the evidence presented at the pre-trial hearing. The trial court and defense counsel also acknowledged that the evi- dence presented differed, at the pre-trial hearing some respects, to that presented at trial. The court denied the renewed motion.
Where a is not transcript of the record part on appeal, *4 may reach the merits of the if case the record “is sufficient in the absence of the to determine the transcript merits of the appellant’s Commonwealth, allegations.” 96, 99, Turner v. 2 Va. 341 App. 400, (1986); Commonwealth, 402 see also Bunion v. 557, 561, 470, 370 S.E.2d App. 472 (1988). The Commonwealth argues that we not reach may the merits here because the trial court relied its earlier upon ruling with defense disagreed counsel as to the evidence from the We suppression hearing. disa gree with the Commonwealth’s argument. review of Upon the rec-
791 ord, is not indispensa- hearing transcript we find that the pre-trial the record issue because ble to our resolution of suppression is sufficient to determine the which contains the trial transcript challenge. merits appellant’s have
In determine whether the evidence should order to whether Woodson was been must first decide suppressed, amendment’s meaning prohibi “seized” within the fourth and seizure. A seizure occurs against tion unreasonable search . author when the “circumstances . . amount to show of official ‘a reasonable have believed that ity person such that would ” 491, Royer, not free to leave.’ Florida v. 460 U.S. 544, Mendenhall, United States U.S.
(quoting Commonwealth, 363, Va. (1980)); see also Goodwin v. App. Here, Detective Carter with his 398 S.E.2d car, that he was a gun in hand announced approached po officer, your lice and ordered the of the car occupants “put see hands where I can them.” The officer’s announcement offi cial with his command for authority coupled subsequent par do were to a reasona ties to told would indicate they certainly ble that he or she was not free to the officer’s disregard Indeed, her or otherwise on his or business.1 request carry from leav effectively Carter’s command prevented occupants ing, restricting their freedom of movement. The order thereby them,” context, I can in this amounts hands where see “put your of movement significant to a restraint on the individual’s freedom of the fourth amendment. sufficient to invoke the protections recognize generally approach public place We that an officer’s of an individual does do not violate the Fourth Amend not constitute seizure. “Law enforcement officers willing public place, by asking by merely approaching him if he is ment an individual in a willing answer.” Rich questions putting questions to him if he answer some (1989)(citing Florida ards Richards, Royer, appellant standing, example, sta In U.S. him, they building approached tionary, airport two asked if could outside an when officers Finding Id. speak with him and asked to see his airline ticket and identification. that authority not such that Richards was free circumstances did not demonstrate show leave, questioning approach amount to a we held that the mere of Richards not “ Here, Id. ‘the sort the initial confrontation between Carter and Woodson was seizure. implicates no Fourth Amendment interest.’ consensual encounter Richards, Rodriguez, curiam)). (1984)(per Florida v. 5-6 Unlike officer 469 U.S. willing merely approach ask if he would be to answer some here did not Woodson and Therefore, fall questions. and Woodson cannot be said to the encounter between Carter may public holding individual in a an within line cases willing place put questions him if he is to answer. *5 792
Therefore, conclude, we find that a reasonable would circumstances, these that he she was not to leave of- or free the See Moss 305, ficer’s presence.2 v. App. 307-08, that the manner (holding which a uniformed officer with a blinding confronted defendant seizure). to flashlight amounted a found that was
Having
by
Woodson
seized
Carter’s an
nouncement
and show of
next
authority,
must
determine
whether Carter had
Woodson.3
adequate grounds
In or
“stop”
der to
the
the
justify
stop,
fourth amendment
that
the
requires
“
facts,
officer have a
suspicion,
objective
‘reasonable
based on
Id. at
that
the individual
is
activity.’
involved
criminal
Texas,
Brown
“The does not all only fourth amendment proscribe ‘unreasonable’ seizures.” Bethea banc) Terry (en (citing
Ohio, Bethea, In we held that an (1968)). recently U.S. to law step officer’s or directive for a out of a request passenger detained vehicle a reasonable seizure under the fourth fully so, test to doing balancing amendment. In we be explained used in a seizure meets the fourth amend determining whether ment’s standard of reasonableness. balanc- by
Whether a seizure is unreasonable is determined be free from ing right arbitrary govern- the individual’s to countervailing interest against society’s mental intrusion its law en- detecting or crime in protecting preventing forcement officers. States v. (citing Brignoni-Ponce, United U.S. from arbi- balancing being In Woodson’s interest free against state the Commonwealth’s in- agents interference
trary
trial,
disagreed
at
counsel
as to whether the evidence
At
the court and defense
stop sign
pre-trial
hearing
suppression
Woodson’s car had failed to
at a
showed that
passing
warrant
executed. Because we have
where the search
before
house
hearing,
transcript
suppression
to
provided
are unable
consider
not been
with a
grounds
adequate
approach
analysis
had
the vehicle.
in our
of whether Carter
this factor
Nonetheless,
record,
giving
reviewing
sufficient
rise
we find that there are
facts
to a
purported
activity
suspicion
even without this
evidence.
of criminal
reasonable
officers,
that,
its
protecting
terest
law enforcement
we find
circumstances,
Under the
the intrusion occasioned
re-
by being
quired
place
one’s hands within view of the
investigating
is minimal. The facts in this case
illustrate the hazards
accurately
law enforcement officers encounter in roadside
id.
See
stops.
478,
Woodson also that the evidence was insufficient sup port conviction of cocaine. he con Specifically, tends that the evidence was insufficient that he prove knowingly he did intentionally possessed cocaine because not know dollar bill twenty contained cocaine.
When reviewing the of the evidence on sufficiency appeal, *7 “we must view all the in light evidence the most favorable to the Commonwealth and accord the evidence all reasonable infer ences deducible fairly therefrom. The verdict will not be jury’s disturbed on unless it is appeal plainly wrong or without evidence 172, Commonwealth, 176, it.” Traverso v. Va. support 6 App. 719, 366 S.E.2d 721 (1988) (citations omitted).
“To convict defendant of of an narcotic possession illegal drug, the Commonwealth must that show the defendant was aware of the and of presence drug character the and was inten and of in it.” Hairston tionally consciously v. Common possession wealth, 183, 186, 893, 5 Va. S.E.2d App. “ acts, .. . be of ‘[Kjnowledge may proved by evidence declara tions or conduct the from which may of accused the inference be drawn that knew of the fairly existence of narcotics [the accused] at the were People where found.’ place they 224, 227, 306, Pigrenet, 26 Ill. 2d 186 N.E.2d “an evidence shows that Woodson told the that he was ad police dict” directed their attention the cocaine in his shirt twenty given repayment testified that the dollar bill had been to him as Woodson bag gift, powder the that was a loan and but he not know cocaine. declarations, could reasona- these the jury From acts pocket. and character found that Woodson knew of the bly presence have consciously he was intentionally the substance and that it. that evidence was insufficient Woodson next contends Code in violation of justice his for obstructing conviction support § Code 18.2-460(A), now 18.2- A violation of former Code 460. § § force, threats, know- when or 460(B), “any person, 18.2- occurs by . or . . law-enforcement ingly impede any intimidate attempts officer, in his duties.”6 engaged lawfully intent, required by there no as argues
Woodson that his statute, duties. Spe- an officer the performance impede no he intended to he contends that there was that proof cifically, assault, an he did not use the offensive manner because gun threaten, We It disagree. at the officer. is gun point manner is gun Woodson’s intent to use the offensive statute; rather, is intent to impede it his prohibited by gravaman officer in the of his duties that performance statute. mind which may is the formed in
“Intent purpose person’s Commonwealth, be Polk v. shown statements conduct.” 590, 595, Johnson (1987) (citing 358 S.E.2d Commonwealth, 209 Va. evidence in the most favorable to the (1968)). Viewing light Commonwealth, must, we Higginbotham find (1975), the jury sufficient from which Woodson’s conduct provided proof Carter in the find he intended to Detective impede per could When Detective Carter approached formance of his duties. car, and directed an order that he was a announced gun. for a A Woodson reached immediately to the occupants, ensued, floor the car. Carter and the fell to the gun struggle *8 evidence, the floor.” From this saw back towards “going Woodson a grabbing to find that Woodson’s actions was entitled jury in re- for its continuing struggle possession, and gun loaded engaged” “lawfully officer. in his duties a law enforcement Detective Carter was assisting warrant near the location where Wood- in the execution of search his passed approach was in furtherance of official son’s his of Woodson’s vehicle car police duties. announcement, to Detective consti- sponse Carter’s tuted an attempt his official duties. This impede con- duct sufficient provides evidence which the jury reasonably Polk, could have requisite found the intent to impede. See 595-96, S.E.2d at 773. Furthermore, it is not there be an necessary assault or threat order to find physical criminal intent under this statute. Polk, In the defendant made verbal threats or about a police officer at the during time the arrest and post-arrest processing. We held that Polk’s verbal threats demonstrated his intent to in- timidate officer in the impede the of his duties. performance Therefore, fact Woodson did not assault point gun at the officer does not remove his conduct from the purview the statute.7
In Woodson’s summary, seizure was reasonable supported by and, therefore, suspicion the evidence his seized from person Moreover, admitted properly into evidence at trial. Woodson’s conviction for of cocaine was sufficient ev- supported by Finally, idence. the evidence was sufficient to demonstrate Woodson’s intent to an officer in the impede his performance official duties. affirm Accordingly, we his convictions for posses- cocaine, sion of possession marijuana and obstruction of justice.
Affirmed. Duff, J., concurred.
Benton, J., dissenting. “When the motor vehicle an police stop occupant, detain this constitutes ‘seizure’ of Fourth Amendment even of the limited purposes, though function and the detention brief.” Zimmerman (1988) (citations omitted). The events Woodson, Jr.,
that led to the conviction Jimmie Hugene began as a result of an unlawful seizure. that,
It is well-established be initi- investigatory stop may ated when an officer has “a reasonable only suspicion, based asserts, defense, right by way Woodson to resist an unlawful arrest. Because arrested, lawfully Woodson was we do not address this contention. *9 facts, is involved criminal that the individual objective
on reasons articulable When the officer’s examining activity.” reasonable- the objective a examine person, for stopping subjec- the officer’s rather than ness of the officer’s behavior activity. criminal indicates tive belief that the conduct 496-97, 412 S.E.2d Riley Texas, 47, 51 443 U.S. Brown v. (quoting detaining proves The record not] [did “[t]he par- basis for the objective suspecting a ‘have particularized ” Zimmerman, 234 of criminal activity.’ ticular person stopped Cortez, at 710 United States Va. at 411, 417-18 (1981)). 449 U.S. officers battered down the that eight police
The evidence proved gain entry Richmond to residence in the City door a entrance Carter was drugs. Sergeant guarding search for D.R. used to where the front door to the residence and “took position While the door was knocked down.” Carter be [because] watch, the residence. he observed a vehicle as it standing passed that Carter noticed that the head majority The observes was . . . turned toward” the man “in the rear the vehicle] [of testify searched. did not the man’s being residence Carter Indeed, in the nothing conduct was indicative of criminal conduct. be for a to look passerby that it would abnormal suggests record standing doorway. testify at an armed man looked in the direction that either the driver or the front passenger of the residence. undisclosed gleans significance
The some majority moving pace.” the vehicle was “slow Carter’s testimony However, for the ve- explanation the evidence rational provides feet from Carter away vehicle was twenty-five hicle’s speed. Carter, it passed it. After the vehicle when he first noticed the car travelled past described the distance stopped. residence: There is a house residence
I was at searched]. [the row two more units within that I there are there and believe on side of is corner. Then the opposite and it houses wide, feet I would say, street the corner of the feet, further. maybe. Maybe
These added facts that when Carter first saw the vehicle it prove was about That stop. travelling vehicle was at a “slow in a pace” neighborhood residential immediately prior unusual, significant, is not or suspicious.
When the vehicle man in the rear exited vehi- stopped, cle on and walked When sidewalk. in front of the resi- dence, he turned looked at the residence. Carter realized that *10 he knew the man and called his name. The man turned “rapidly and continued to walk” in the away direction he originally — walking the away Although vehicle. Carter testified that user, he knew the man to a drug be Carter did not find con- his Rather, duct suspicious enough following warrant him. went the other direction. Carter chose to a vehicle containing individuals who Carter could identify and who had engaged no behavior giving rise an articulable of suspicion illegal activity.
Carter, hand, his in his ordered the of weapon occupants the vehicle remain place. The Commonwealth asks this Court to of uphold lawfulness the seizure of the occupants because the vehicle was when Carter first it. traveling slowly saw Nothing in suggests Carter’s that he “a testimony particular- had ized and objective basis vehi- suspecting occupants [the Cortez, of criminal at 417-18. activity.” major- U.S. cle] conclusion to the is not ity’s the facts. An contrary by supported objective assessment of the of the circumstances totality requires more than a recitation the minutia of the factual Un- setting. less the objective facts are shown to rise to give a reasonable ar- conduct, ticulable of criminal is suspicion seizure unlawful. The record proves subjective that Carter had hunch that only him caused to decide to the vehicle and oc- investigate detain the A “hunch” “too cupants. is slender a reed” to satisfy require- ments of the fourth amendment. Reid Georgia, U.S. 441 (1980).
Every citizen has a
to be
constitutionally guaranteed right not
at the unfettered
stopped
right
discretion
That
police.
pro-
tected even though the
consider the
be a
police may
intrusion to
mere inconvenience.
is more
“Nothing
clear than that
Fourth
Amendment was
meant
wholesale
prevent
intrusions upon
personal security
our
these
be
citizenry, whether
intrusions
termed
‘arrests’
detentions.’ Davis v. Missis-
‘investigatory
fundamental
of the most
726-27
One
U.S.
sippi,
that, “in
justifying
partic
requires
amendment principles
fourth
intrusion,
to specific
officer must be able
police
point
ular
which,
infer
with rational
facts
taken together
and articulable
facts,
that intrusion.” Lans
warrant
reasonably
ences from those
down
denied,
Terry
(1983), cert. Ohio, “In basis for any the absence 392 U.S. misconduct, between the the balance suspecting [Woodson] security pri right to personal interest and public [Woodson’s] Brown v. of freedom from interference.” police tilts in favor vacy Texas, 52 (1979). 443 U.S. difficult when work- recognize all face tasks
We However, po- the hazards of the at allows ing night. majority arbi- A citizen’s be free of right lice work to confuse the issue. reciting slogans. be overcome by interference cannot trary police interference arbitrary Woodson’s interest free from subjective decision to existed when made the agents — We would with Carter. also struggle him before long seize are at risk on well is not officers who just police do to recall it *11 are also risk equally of this at Citizens country night. roads night who vehicles at being victimized by persons assistance, see Wyant, Titcomb guise offering under the 82, 31, 33, under the (1985); pretext Va. App. Trucking Hill City un-uniformed officer. See police 735, 737, 377, Christian, (1989); State 129, (1989); 561 A.2d 18 Conn. Gagnon, App. Ct. App. Commonwealth v. Mass. Garafolo, N.E.2d and the oc- he went to the vehicle ordered
Carter testified that traveling the vehicle was to remain in because place cupants for his deci- it. He no other reason gave when he first saw slowly was not in uniform and was the vehicle. Carter sion to approach Carter testi- in his hand. weapon Although an automatic carrying chain, he also testi- his neck on a badge fied that he had a around night. dark of I would hold fied that this incident occurred when that, violation that occurred from the constitutional apart the evidence to remain place, Carter ordered the occupants requi- had the doubt that Woodson a reasonable prove beyond Code 18.2- a violation of necessary to prove site criminal intent § 460(B) intimidate . . (“knowingly attempts any . impede officer, duties”). law enforcement in his lawfully engaged The rec- ord no observable indicia of proved would have authority put Woodson on notice that Carter was in law fact a enforcement of- ficer. Gagnon, 18 Conn. at A.2d App. at 132 (crimi- Cf. nal defendant clothes introduced himself plain of- ficer before assaulting victim); Garafolo, 23 Mass.
For the reasons here stated because the only sup- evidence porting Woodson’s conviction for of cocaine was the Woodson, product the unlawful detention I would hold that the evidence should have been suppressed conviction must be I reversed. dissent.