*1 Hugene Woodson, Jr. Jimmie
v. Virginia Commonwealth Record No. 921171 April Hassell, JJ., Carrico, C.J., Whiting, Lacy, Compton, Stephenson, Present: Cochran, Retired Justice *2 Mann, brief), for (Levit B. Mann & on John appellant. Harris, Terry, (Mary Sue Q. Attorney Assistant General Robert General, brief), for appellee. Attorney on of the Court. delivered the opinion WHITING JUSTICE case is whether this Fourth Amendment issue in The primary To decide this ques admitted. evidence was inculpatory “seized” within tion, the defendant was must determine when Amendment.* of the Fourth D.R. Carter Detective November About 7:45 on p.m. Rich- City front entrance of a house stationed at the a search warrant were executing other officers mond while entrance at the front As Carter stood inside the house. for drugs search, the house during entered or left sure that no one making one of the house and at least car driven slowly by he noticed a being house, After in Carter’s direction. passing its looking passengers car, exited and walked up and one passenger the driver stopped turned house. Just after the former passenger the street toward the door,” at” Carter he “looked right straight “to come to the front him 12 feet. Carter as Jimmie recognized from a distance of about Woodson, (Woodson, Sr.), a former officer “now Sr. Hugene convicted of drugs.” ‘ Mr. Wood- said ‘there is no need to walk away, Although *3 Woodson, son,” and from away “then turned” walked Sr. rapidly uniform, but he his the house and the car. Carter was not pulled neck, to the outside of his which he wore around his police badge, automatic and to the vehicle. Carter had his pistol shirt walked over knew that the hand side.” Carter right his “down right [his] the events for one connected with looking were still person walked to to the issuance of the search warrant. As Carter leading Gentlemen, door, your the driver’s he said “Police Officer. put I can them.” hands where see but Jimmie Hugene
Both immediately complied, passengers Woodson, driver, (Woodson), the turned to his and bent right Jr. grabbing down to his side. Carter could not see “what was right door, for,” had a large but Carter the car when opened revolver in hand. right hand, arm with his left held his
Carter Woodson’s grabbed right hand, neck with his other and told own Woodson’s against pistol revolver, he, Carter, would Woodson that if he did not the drop floor, the to the but contin- shoot him. Woodson revolver dropped tried to his hand in his front pants ued to as he struggle get Carter called for help. pocket. searches and seizures.” [*] people The Fourth to be secure in their persons, Amendment to the Constitution of the United States houses, papers, and effects, protects against “[t]he unreasonable right side of
As Detective P.H. Brunson entered front passenger’s vehicle, observed that Woodson had his hand again Carter floorboard,” “back in the and Brunson noticed that Woodson down had the butt of the Additional officers were his hand on gun. from the car and then handcuff his to remove Woodson required hands behind his back. that Woodson King Detective J.E. noticed
During struggle, reach before he was hand- into his kept trying pants pocket cuffed. “went to check” this after Woodson was King As pocket handcuffed, said, I am an addict. You have “Okay. got reached me. It is in front When into my right King pocket.” small, he retrieved a which con- self-sealing bag, pocket, plastic $20.00 tained “a bill folded that had white inside of the powder $20.00 bill.” The later was determined to be cocaine. powder Bukavich, Officer John another officer who assisted in subduing Woodson, found a small amount marijuana front shirt pocket. (1) (2)
Woodson was
with:
of marijuana;
charged
possession
pos-
cocaine; (3)
session of
obstructing
performance
officer;
(4)
and
of a firearm while in
duties as police
possession
of cocaine. A
convicted Woodson of the first three
jury
possession
was entered on those verdicts. Woodson
charges,
judgment
these convictions to
Court of
which affirmed.
appealed
Appeals,
Woodson v.
14 Va.
Woodson contends cocaine marijuana sible in evidence because were the fruit of an unreasonable they seizure of his in violation of his Fourth Amendment rights. person As first determine when Woodson was noted must previously, “seized” within the of the Fourth Amendment. D.,_
The
relies
v. Hodari
Commonwealth
upon California
*4
D.,
U.S._,
a
officer did
Hodari
and Woodson
United States v. Men-
upon
denhall,
(1980),
language
‘only
states a
but
necessary,
not a
con
sufficient
dition ...
Fourth
seizure effected
[a
through
Amendment]
”
D.,_U.S.
at_,
‘show of
Hodari
authority.’
Claiming that he was seized when Carter ordered him to place them, hands where Carter could see to distin- attempts guish Hodari D. on the ground that he was confined to the vehicle and that that, it is reasonable to assume had he to leave attempted vehicle, Carter would have seized him by force. How- physical ever, Woodson himself, overlooks the fact that he had armed this gave rise to an inference that he did so to resist effort Carter to restrain his movement. And in whether deciding order, submitted to Carter’s we see no essential difference between Woodson’s act in himself and arming Hodari’s act in from fleeing the police officer.
Thus, D., as in Hodari because Woodson did not submit to command, Carter’s did, we must focus what Woodson upon what a reasonable would have assumed person under the circum stances. Considered in that it light, apparent Woodson had not been seized when Carter ordered him to place hands where Carter could see them because Woodson did not submit to Carter’s instead, he authority; armed himself with the intention of apparent *5 406 this, he did provided req- And when Woodson Carter.
shooting that justified of criminal reasonable uisite seizure. were rights Fourth Amendment Woodson’s
Accordingly, discov the cocaine and were marijuana thereafter when not violated to that seizure. U.S. v. Waupekenay, incident ered search during 1533, F.2d (10th 1992); Bailey, U.S. v. 691 1537 Cir. F.2d “new, for dis 1982) arrest (11th may Cir. (police 1016-1018 conduct). to unlawful police tinct crime” Therefore, defendant response in evi were admitted the cocaine and marijuana statements because Woodson’s at 1018-1019. And Bailey dence. is in my right and that that he was an “addict” cocaine] “[i]t [the of his know finding front ample justification pocket” provide cocaine, merit in we find no intentional ing possession on this the evidence was insufficient that Woodson’s contention count. to conviction for attempting consider Woodson’s we
Finally, of his duties. Former in the performance Detective Carter impede 18.2-460(B) (Cum. 18.2-460(A) (1988) (now Code Supp. § Code § threats, force, or know that 1992)) any person, by provided “[i]f . . . law-enforcement any to intimidate or impede ingly attempts such, he be ... shall in his duties as lawfully engaged claims 1 misdemeanor.” Woodson be of a Class guilty deemed to not because he “was of this charge that he cannot be convicted Detective investigation by not the target under arrest and was and, therefore, to an unlawful arrest.” had the “resist Carter” Here, however, con to the jury’s the evidence was sufficient justify officer, that as a that Carter was identifiable readily clusion and without he was peacefully attempting intent force, himself with the Woodson armed and that unnecessary Carter, be, author submission to Carter’s if need to avoid to shoot circumstances, con could have the jury reasonably Under those ity. had to resist forfeited whatever cluded that Woodson 640, 647, 133 S.E.2d 204 Va. Banner v. Carter. See give arrest of itself would (1963) (“An illegal life”). Accord take the officer’s to shoot or defendant con the evidence Woodson’s supports are of ingly, opinion of his performance viction for attempting impede duties. reasons, the Court of the decision of we will affirm
For these Appeals.
Affirmed. LACY, JUSTICE concurring. on his assertion that the entire appeal premised
chain events flowed from Officer Carter’s of the Wood approach son vehicle. That under approach, argues, illegal *6 Ohio, v. U.S. Terry (1968), 392 1 because Officer Carter did not have reasonable any that Woodson was crimi suspicion engaged nal not addressed the this activity. Although by majority, premise flawed.
Woodson confuses a Terry with investigatory stop to right officer’s individuals and ask Florida v. approach questions. 491, Royer, (1983); 460 U.S. 497 v. Baldwin 243 191, 196-97, Va. (1992). 413 S.E.2d 648 In a the Terry stop, officer has the to right detain individuals because he approach has a reasonable that are in some of suspicion Here, Carter, they engaging type criminal like the activity. had to a car on a street for approach parked public investigation pur- Id. poses. correct, however,
Woodson is that Carter’s action subsequent the ordering vehicle’s to their where he hands could occupants put them, see extends mere This demand was a beyond show of inquiry. detain, authority Carter’s intent to seize reflecting or the occu- stop, of pants the Woodson vehicle. At that the encounter point, was within the anof under category investigatory Terry. Neverthe- stop less, whether Carter had the reasonable to make requisite if, fact, this demand is relevant Carter’s command consti- only tuted a seizure as Woodson contends. As concluded by majority, not Woodson was seized until after he had reached for his gun. Carter’s actions were justified at that clearly point, did vio- late Woodson’s Fourth Amendment rights. that asserts his conviction for of obstruction justice because he had acted in the exercise
improper lawfully of to resist an illegal arrest rather than to This impede justice. argu- ment is also on a based flawed premise: only obstruction was Woodson’s resistance an activity to unlawful arrest. allegedly above, As discussed there was no arrest until after the obstructive act, i.e., and, therefore, grabbing gun, the subse- Furthermore, quent arrest was not illegal. Woodson forfeited whatever had to resist arrest to this as noted prior point, his chosen majority, by method resistance. Banner v. Com- monwealth, 640, 647, Va. 133 S.E.2d in the execu- Carter was involved argued,
As the Commonwealth and, entitled to as he was duty, of a search warrant part tion criminal known vicinity regarding other persons vehi- parked Carter had a right approach at the house. actions his duties investigation. cle in discharging investigation with that and “failing cooperate” himself arming did, to, and intended that Woodson finding jury’s support investigation. Carter’s impede