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MASON v. COMMONWEALTH OF VA


MASON v. COMMONWEALTH OF
VA

(unpublished)


MAY 5, 1998
Record No. 0219-97-2

MICHAEL LAMONT MASON

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1]
BY JUDGE ROSEMARIE ANNUNZIATA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG

Oliver A. Pollard, Jr., Judge
Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia

Elizabeth D. Scher (Anthony G. Spencer; Morchower, Luxton
& Whaley, on briefs), for appellant.

Jeffrey S. Shapiro, Assistant Attorney General (Mark L.
Earley, Attorney General, on brief), for appellee.


Michael Lamont Mason (appellant) appeals his convictions for
possession of cocaine and possession of a firearm while in
possession of a controlled substance, in violation of Code Sects. 18.2?250 and
18.2?308.4, respectively. Appellant contends that the evidence
against him was unlawfully seized because the police did not
possess reasonable articulable suspicion to stop the car in which
he was riding. Finding no error, we affirm.

At roughly 3:00 a.m. on September 10, 1995, Officer K.D.
Johnson informed Officer Chris Hoang to be on the lookout for a
"darkened" or "dark in color" Honda Accord
containing four African?American males. Hoang learned that the
Accord had been involved in a drive?by shooting on Fillmore
Street five or ten minutes previously.

At approximately 3:20 a.m., Hoang spotted a Honda Accord
driven by appellant near Fillmore Street, three blocks from the
location of the drive?by shooting. He described the color of the
Accord as "copper, brownish" or "brownish
orange." Hoang called the license number of the Accord into
the police station to determine if the number matched that of the
car in the drive?by shooting, but the station did not respond.
As Hoang waited parallel to the Accord at a stoplight, he
observed the four African?American male occupants "kind of
like glancing at [him], twitching around." One person in the
back of the car bent down, and the other "scoot[ed] down" in his seat. The Accord turned into a gas station,
drove into an alley, and "went around the whole block."

After briefly following the Accord, Hoang saw other police
officers and informed them that he believed the Accord might be
the vehicle the police were looking for. The officers stopped the
Accord, pulled appellant and the other occupants out of the car,
and handcuffed them. The police discovered cocaine and a firearm
in a bag under the driver’s seat.

Appellant filed a motion to suppress the evidence seized from
the Accord. The court overruled appellant’s motion to suppress,
and, sitting without a jury, found the appellant guilty.

Appellant contends that the evidence against him was illegally
seized because the police lacked reasonable articulable suspicion
to stop his vehicle. "On appeal, the burden is on appellant
to show, considering the evidence in the light most favorable to
the Commonwealth, that the denial of the motion constituted
reversible error." Stanley v. Commonwealth, 16 Va.
App. 873, 874, 433 S.E.2d 512, 513 (1992) (citing Fore v.
Commonwealth
, 220 Va. 1007, 1010, 265 S.E.2d 729, 731
(1980)). We are bound by a trial court’s findings of historical
fact unless the findings are plainly wrong or without evidence to
support them, but we review "’[u]ltimate questions of
reasonable suspicion’" de novo. McGee v.
Commonwealth
, 25 Va. App. 193, 197, 487 S.E.2d 259, 261
(1997) (en banc) (quoting Ornelas v. United
States
, 116 S. Ct. 1657, 1659 (1996)).

In order to stop a motor vehicle, a police officer must have
"at least articulable and reasonable suspicion" that
the operator or occupants of the vehicle are in violation of the
law. Delaware v. Prouse, 440 U.S. 648, 663 (1979); accord,
e.g.
, Commonwealth v. Thomas, 23 Va. App. 598, 610,
478 S.E.2d 715, 721 (1996) (citing Prouse, 440 U.S. at
663). In evaluating whether a police officer had reasonable
articulable suspicion, we must consider "’the totality of
the circumstances.’" Murphy v. Commonwealth, 9 Va.
App. 139, 144, 384 S.E.2d 127, 128 (1989) (quoting United
States v. Sokolow
, 490 U.S. 1, 8 (1989)). We acknowledge that
"trained and experienced police
officers . . . may be able to perceive and
articulate meaning in given conduct which would be wholly
innocent to the untrained observer." Buck v. Commonwealth,
20 Va. App. 298, 302, 456 S.E.2d 534, 536 (1995) (citing Richards
v. Commonwealth
, 8 Va. App. 612, 616, 383 S.E.2d 268, 271
(1989)).

Here, Hoang received a description of a wanted vehicle as a
dark?colored Honda Accord with four African?American male
occupants. Appellant’s car matched the make, model, and dark
coloring of the wanted car. The number of occupants of the wanted
car matched the number of occupants in appellant’s car. See
State v. Kyles, 607 A.2d 355, 364 (Conn. 1992) (finding
reasonable articulable suspicion to stop a car where the
description of the car and perceived number of occupants matched
the defendant’s car). The gender and race of the occupants of
appellant’s car also matched those listed in the description. See
Wells v. Commonwealth, 6 Va. App. 541, 552, 371 S.E.2d 19,
24 (1988) (allowing police officer to consider race and gender in
identifying whether a person matched a description).

Furthermore, appellant’s car was spotted less than thirty
minutes after the shooting only three blocks from the scene of
the shooting. See Howard v. Commonwealth, 210 Va.
674, 677?78, 173 S.E.2d 829, 832 (1970) (finding stop reasonable
based on, inter alia, temporal and physical
proximity to crime); Wells, 6 Va. App. at 552, 371 S.E.2d
at 24 ("Proximity to the scene of a recently committed crime
is another factor which police may consider in determining
whether to engage in a Terry stop."). Finally, the
occupants of appellant’s car sought to avoid observation by Hoang
upon seeing him. See Smith v. Commonwealth, 12 Va.
App. 1100, 1103, 407 S.E.2d 49, 52 (1991) (allowing consideration
of "`suspicious conduct of the person accosted such as an
obvious attempt to avoid officers’" (quoting Williams v.
Commonwealth
, 4 Va. App. 53, 67, 354 S.E.2d 79, 87 (1987))).

Appellant argues that the information available to the police
was too vague to provide the individualized suspicion required by
the Fourth Amendment. To the contrary, the confluence of factors
known to the police provided reasonable articulable suspicion
that appellant and the other occupants in the car were involved
in the earlier drive?by shooting. Therefore, we affirm
appellant’s convictions.

Affirmed.

 

 

 

 

FOOTNOTES:

[1] Pursuant to Code Sect. 17?116.010 this
opinion is not designated for publication.

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