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WILLIAMS v. COMMONWEALTH OF VIRGINIA


WILLIAMS v. COMMONWEALTH
OF VIRGINIA

(unpublished)


AUGUST 19, 1997
Record No. 0318-96-2

BRUCE WILLIAMS

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1] BY JUDGE MARVIN F. COLE
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Thomas N. Nance, Judge
Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia

Patricia P. Nagel, Assistant Public Defender (David J.
Johnson, Public Defender, on brief), for appellant.

Daniel J. Munroe, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.


Bruce Williams (appellant) entered a conditional guilty plea
to charges of possession of burglary tools, grand larceny, and
statutory burglary. On appeal, he contends that the trial judge
erred in denying his motion to suppress the evidence. We
disagree, and affirm appellant’s convictions.

When a trial judge’s denial of a motion to suppress is
reviewed on appeal, appellant has the burden to demonstrate that,
viewing the evidence in the light most favorable to the
Commonwealth, the judge’s decision was reversible error. Fore
v. Commonwealth
, 220 Va. 1007, 1010, 265 S.E.2d 729, 731
(1980). "On appeal, the judgment of the trial court is
presumed correct. The burden is on the party who alleges
reversible error to show by the record that reversal is the
remedy to which he is entitled." Johnson v. Commonwealth,
12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991) (citation
omitted). The decision of the trial judge will be disturbed only
if plainly wrong. See Commonwealth v. Grimstead, 12
Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). Our consideration
of the record includes evidence adduced at both the trial and the
suppression hearing. See DePriest v. Commonwealth,
4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987). See also
Bynum v. Commonwealth, 23 Va. App. 412, 415, 477 S.E.2d
750, 752 (1996).

While we are bound to review de novo the
ultimate questions of reasonable suspicion and probable cause, we
"review findings of historical fact only for clear error and
. . . give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers." Ornelas
v. United States
, 517 U.S. ___, ___, 116 S. Ct. 1657, 1663
(1996).

So viewed, the evidence proved that at 2:20 a.m. on October
13, 1995, Officer Berkley H. Eikerenkoetter and his partner,
Officer David Ernest, were traveling northbound on Allen Avenue
in Richmond when they observed defendant, later identified as
Bruce Williams, walking southbound on Allen Avenue between
Parkwood and Grayland Avenues in the direction of the officers
and Grayland Avenue. Williams was crossing over a highway
overpass between Parkwood and Grayland Avenues. He was pulling a
super can. This activity attracted the attention of Officer
Eikerenkoetter, who was driving the police car, and he pulled the
car to the center of Allen Avenue and stopped. Officer
Eikerenkoetter testified Williams’ action was suspicious because
he had arrested and convicted, in the past, persons using super
cans to conceal stolen property. He stopped to talk with the
person pulling the can.

Williams admitted that he had crossed the overpass and was at
the intersection of Grayland and Allen Avenues. Officer
Eikerenkoetter at the suppression hearing drew a diagram showing
where he stopped the police car and where the defendant was
walking. The diagram established that the police car was parked
adjacent to the centerline of Allen Avenue and on a diagonal, but
all within the northbound traffic lane of Allen Avenue. The car
was close to the south curbline of Grayland Avenue, but had not
entered it. The defendant was walking in the southbound lane of
Allen Avenue near the western curbline of Allen Avenue. Because
the time of night was 2:20 a.m., the officer testified that he
stopped diagonally in Allen Avenue in order to see Williams in
the police car headlights. Nothing in the record suggests that
the light blinded Williams, or affected him in any way, as he
contends.

Super cans are issued by the City of Richmond to all
residents, who use them as containers to hold trash and refuse.
The residents place the cans beside the street in front of their
homes, and the trash is collected periodically by the city trash
collectors.

Officer Eikerenkoetter testified that the area was known for
violence, homicides and criminal activity. He stated that the
nature of the area was a big factor in the establishment of a
police precinct there. Eikerenkoetter was experienced with the
use of super cans. He testified that prior to this incident, he
had observed a man pulling a super can in the same area. He
investigated and the man fled the scene, leaving the super can
behind. It contained a stolen air conditioner. He further
testified that he had arrested people for concealing property in
super cans and had obtained convictions. He testified that he
stopped and approached Williams because he suspected that he was
concealing stolen property in the can.

Eikerenkoetter testified that he exited the driver’s door and
approached Williams. His partner got out of the passenger’s door
and approached Williams from behind. Nothing in the record
suggests that Williams was blocked or prevented from leaving the
scene in any direction if he desired to do so, as he now argues.
The following conversation ensued:

Eikerenkoetter: How are you doing? Man, what are you
doing?

Williams: Nothing.

Eikerenkoetter: What [have] you got in the can?

Williams: Nothing.

Eikerenkoetter: Do you have any weapons or drugs on you
that I need to know about?

Williams: No.

Eikerenkoetter: Do you mind if I check?

Williams did not make any response to this question.
Eikerenkoetter testified that when he was not permitted to check
for weapons or drugs, he patted down Williams’ outer clothing
"for [the] safety of myself and Officer Ernest."

During the pat-down, Eikerenkoetter felt a long, hard object
in Williams’ jacket pocket. He asked what the object was, but
Williams did not answer. The officer reached into the pocket and
removed the item, which was a fourteen inch long screwdriver. He
felt other hard objects in the pocket, removed them, and found
them to be a pair of pliers, a pair of scissors, and wire
cutters.

Based upon the "time of the morning and the
circumstances," Eikerenkoetter concluded that the items in
Williams’ possession were burglary tools. He again asked what was
in the super can, and again Williams did not answer. Officer
Ernest then opened the can and found property later determined to
have been stolen from a nearby business.

Eikerenkoetter observed two sets of numbers on the can. One
was the City assigned number, and the other was the spray painted
number 1616. Upon seeing the number, Eikerenkoetter had other
police units check around the 1600 block of Cary Street because
both businesses and residences were located there and was only a
block away from the overpass in the direction from which Williams
was coming. At the trial of the case, the Commonwealth’s attorney
proffered the evidence. A business in the 1600 block of Cary
Street was broken into with what appeared to be a screwdriver.
Stolen from the business was a computer, office equipment and
several car stereos. These articles were found in the super can.

In this case, we hold that Officer Eikerenkoetter had
reasonable articulable suspicion that Williams may have been
engaged in criminal activity and was armed and dangerous.
Consequently, a stop pursuant to Terry v. Ohio, 392 U.S. 1
(1963), and a pat-down were justified. Upon finding the burglary
tools during the pat-down, Eikerenkoetter had probable cause to
arrest Williams. Incident to the arrest, he was justified in
searching Williams and the super can.

In assessing the propriety of the trial court’s ruling, we
keep in mind that the Fourth Amendment does not proscribe all
searches and seizures, only those that are
"unreasonable." See id. at 9.

Courts must apply objective standards in determining whether
the requisite degree of suspicion exists, taking into account
that "trained law enforcement officers may be ‘able to
perceive and articulate meaning in given conduct which would be
wholly innocent to the untrained observer.’" Attention must
be focused on objective reasonableness rather than on the police
officer’s subjective intent.

Castaneda v. Commonwealth, 7 Va. App. 574, 580, 376
S.E.2d 82, 85 (1989) (reh’q en banc)
(citation omitted).

The Fourth Amendment does not require a policeman who lacks
the precise level of information necessary for probable cause to
arrest to simply shrug his shoulders and allow a crime to occur
or a criminal to escape. On the contrary, Terry recognizes
that it may be the essence of good police work to adopt an
intermediate response. A brief stop of a suspicious individual,
in order to determine his identity or to maintain the status quo
momentarily while obtaining more information, may be most
reasonable in light of the facts known to the officer at the
time.

Adams v. Williams, 407 U.S. 143, 145-46 (1972). See
also Harmon v. Commonwealth, 15 Va. App. 440, 444,
425 S.E.2d 77, 79 (1992).

It is an established principle that a brief detention for
investigative purposes is justified when an officer has
reasonable suspicion supported by articulable facts that
"criminal activity may be afoot." United States v.
Sokolow
, 490 U.S. 1, 7 (1989). "[I]nnocent behavior will
frequently provide the basis for a showing of [reasonable
suspicion], . . . and . . . ‘[i]n making a determination of
[reasonable suspicion] . . . the relevant inquiry is not whether
particular conduct is "innocent" or "guilty,"
but the degree of suspicion that attaches to particular types of
noncriminal acts.’" Id. at 10 (citation omitted).
"Actual proof that criminal activity is afoot is not
necessary; the record need only show that it may be
afoot." Harmon, 15 Va. App. at 444, 425 S.E.2d at 79.

"There is no ‘litmus test’ for reasonable suspicion. Each
instance of police conduct must be judged for reasonableness in
light of the particular circumstances." "In order to
determine what cause is sufficient to authorize police to stop a
person, cognizance must be taken of the ‘totality of the
circumstances — the whole picture.’"

Id. at 445, 425 S.E.2d at 79 (citations omitted).

Officer Eikerenkoetter testified that he was in an area known
for violence, homicides and criminal activity. He stated that the
nature of the area was a big factor in the establishment of a
police precinct in the area. Eikerenkoetter had had some
experience with super cans. He testified that prior to this
incident, he had observed a man pulling a super can in the same
area. He investigated the situation and the man fled. He left the
super can behind and it contained a stolen air conditioner. He
further testified that he had arrested people for concealing
property in super cans and had obtained convictions.
Eikerenkoetter testified that he approached Williams because he
suspected that he was concealing stolen property in the super
can.

The trial judge, recognizing that it was his responsibility to
determine the objectiveness of the officer’s actions, stated,
"I think the police officer, in this situation — if he
didn’t suspect something was going on . . . he wouldn’t be doing
his job. He would just be riding around out there." We find
credible evidence in the record to support the decision of the
trial judge that Officer Eikerenkoetter had reasonable suspicion
supported by articulable facts that "criminal activity may
be afoot" and was justified in detaining Williams for a
reasonable period to investigate to dispel or confirm his
suspicions.

In conjunction with a lawful investigative detention,

an officer may conduct a patdown search of a suspect’s outer
clothing if he can "’point to specific and articulable facts
which, taken together with rational inferences from those
facts,’" reasonably lead him to conclude, "in light of
his experience, that ‘criminal activity may be afoot’ and that
the suspect ‘may be armed and presently dangerous.’"

Stanley v. Commonwealth, 16 Va. App. 873, 875, 433
S.E.2d 512, 513 (1993) (citations omitted). Among the
circumstances to be considered in this situation are "the
‘characteristics of the area’ where the stop occurs, the time of
the stop, whether late at night or not, . . . any suspicious
conduct of the person accosted such as an obvious attempt to
avoid officers or any nervous conduct on the discovery of their
presence,’" and "the character of the offense which the
individual is suspected of committing." Williams v.
Commonwealth
, 4 Va. App. 53, 67, 354 S.E.2d 79, 87 (1987)
(citation omitted).

"’[T]he issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or
that of others was in danger.’" Taylor v. Commonwealth,
10 Va. App. 260, 264, 391 S.E.2d 592, 594 (1990) (citation
omitted). "’The purpose of [a] limited search [for weapons] is not to discover evidence of crime, but to allow the officer to
pursue his investigation without fear of violence.’" Bolda
v. Commonwealth
, 15 Va. App. 315, 319, 423 S.E.2d 204, 207
(1992) (citation omitted). Furthermore, the officer is entitled
to view the circumstances confronting him in the light of his
training and experience. See Terry, 392 U.S. at 27.

In this case, the same facts that support reasonable suspicion
that "criminal activity may be afoot" also support the
officers’ conclusion that "the suspect may be armed and
presently dangerous." These facts and circumstances will not
be repeated in detail but are applicable to show knowledge and
information possessed by the officers. These facts alone are
sufficient for the fact finder to conclude that Eikerenkoetter
was justified in patting down Williams’ outer clothing for
weapons.

At this time, Eikerenkoetter possessed the following facts:
(1) he was in an area known for violence, homicides and criminal
activity; (2) the time was 2:20 a.m., and the only light was from
the headlights of the police car; (3) he had arrested people for
concealing property in super cans, had obtained convictions, and
he now suspected that Williams was concealing property in a super
can, a serious criminal act; (4) Williams was pulling a super can
over a highway overpass, a place where a super can would not
normally be found, particularly at 2:20 a.m.; (5) Williams’
statement to the officer that nothing was in the can made his
activity even more suspicious under the circumstances; (6) super
cans are usually found at residences and not on highway
overpasses; and (7) the only reasonable use for a super can at
the time and place involved here is to conceal stolen property.
When Williams refused to cooperate with Eikerenkoetter and answer
questions about weapons or drugs, Williams became fearful for his
safety and that of his partner and he patted down Williams’ outer
clothing. We find that, under the totality of all of these
circumstances, Eikerenkoetter was justified in patting down
Williams for weapons for his safety and that of his partner. See
Nelson v. Commonwealth, 24 Va. App. 823, 485 S.E.2d 673
(1997) (suspicion that defendant had been involved in a burglary,
a potentially violent felony, justified a pat-down for weapons to
ensure officer safety during the stop).

During the pat-down, Eikerenkoetter felt a long, hard object
in Williams’ jacket pocket. He asked what the object was, but
Williams made no response. Believing the object to be a weapon,
the officer reached into the pocket and removed the item, which
was a fourteen inch long screwdriver. He felt other hard objects
in the pocket, removed them from the pocket, and found them to be
a pair of pliers, a pair of scissors, and wire cutters.

Based upon the "time of the morning and the
circumstances" Eikerenkoetter concluded that the items in
Williams’ possession were burglary tools. He again asked what was
in the super can, and Williams did not reply. Ernest then opened
the can and found the property stolen from a nearby store.

In the light of Eikerenkoetter’s prior experience with super
cans used to conceal evidence of theft, the time of night the
officer observed appellant pulling the can, and the nature of the
area where appellant was found, the officer had probable cause to
arrest appellant for the possession of burglary tools. See
Ford v. City of Newport News, 23 Va. App. 137, 143-44, 474
S.E.2d 848, 851 (1996) (to establish probable cause to arrest
there must be "a probability or substantial chance of
criminal activity, not an actual showing of such activity").

The police were entitled to search appellant and the super can
incident to appellant’s arrest for the possession of burglary
tools. See New York v. Belton, 453 U.S. 454, 460
(1981); Hall v. Commonwealth, 12 Va. App. 559, 564, 389
S.E.2d 921, 924 (1990). "So long as probable cause to arrest
exists at the time of the search, . . . it is
unimportant that the search preceded the formal arrest if the
arrest ‘"followed quickly on the heels of the challenged
search."’" Carter v. Commonwealth, 9 Va. App.
310, 312, 387 S.E.2d 505, 506-07 (1990) (quoting Wright v.
Commonwealth
, 222 Va. 188, 193, 278 S.E.2d 849, 852-53
(1981)). Thus, it was immaterial that appellant was not actually
placed under arrest until after the search of the super can.

For the reasons stated, the trial judge did not err in denying
the motion to suppress.

Affirmed.

Benton, J., dissenting.

I would hold that the police officers unlawfully seized and
searched Bruce Williams. Therefore, I dissent.

"[W]henever a police officer accosts an individual and
restrains [that individual's] freedom to walk away, [the officer] has ‘seized’ that person." Terry v. Ohio, 392 U.S. 1,
16 (1968). By the show of authority, the police may convey such a
threatening presence that "a reasonable person would have
believed that he was not free to leave." United States v.
Mendenhall
, 446 U.S. 544, 554 (1980). On appeal, we review
the determination of reasonable suspicion de novo. See
Ornelas v. United States, 517 U.S. ___, ___, 116 S. Ct.
1657, 1663 (1996).

The evidence proved that when the officers saw Williams with
the trash can, they stopped the car in the middle of the street
and parked diagonally with the headlights of their patrol car
shining upon Williams.[2] The officers got out of the
vehicle and accosted Williams, with one officer standing behind
him and the other officer in front of him. The officers did not
request permission to speak with Williams. Instead, they began
questioning him. They asked him what he was doing, what was in
the can, and whether he had weapons or drugs. Under these
circumstances, a reasonable person in Williams’ position would
not have believed that he was free to leave. See Mendenhall,
446 U.S. at 554.

Furthermore, the officers lacked a reasonable articulable
suspicion that Williams was engaged in criminal activity.
Although the principle is well established that "a police
officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating possibly
criminal behavior," Terry, 392 U.S. at 22, the
principle is equally well established that "the police
officer must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts,
reasonably warrant that intrusion." Id. at 21. The
officer’s testimony of the facts and observations that gave rise
to the stop must amount to more than an "inchoate and
unparticularized suspicion or ‘hunch.’" Id. at 27.
"When examining the officer’s articulable reasons for
stopping a person, we examine the objective reasonableness of the
officer’s behavior rather than the officer’s subjective belief
that the conduct indicates criminal activity." Riley v.
Commonwealth
, 13 Va. App. 494, 496-97, 412 S.E.2d 724, 725
(1992).

The officers stopped Williams "because of . . .
suspicions." The officers had no information that Williams
was wanted on a criminal charge and they had no information that
a criminal offense had occurred that might have involved
Williams. The officers’ observation that Williams was moving a
trash can simply was not a basis to reasonably believe that he
was engaged in criminal conduct.[3]
The guarantee of the Fourth Amendment protects persons who carry
their belongings in bags, boxes, and cans just as it protects
executives who carry locked attache’ cases. See Smith
v. Ohio
, 494 U.S. 541, 542 (1990).

Nothing about Williams’ actions was criminal or illegal. His
conduct, "viewed either in isolation as the officer
considered it or along with the other behavior as the court must
examine it, is utterly insufficient to generate a reasonable
suspicion that defendant was involved in criminal activity."
Zimmerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d
708, 710 (1988). Unusual conduct that the officer deems
suspicious does not ipso facto justify a stop. See
id. Even when "[t]he record suggests an
understandable desire to assert a police
presence    . . . , that purpose does not negate
Fourth Amendment guarantees." Brown v. Texas, 443
U.S. 47, 52 (1979).

Furthermore, the officer gave no particularized reason to
support frisking Williams. The officers did not ask for Williams’
name or address. They did not ask Williams if he would consent to
being questioned. One of the officers immediately began to
question Williams by asking, "what are you doing?"
Williams responded to all of the officers’ preliminary questions.
Williams did not, however, give his consent to be searched.
Nonetheless, the officer searched Williams’ pockets and the trash
can.

The officer testified that he always frisks people that he
stops "in that particular area" of the city. That
generalized statement of the officer’s usual conduct does not
support a finding that the officers had specific and particular
facts upon which to believe Williams was armed and dangerous.
"The ‘narrow scope’ of the Terry exception does not
permit a frisk for weapons on less than reasonable belief or
suspicion directed at the person to be frisked . . . ." Ybarra
v. Illinois
, 444 U.S. 85, 94 (1979).

In every encounter, "Terry requires reasonable,
individualized suspicion before a frisk for weapons can be
conducted." The officer’s generalized policy of frisking all
persons does not satisfy the restrictions imposed by Terry.
"Indeed, if everyone is assumed to be armed and dangerous
until the officer is satisfied that he or she is not, then
officers would be able to frisk at will — a result not
contemplated by the Fourth Amendment."

Sattler v. Commonwealth, 20 Va. App. 366, 369, 457
S.E.2d 398, 400 (1995) (citations omitted).

Because the record proved insufficient justification for the
stop, frisk, and search, I would reverse the trial judge’s
refusal to suppress the evidence.

I dissent.

 

 

FOOTNOTES:

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

[2] The evidence proved that the
officers saw Williams walking "southbound on Allen Avenue
between Parkwood and Grayland," in the City of Richmond. The
evidence further proved that "there are residences
there." Although some businesses were on nearby Cary Street,
the evidence proved Williams was stopped at the intersection of
Allen Avenue and Grayland Street in a residential area. He had
just crossed an overpass from Parkwood Avenue that led to a
residential neighborhood. No evidence proved that Parkwood Avenue
is not residential.

[3] I
cannot agree with the majority’s conclusion that "the only
reasonable use for a super can at the time and place involved
here is to conceal stolen property."

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