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SIMMONDS v. COMMONWEALTH



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SIMMONDS

v.

COMMONWEALTH


SEPTEMBER 26, 2000

Record No. 2710-99-3

Present: Judges Coleman, Willis and Elder

Argued at Salem, Virginia

DENNIS GLENROY SIMMONDS

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG


Mosby G. Perrow, III, Judge

Richard S. Miller, Judge

MEMORANDUM OPINION[1] BY JUDGE SAM W. COLEMAN III

William F. Quillian III for appellant.

Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

Dennis Glenroy Simmonds was convicted in a
bench trial of possession of cocaine. As a result of the
conviction, the trial court revoked Simmonds’ suspended sentence
previously imposed in an unrelated conviction. Simmonds has
appealed from each judgment.

On appeal, Simmonds argues that the trial court
erred by denying his motion to suppress the cocaine. He contends
that the search for the cocaine was unreasonable because the
officers lacked probable cause to forcibly remove the cocaine
from his mouth. Simmonds further contends that the trial court
erred by finding that he violated the conditions of a previously
suspended sentence and erred in revoking the suspended sentence.
We disagree.

I. BACKGROUND

In November 1998, Lynchburg Police Department
Investigator R.A. Davidson was told that Chaka Herbert Raysor,
who was wanted on nine counts of murder as well as other
offenses, was in the Lynchburg area. During the ensuing
investigation, Davidson learned that Raysor had been associated
with Barbara Nowlin, also known as "B." Davidson was
told by a reliable, confidential informant, that Davidson could
purchase cocaine from Nowlin.

At approximately 6:00 p.m. on March 24, 1999,
Davidson received a call from the informant stating that Nowlin
would be at a local Subway shop with cocaine that she would be
selling to the informant. Davidson arrived at the Subway shop and
observed Nowlin’s car. Davidson also observed a male passenger in
Nowlin’s car, whom he thought might be Raysor. However, the
passenger was the defendant.

At approximately 6:30 p.m., Davidson observed
the confidential informant arrive and go behind the Subway shop
to conduct the drug transaction with Nowlin. "Almost
instantaneously" after the drug sale, the informant notified
Davidson of the sale and of the fact that Nowlin was still in
possession of cocaine. Davidson notified vice investigators to
stop Nowlin’s vehicle and also notified the tactical unit that he
believed Raysor was in the vehicle. The officers stopped Nowlin’s
vehicle moments later.

Investigator Wayne Duff made what he
characterized as a "high risk felony vehicle stop" of
Nowlin’s vehicle. The uniformed officers had their weapons drawn;
they gave verbal commands from covered positions for Nowlin and
the passenger to raise their hands and exit the vehicle. Rather
than exiting the vehicle as instructed and despite repeated
orders to show his hands, Simmonds remained in the vehicle and
repeatedly reached under the passenger seat and out of the view
of the officers.

The officers approached the vehicle and
physically removed Simmonds from the car. Once they had him out
of the car, the officers forcibly placed Simmonds, who continued
to struggle, on the ground in a prone position. Duff approached
Simmonds and immediately recognized that he was not Raysor. Duff
also noticed that Simmonds was making chewing motions and that he
had a "chalky white powdery substance around his lips."
Under the circumstances and based on Investigator Duff’s
experience, he concluded that the substance was probably cocaine
and that Simmonds was attempting to ingest it. Duff was aware
that swallowing cocaine posed a significant health hazard that
may be fatal. Duff informed another officer what he observed and
the two officers commanded Simmonds to stop chewing, which
Simmonds ignored. The officers applied pressure to Simmonds’
throat to prevent him from swallowing. They tried to force
Simmonds’ mouth open, but he "clamped" it shut and
continued to chew. After struggling for several seconds, one of
the officers sprayed a burst of "cap-stun" in Simmonds’
face. At that point, Simmonds spit out chunks of an off-white
substance, clear plastic bags, and a brown paper bag. The white
substance was determined to be cocaine.

II. ANALYSIS

A. Motion to Suppress

Simmonds argues that the trial court erred by
denying his motion to suppress the cocaine. He contends that the
search was an impermissible bodily intrusion. He contends that
even if he was lawfully seized, the officers acted unreasonably
when they forcibly removed the drugs from his mouth.

When we review a trial court’s denial of a
suppression motion, "[w]e view the evidence in a light most
favorable to . . . the prevailing party below, and
we grant all reasonable inferences fairly deducible from that
evidence." Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991) (citation omitted).
"[W]e are bound by the trial court’s findings of historical
fact unless ‘plainly wrong’ or without evidence to support
them." McGee v. Commonwealth, 25 Va. App. 193, 198,
487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas
v. United States
, 517 U.S. 690, 699 (1996)). "However,
we consider de novo whether those facts implicate
the Fourth Amendment and, if so, whether the officers unlawfully
infringed upon an area protected by the Fourth Amendment." Hughes
v. Commonwealth
, 31 Va. App. 447, 454, 524 S.E.2d 155,
159 (2000) (en banc) (citing McGee, 25 Va.
App. at 198, 487 S.E.2d at 261).

1. The Stop

"When the police stop a motor vehicle and
detain an occupant, this constitutes a ‘seizure’ of the person
for Fourth Amendment purposes, even though the function of the
stop is limited and the detention brief." Zimmerman v.
Commonwealth
, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988).

A police officer may conduct an investigatory
stop of a vehicle when he or she has an "articulable and
reasonable suspicion that a motorist is unlicensed or that an
automobile is not registered, or that either the vehicle or an
occupant is otherwise subject to seizure for violation of
law."

Commonwealth v. Spencer, 21 Va. App.
156, 159, 462 S.E.2d 899, 901 (1995) (quoting Delaware v.
Prouse
, 440 U.S. 648, 663 (1979)). "Reasonable
suspicion, like probable cause, is dependent upon both the
content of information possessed by police and its degree of
reliability." Alabama v. White, 496 U.S. 325, 330
(1990). "To determine whether an officer has articulated a
reasonable basis to suspect criminal activity, a court must
consider the totality of the circumstances, including the
officer’s knowledge, training, and experience." Freeman
v. Commonwealth
, 20 Va. App. 658, 661, 460 S.E.2d 261, 262
(1995) (citation omitted). Further, when determining the
existence of reasonable suspicion to detain a suspect that is
based, at least in part, on an informant’s tip, we again look to
the totality of the circumstances. See Boyd v.
Commonwealth
, 12 Va. App. 179, 186-87, 402 S.E.2d 914, 919
(1991). The court should conduct a "balanced assessment of
the relative weights of all the various indicia of reliability
(and unreliability) attending an informant’s tip." Illinois
v. Gates
, 462 U.S. 213, 234 (1983).

In "applying the
totality-of-the-circumstances analysis," the Supreme Court
has "consistently recognized the value of corroboration of
details of an informant’s tip by independent police work." Gates,
462 U.S. at 241. When making a warrantless arrest, an officer
"’may rely upon information received through an informant,
rather than upon direct observations,’" so long as the
officer has reasonable grounds to believe the informant’s
statement is true. Id. at 242 (citation omitted).

McGuire v. Commonwealth, 31 Va.
App. 584, 594-95, 525 S.E.2d 43, 48 (2000).

Here, the officers received a tip from a
reliable informant that "B" would be arriving at a
Subway restaurant and that she would have drugs. Shortly after
receiving the tip, Davidson went to the Subway shop and saw a
female driving a car that Davidson knew to be leased to Nowlin.
Davidson observed Nowlin’s car drive behind the Subway shop and
park alongside another vehicle. Davidson then observed the
occupants of both vehicles engage in a hand-to-hand transaction.
Immediately after the transaction, the informant called Davidson
and informed him that the woman driving Nowlin’s car was in
possession of cocaine. Based on the totality of the
circumstances, the evidence sufficiently proved that the police
had a reasonable suspicion that Nowlin was driving the car and
that she possessed cocaine. Therefore, the stop of Nowlin’s car
for the purpose of obtaining more information and investigating
the suspected crime was not unlawful.

2. The Seizure of Simmonds

Following a lawful traffic stop, an officer may
order the driver, see Pennsylvania v. Mimms, 434
U.S. 106, 111 n.6 (1977) (per curiam), and any
passengers to exit the car, see Maryland v. Wilson,
519 U.S. 408, 414-15 (1997). In Wilson, the United States
Supreme Court held that "an officer making a traffic stop
may order passengers to get out of the car pending completion of
the stop." Id. at 415. The Court reasoned that:

danger to an officer from a traffic stop is
likely to be greater when there are passengers in addition to the
driver in the stopped car. While there is not the same basis for
ordering the passengers out of the car as there is for ordering
the driver out,

the additional intrusion on the passenger is
minimal.

Id. at 414-15.

Here, the officers, in effecting the stop of
Nowlin’s car upon the belief that she had just engaged in a drug
sale and was still in possession of drugs, were permitted to
order Simmonds out of the car. Believing that Nowlin had just
committed a felony, they ordered the occupants to raise their
hands and to exit the vehicle. The officers repeatedly ordered
Simmonds to show his hands; but instead, Simmonds repeatedly
reached under the passenger’s seat. The officers forcibly removed
Simmonds from the car, placed him on the ground in the prone
position, and handcuffed him.

Handcuffing Simmonds after he was removed from
the car was not illegal and did not transform the investigatory
detention into an arrest. "Brief, complete deprivations of a
suspect’s liberty, including handcuffing, ‘do not convert a stop
and frisk into an arrest so long as the methods of restraint used
are reasonable to the circumstances.’" Thomas v.
Commonwealth
, 16 Va. App. 851, 857, 434 S.E.2d 319, 323
(1993), aff’d on reh’g en banc, 18 Va. App. 454, 444
S.E.2d 275 (1994). Despite repeated orders to show his hands,
Simmonds twice reached under the car seat. Even after he was
forcibly removed from the car, he still continued to struggle
with the officers. Based upon the suspected drug activity,
Simmonds’ refusal to show his hands and exit the car on command,
and his furtive movements, the officers were reasonable in
forcibly removing Simmonds from the car and in handcuffing him.

3. The Search

If an officer has reason to believe that a
person is committing a felony in his presence by possessing
contraband or a controlled substance, the officer has probable
cause to arrest the individual without a warrant. When an officer
has probable cause to arrest a person, the officer may search the
person, particularly where the evidence is of a highly evanescent
nature.

Buck v. Commonwealth, 20 Va. App.
298, 304, 456 S.E.2d 534, 536-37 (1995) (citations omitted).
"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." Richards
v. Commonwealth
, 8 Va. App. 612, 616, 383 S.E.2d 268, 271
(1989) (citations omitted).

Investigator Duff’s observations, in light of
his training and experience, gave him probable cause to believe
that Simmonds had cocaine in his mouth that he was attempting to
ingest to avoid detection. Before forcibly removing Simmonds from
the vehicle, Simmonds made "ducking motions" out of the
officers’ view. Once Simmonds was removed from the vehicle and
physically restrained, Duff noticed a "chalky white powdery
substance around [Simmonds] lips" and he was making a
chewing motion. The officers had the additional reason to believe
that the substance was cocaine because the driver of the vehicle
had reportedly just sold cocaine and still possessed cocaine in
the vehicle. Duff testified that based on his experience he knew
that people commonly try to dispose of cocaine by chewing and
swallowing it. Duff further testified that when people ingest
cocaine, the cocaine leaves a white chalky substance on the lips.
Simmonds ignored orders to open his mouth and spit out the
contents. Simmonds resisted when officers applied pressure to his
throat and attempted to forcibly open his mouth. The officers
acted reasonably in administering a burst of "cap-stun"
to force Simmonds to spit out the drugs because there was a risk
that Simmonds would destroy the evidence and jeopardize his own
health. See Buck, 20 Va. App. at 304, 456 S.E.2d at
537 (finding officers’ use of physical force to cause defendant
to expel drugs was reasonable where defendant was destroying
evidence and creating a danger to his own health and safety); see
also Schmerber v. California, 384 U.S. 757, 770-71
(1966) (stating that in deciding whether an intrusive body search
is permissible, the court must consider whether the officer had a
clear indication that incriminating evidence would be found,
whether exigent circumstances existed if no warrant was obtained,
and whether the officer extracted the evidence using a reasonable
method and in a reasonable manner). Based on the objective,
reasonable belief that Simmonds was committing a crime, the
officers had probable cause to arrest Simmonds, thereby rendering
the forcible search and removal of the drugs from his mouth
lawful.

Accordingly, we hold that the trial court did
not err by denying Simmonds’ motion to suppress the cocaine.

B. Revocation of Suspended
Sentence

Simmonds had previously been convicted of
felonious assault and battery of a law enforcement officer and
was sentenced to two years imprisonment, with one year and six
months suspended upon the condition that he be of good behavior
for a period of three years. As a result of his conviction for
possession of cocaine, the trial court found that Simmonds
violated his probation and revoked his suspended sentence.

On appeal, Simmonds argues that the trial court
erred in finding that he violated his probation and in revoking
his suspended sentence for assaulting a police officer because
the cocaine conviction was on appeal and had not become final.

Pursuant to Code ? 19.2-306, "[t]he
court may, for any cause deemed by it sufficient which occurred
at any time within the probation period, . . . revoke the
suspension of sentence and any probation."

"A revocation . . . must be
based on reasonable cause but a court has broad discretion in
making such a determination." Patterson v. Commonwealth,
12 Va. App. 1046, 1048, 407 S.E.2d 43, 44 (1991) (citation
omitted). "To put the matter another way, the sufficiency of
the evidence to sustain . . . revocation is a matter
within the sound discretion of the trial court, . . .
reversible only upon a clear showing of an abuse of such
discretion." Slayton v. Commonwealth, 185 Va. 357,
367, 38 S.E.2d 479, 484 (1946); see Holden v.
Commonwealth
, 27 Va. App. 38, 41, 497 S.E.2d 492, 493 (1998).

Resio v. Commonwealth, 29 Va. App. 616,
621, 513 S.E.2d 892, 895 (1999).

"[A]n alleged violation upon which
revocation is based need not be proven beyond a reasonable
doubt." Patterson, 12 Va. App. at 1048, 407 S.E.2d at
44. "[E]vidence that ‘the trier of fact in a criminal
proceeding found beyond a reasonable doubt that [a] defendant
violated a state law is sufficient . . . to support’
revocation of a suspended sentence, notwithstanding the pendency
of such conviction on appeal." Resio, 29 Va. App. at
622, 513 S.E.2d at 895 (quoting Patterson, 12 Va. App. at
1049, 407 S.E.2d at 45).

Here, Simmonds conceded that he was convicted
of possession of cocaine and that the conviction was a violation
of his suspended sentence. The trial court, therefore, based
solely on the felony conviction, properly revoked Simmonds’
suspended sentence subject to the conviction being upheld on
appeal. Because we have upheld Simmonds’ conviction for
possession of cocaine, which was the basis for the revocation, we
uphold the

revocation of the suspended sentence. See
Patterson, 12 Va. App. at 1049, 407 S.E.2d at 45.

Affirmed.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for
publication.

 

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