Virginia Lawyers Weekly VA Lawyers Weekly
Defendant’s actions while seated in his car – digging between and beneath the seats and behind him with his hands – gave police a reasonable suspicion that he was reaching for a weapon, which justified removing defendant from his car and seizing him. Cocaine found in the car was properly admitted as evidence at defendant’s trial for possession with intent to distribute cocaine.
Background
Two narcotics detectives patrolling a high-crime area drove by defendant Hill, who was seated alone in a parked car. They made a U-turn and as they neared the car, defendant began looking up and down and began making a lot of movements. The detectives, wearing police vests and badges, approached the car on foot. Hill looked up and immediately moved his right hand toward the rear seat area. The detectives, fearing that Hill might be reaching for a weapon, ordered him to show his hands at least seven to 10 times.
While being ordered to show his hands, Hill kept digging around in the vehicle and continued to do so even as one of the detectives opened the door and pulled Hill from the car. A detective checked under the front seat where Hill had been groping and found a baggie of cocaine.
Hill was arrested and charged with possession with intent to distribute cocaine. He moved to suppress the drugs found in his car. The trial court denied the motion. Hill entered a conditional guilty plea and appealed the trial court’s denial of his motion to suppress. The Court of Appeals affirmed. Hill has appealed.
Issue
Hill says the detectives seized him in violation of the reasonable suspicion standard announced in Terry v. Ohio, 392 U.S. 1 (1968).
“The issue in this case is not, as Hill assumes, whether the officers (both experienced detectives) had reasonable suspicion to believe that Hill was a drug dealer and thus had the authority to seize him to find out whether that suspicion was correct before performing a protective search for weapons. …
“The proper focus … is ‘the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.’ …
“Properly framed, the ultimate issue in this case is whether, at the time of the seizure, the detectives had reasonable suspicion to believe that they were about to be assaulted with a weapon.”
Analysis
“At the suppression hearing, the prosecutor argued that the detectives had reasonably suspected that Hill was ‘reaching’ for something, which ‘could be a weapon’ in the vehicle. … He made this argument based upon the detectives’ testimony that, as they were shouting 7 to 10 times to Hill ‘show me your hands,’ Hill turned his back to them and put ‘his head down in the vehicle as he was digging down, reaching.’ … (emphasis added). The seizing detective ‘thought [Hill] had a firearm’ given ‘the way he was acting and the way he was pulling away, reaching.’ … Immediately after the seizure, the detective ‘informed’ Hill that he “’thought [Hill] may have been reaching for a firearm.’ … (emphasis added). While the detective did not see a firearm, he understood that ‘if there was a firearm in that vehicle that it would have been concealed.’ … Accepting this testimony, the trial court held that Hill ‘did certain actions within the car that [the detectives testified] made them feel like they were in danger based on his actions’ and that ‘[t]he officers acted properly and in a constitutional manner and had reasonable suspicion for what they did.’ …
“The contextual facts amply support the trial court’s findings. Two experienced narcotics detectives walked up to Hill while he was parked alone on a secluded street in a high-crime, high-drug area of Portsmouth. Hill’s up-and-down glances and his curious movements within the vehicle drew the detectives’ attention when they pulled their vehicle beside Hill’s and observed him for approximately a minute.
“As soon as they began walking the approximately 25 feet from their parked vehicle to Hill’s, while wearing their police vests and badges, Hill turned away from them and started digging frantically between the driver’s and passenger’s seats. Concerned for their safety, the detectives repeatedly told Hill (as many as 7 to 10 times) to show his hands. He refused by saying nothing and not even looking at the detectives again as he continued digging. …
“As it turns out, Hill was reaching for his stash of cocaine. But the detectives did not know that at the time. They feared that Hill was reaching for a weapon, and they had to make a split-second decision. Doing nothing risked the possibility of being shot at point-blank range. Walking away risked the possibility of being shot in the back.
“The detectives thus did what any experienced police officer would and should do in this situation – physically seize the man and separate him from the potential weapon. …
“The trial court correctly denied Hill’s motion to suppress, and the Court of Appeals correctly affirmed that decision.”
Hill v. Commonwealth. Record No. 180681 (Kelsey; Millette, joined by Mims, dissenting) Aug. 30, 2019 (Court of Appeals). Stephanie Janelle Pough, Elliot Oneal Moody for Appellant. Robert Homer Anderson III for the Commonwealth. VLW 019-6-071, 28 pp.
