Virginia Lawyers Weekly VA Lawyers Weekly
After police lawfully stopped defendant’s vehicle because of defective tag light, they had a reasonable suspicion that he was armed and dangerous based upon several factors, including a “large bulge” in his pocket, and they conducted a proper patdown. The defendant’s motion to suppress a firearm and cocaine was denied.
Background
Defendant’s motion to suppress evidence emanates from a traffic stop in the 900 block of St. Paul Street in Richmond on the evening of Nov. 5, 2018. The traffic stop was occasioned by a defective tag light which only partially illuminated defendant’s license plate. The resulting encounter led to the seizure of a firearm and a quantity of cocaine from defendant.
Vehicle stop
Defendant’s challenge begins with the initial stop of his vehicle. He argues that Virginia Code § 46.2-1013 governing rear tail lights does not apply to tag lights. In his view, the statute only requires the rear tail lights to illuminate license plates sufficiently to make them readable 50 feet from the vehicle. Consequently, defendant contends that the officer had no reason to stop his vehicle.
Officer Bruington stated that it was her understanding that all lights on a motor vehicle must be operable. In this case, she testified that with the right tag light out, she could not read the tag from 50 feet, as required by law. Officer Bruington’s construction of Virginia law is consistent with that of the Circuit Court of the City of Richmond and the Court of Appeals of Virginia.
Patdown
Defendant next argues that the officers could not have reasonably believed that defendant was armed and dangerous to justify a patdown, if a patdown occurred at all. Because the initial stop was lawful, the court turns to whether Officers Bruington and Digirolamo had reasonable suspicion that defendant was armed and dangerous justifying them to conduct a frisk.
This court concludes that, under the totality of circumstances, the officers had reasonable suspicion, based on objective and particularized facts, that defendant was armed and dangerous. First, the stop occurred in Gilpin Court, a high-crime area, as the officers testified. Second, defendant’s furtive behavior and movements indicated to the officers that he was carrying a weapon. Third, and perhaps most importantly, the officers noticed a “large bulge” in defendant’s pocket.
Thus, under the totality of circumstances – particularly given the officers’ observations of a bulge in defendant’s pocket and a black and metallic object protruding out of it – this court concludes that the officers had reasonable suspicion, based on particularized and objective facts, that defendant was armed and dangerous.
Scope of search
Defendant next argues that, even if the officers had reasonable suspicion to conduct a patdown, the officers’ search for the firearm was unreasonable. Defendant contends that the officers did not search defendant’s outer clothing but instead immediately reached into defendant’s pocket in violation of Terry v. Ohio, 392 U.S. 1 (1968).
Defendant largely relies on the videos from the officers’ body cameras. However, the videos do not fully and clearly depict the frisk the officers conducted. Thus, the court finds it cannot rely solely on these videos. However, both officers testified that Officer Digirolamo conducted a patdown of defendant’s outer clothing with the palm of his hand. Based on the officers’ testimony that Officer Digirolamo performed a patdown, with an open palm, on the outside of defendant’s clothing before pulling the firearm out of his pocket, this court finds that the officers complied with Terry and its progeny by performing a proper-and justified-frisk before reaching into defendant’s pocket to remove the firearm.
The final issue is whether the officers’ removal of the baggie containing crack cocaine was unreasonable, which was removed subsequent to the officers’ discovery of the firearm and defendant’s arrest for possession of a firearm by a felon. Because the court finds that the search for the firearm was proper, the arrest was also properly executed. Accordingly, the subsequent search revealing the drugs located on defendant’s person was reasonable as a search incident to arrest.
Defendant’s motion to suppress denied.
United States v. Murchison, Case No. 19-cr-138, Dec. 13, 2019. EDVA at Richmond (Hudson). VLW 019-3-596. 13 pp.
