Andrews v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Clements

Argued at Chesapeake, Virginia

TRAVIS WESLEY ANDREWS

OPINION BY

v. Record No. 2085-00-1 JUDGE JEAN HARRISON CLEMENTS

FEBRUARY 12, 2002

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK

Westbrook J. Parker, Judge

(Michael P. Jones, on brief), for appellant.

Appellant submitting on brief.

Michael T. Judge, Assistant Attorney General

(Randolph A. Beales, Attorney General, on

brief), for appellee.

Travis Wesley Andrews was convicted in a bench trial of

robbery, in violation of Code § 18.2-58, abduction, in violation

of Code § 18.2-48, two counts of use of a firearm during the

commission of a felony, in violation of Code § 18.2-53.1,

possession of a firearm by a convicted felon, in violation of

Code § 18.2-308.2, resisting arrest, in violation of Code

§ 18.2-460, and carrying a concealed weapon, in violation of Code

§ 18.2-308(A). On appeal, Andrews contends (1) the trial court

erred in denying his motion to suppress the gun as the product of

an illegal search and seizure and (2) he was denied due process

of law because, after successfully challenging his initial

convictions, he was prosecuted on retrial for two additional

charges that were known at the time of the original prosecution.

For the reasons that follow, we affirm the convictions.

I. BACKGROUND

A. Factual Background Relating to Motion to Suppress

We view the evidence relevant to the motion to suppress and

all reasonable inferences fairly deducible from that evidence in

the light most favorable to the Commonwealth, the party

prevailing below. See Weathers v. Commonwealth, 32 Va. App. 652,

656, 529 S.E.2d 847, 849 (2000). So viewed, the evidence

established that, on the night of January 13, 1996, Lieutenant

Larry Wilson, a fourteen-year police veteran who commanded the

special investigations unit of the Suffolk City Police

Department, was in charge of a selective enforcement detail

working in a residential, racially mixed area of Suffolk known as

College Square. Wilson testified at the suppression hearing that

the detail of six officers was working in the College Square area

because several armed robberies of food-delivery drivers had

taken place there in the prior months. The most recent of those

robberies, reportedly committed by several young African-American

1

males acting in concert, had occurred on January 11, 1996.

1

The majority of the convictions that are the subject of

this appeal involve the commission of this crime.

- 2 -

At approximately 8:45 p.m., patrolling the College Square

area in an unmarked police car behind two marked police cars,

Wilson observed three young African-American males walking down

Brookwood Drive toward the police vehicles. 2 The two marked

police cars stopped, and uniformed officers got out of those cars

and approached the three individuals. Two of the individuals

stopped to talk to the officers, but the third, Andrews,

continued walking down the street without conversing with the

officers or looking back at them. Wilson testified that he

"thought that was somewhat odd that [Andrews], out of the group

of three, would continue to walk."

When Andrews reached Wilson's car, Officer John DeBusk, with

whom Wilson was patrolling, asked Andrews if he could talk to

him. Andrews continued walking past the car without responding.

Wilson then got out of the car and, walking "to him at an angle,"

approached Andrews from the front. DeBusk, who followed Wilson

from the car, initially remained behind and to the side of Wilson

during the encounter. Upon Wilson's approach, Andrews stopped

walking and Wilson engaged him in conversation. Wilson testified

that, in approaching Andrews, he did not "ask [Andrews] to stop"

or "place [his] hands on him in any way."

2

That portion of Brookwood Drive had no sidewalks.

- 3 -

Wilson, who was in plainclothes with his badge displayed,

identified himself as a police officer and asked Andrews his

name. Andrews, who was carrying a small cassette player and a

tape in his hand, replied that his name was Travis Morton. Asked

by Wilson where he lived, Andrews pointed to a duplex farther

down the street but could not identify the numerical address,

indicating he had been living there only a short time with his

cousin. When asked again where he lived, Andrews did not

respond. Asked how old he was, Andrews said he was eighteen.

Wilson testified that Andrews "looked extremely young" and "did

not appear to be eighteen."

While talking to Andrews, Wilson noticed that Andrews "had

something extremely heavy in the center pocket" of his jacket.

According to Wilson, Andrews appeared, despite having the

cassette player and tape in his hand, to be trying to support the

object against his body so it would not hang down in the pocket.

Wilson testified that, when not supported, the item moved forward

in the pocket and was noticeably heavy.

Wilson stated that, based on Andrews' suspicious conduct,

including his leaving his companions behind when they stopped to

talk with the police, his trying to support the object in his

pocket to make it less noticeable, and his dubious responses to

the questions posed about his residence and age, in conjunction

with the noticeably heavy weight of the object in Andrews'

pocket, he "felt [Andrews] had a weapon" in his pocket.

Concerned for his safety, Wilson asked Andrews "if he had any

knives, guns, or hand grenades on his person" and "told him to

place his hands out to his sides." Andrews stated that Wilson

- 4 -

was not going to search him, and Wilson agreed, explaining that

he was going to "only pat him down for weapons." Andrews

extended his arms to his sides. Wilson "reached directly for the

center pocket," touched the outside of it, and "knew right away

that it contained a gun." He informed DeBusk that he had located

a gun, and the two officers escorted Andrews to the front of the

police car. After directing Andrews to place his hands on the

hood of the car, Wilson removed a fully loaded .22 caliber

handgun with a sawed-off barrel from the center pocket. Wilson

then placed Andrews under arrest for possession of a concealed

weapon. Once in custody, Andrews gave the officers his correct

name and informed them he was only sixteen years old.

Andrews testified at the suppression hearing that he kept

walking when first approached by the uniformed police officers

because they asked to speak solely with one of his companions.

Andrews further testified that a plainclothes officer

subsequently approached him from the front with another

plainclothes officer not "too far behind." Andrews stated that

he stopped initially and the first plainclothes officer asked if

he could search him. Andrews asked the officer why he wanted to

search him and continued walking past the officer. According to

Andrews, the second plainclothes officer then asked if he could

search Andrews. Andrews told the officer he had no reason to

search him and kept walking. Andrews testified that the second

officer then reached for the center pocket of his jacket.

B. Procedural Background

In 1996, Andrews was convicted of robbery, use of a firearm

in the commission of a felony, possession of a firearm by a

- 5 -

convicted felon, carrying a concealed weapon, resisting arrest,

and possession of a handgun by a minor. 3 He was sentenced to

thirty-one years in prison, with twenty years suspended on

certain terms and conditions. Andrews' convictions were

subsequently vacated in accordance, apparently, with our decision

in Baker v. Commonwealth, 28 Va. App. 306, 504 S.E.2d 394 (1998),

aff'd per curiam, 258 Va. 1, 516 S.E.2d 219 (1999). 4

On May 26, 2000, Andrews was retried for the same criminal

conduct upon which the 1996 convictions were based. Prior to

trial, Andrews moved to suppress the gun as the product of an

illegal search and seizure. The trial court denied the motion,

finding that Officer Wilson had reasonable suspicion sufficient

to justify an investigative stop and pat-down search of Andrews.

Andrews was subsequently tried and convicted of robbery,

abduction, two counts of use of a firearm during the commission

of a felony, possession of a firearm by a convicted felon,

resisting arrest, and carrying a concealed weapon. The trial

court imposed a total sentence of forty-five years in prison,

twenty-nine years of which were suspended on certain terms and

conditions. This appeal followed.

II. MOTION TO SUPPRESS

"In reviewing a trial court's denial of a motion to

suppress, '[t]he burden is upon [the defendant] to show that

3

A judge of this Court denied Andrews' petition for appeal

of these convictions in Andrews v. Commonwealth, Record No.

2703-96-1 (July 1, 1997).

4

While both parties indicate this to be the case in their

respective briefs on appeal, the record fails to show why

Andrews' earlier convictions were vacated.

- 6 -

th[e] ruling, when the evidence is considered most favorably to

the Commonwealth, constituted reversible error.'" McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (alterations in original) (quoting Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).

"'Ultimate questions of reasonable suspicion and probable cause

to make a warrantless search' involve questions of both law and

fact and are reviewed de novo on appeal." Id. (quoting Ornelas

v. United States, 517 U.S. 690, 691 (1996)). "Similarly, the

question whether a person has been seized in violation of the

Fourth Amendment is reviewed de novo on appeal." Reittinger v.

Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000).

However, "we are bound by the trial court's findings of

historical fact unless 'plainly wrong' or without evidence to

support them and we give due weight to the inferences drawn from

those facts by resident judges and local law enforcement

officers." McGee, 25 Va. App. at 198, 487 S.E.2d at 261 (citing

Ornelas, 517 U.S. at 699).

Andrews contends he was seized by Officers Wilson and DeBusk

when they approached him from the front and started asking him

questions. That seizure, he further contends, violated his

Fourth Amendment rights because it was not based on a reasonable,

articulable suspicion that he was engaged in criminal activity or

armed and dangerous. Thus, he concludes, the trial court erred

in refusing to suppress the gun, a product of the unlawful

seizure.

The Commonwealth contends that the encounter was initially

- 7 -

consensual and that Andrews was not seized until Officer Wilson

patted him down. By then, the Commonwealth argues, Wilson had a

reasonable, articulable suspicion that Andrews was carrying a

concealed weapon and, thus, was engaged in criminal activity and

armed and dangerous. Hence, the Commonwealth concludes, the

limited pat-down search by Wilson was proper under the

circumstances. We agree with the Commonwealth.

Police-citizen confrontations generally

fall into one of three categories. First,

there are consensual encounters which do not

implicate the Fourth Amendment. Next, there

are brief investigatory stops, commonly

referred to as "Terry" stops, which must be

based upon reasonable, articulable suspicion

that criminal activity is or may be afoot.

Finally, there are "highly intrusive,

- 8 -

full-scale arrests" or searches which must be

based upon probable cause to believe that a

crime has been committed by the suspect.

McGee, 25 Va. App. at 198, 487 S.E.2d at 261 (citations omitted).

A consensual encounter occurs when

police officers approach persons in public

places to ask them questions, provided a

reasonable person would understand that he

or she could refuse to cooperate. Such

encounters need not be predicated on any

suspicion of the person's involvement in

wrongdoing, and remain consensual as long as

the citizen voluntarily cooperates with the

police.

Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870

(1992) (internal quotations and citations omitted).

Conversely,

[a] person is "seized" within the meaning of

the Fourth Amendment if, under the

circumstances presented, a reasonable person

would believe that he was not free to leave

the scene of an encounter with the police.

Thus, a seizure occurs when a law enforcement

officer, by physical force or some display of

authority, restrains in some manner a

citizen's freedom of movement. Only when

such restraint is imposed is there a basis

for invoking Fourth Amendment safeguards.

McCain v. Commonwealth, 261 Va. 483, 490-91, 545 S.E.2d 541, 545

(2001) (citations omitted). Circumstances that may be indicative

of a seizure include "the threatening presence of several

officers, the display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of language or

tone of voice indicating that compliance with the officer's

request might be compelled." United States v. Mendenhall, 446

U.S. 544, 554 (1980).

Here, Officer Wilson's confrontation with Andrews began as a

consensual encounter. Wilson approached Andrews in a public

- 9 -

place to ask him questions. He made no show of force or

authority that would cause a reasonable person to believe that he

or she was compelled to remain at the scene of the encounter or

otherwise cooperate with the police. Andrews, who had walked

away from encounters with the uniformed officers and Officer

DeBusk without speaking to them, stopped and spoke with Wilson.

Wilson did not physically restrain Andrews, command him to stop,

or block his departure. Likewise, he displayed no weapon.

Furthermore, DeBusk did not join Wilson in confronting Andrews,

but stayed behind Wilson during the encounter until informed that

Andrews had a weapon. Thus, we conclude Andrews was not "seized"

within the meaning of the Fourth Amendment when Wilson first

approached him and started asking him questions.

The trial court found that Wilson's pat-down search of

Andrews for weapons constituted a valid investigatory stop and

limited search for weapons pursuant to Terry v. Ohio, 392 U.S. 1

(1968). The Commonwealth does not challenge the trial court's

determination that Andrews was seized at the time of the pat-down

search. We, therefore, assume, without finding, that the

encounter between Wilson and Andrews lost its consensual nature

when Wilson conducted the pat-down search for weapons.

Accordingly, we must determine whether Wilson had a reasonable,

articulable suspicion that Andrews was engaged in wrongdoing and

was armed and dangerous when Wilson patted him down for weapons.

See Lowe v. Commonwealth, 33 Va. App. 656, 660-61, 536 S.E.2d

454, 456-57 (2000) (holding that a police officer "may conduct a

pat-down search for weapons if the officer can point to specific

and articulable facts which reasonably lead him to believe

- 10 -

criminal activity may be afoot and the person subjected to the

search may be armed and dangerous").

In determining whether a police officer had reasonable

suspicion to justify an investigatory stop and pat-down search,

we must view the circumstances "available to the officer" at the

time of the seizure and search through the eyes of a reasonable

person. Christian v. Commonwealth, 33 Va. App. 704, 711-12, 536

S.E.2d 477, 481 (2000) (en banc). However, "[i]n deciding

whether to make a stop or effect a pat-down search, an officer is

'entitled to rely upon "the totality of the circumstances—the

whole picture."'" Peguese v. Commonwealth, 19 Va. App. 349, 351,

451 S.E.2d 412, 413 (1994) (en banc) (quoting Lansdown v.

Commonwealth, 226 Va. 204, 212, 308 S.E.2d 106, 112 (1983)

(quoting United States v. Cortez, 449 U.S. 411, 417 (1981))).

The officer is also entitled "to view the circumstances

confronting him in light of his training and experience, and he

may consider any suspicious conduct of the suspected person."

James v. Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92

(1996) (citation omitted); see also Christian, 33 Va. App. at

714, 536 S.E.2d at 482 (noting that "the unique perspective of a

police officer trained and experienced in the detection of crime"

is a relevant factor in judging the reasonableness of police

conduct). Additionally, "the officer does not have to be

absolutely certain that the person is armed. If he reasonably

believes that the individual might be armed, the search is

warranted to protect himself or others who may be in danger."

Simmons v. Commonwealth, 217 Va. 552, 556, 231 S.E.2d 218, 221

(1977). Furthermore, as the Supreme Court noted in Illinois v.

- 11 -

Wardlow, 528 U.S. 119, 124-25 (2000):

In reviewing the propriety of an officer's

conduct, courts do not have available

empirical studies dealing with inferences

drawn from suspicious behavior, and we cannot

reasonably demand scientific certainty from

judges or law enforcement officers where none

exists. Thus, the determination of

reasonable suspicion must be based on

commonsense judgments and inferences about

human behavior.

Here, Wilson observed Andrews walk away from his companions

when they stopped to speak with the uniformed officers. Wilson,

a fourteen-year police veteran, thought it "somewhat odd" that

Andrews would leave his companions behind. Then, in responding

to Wilson's questions, Andrews did not provide his address and

gave the officer an obviously incorrect age. Moreover, Wilson

observed that Andrews had a heavy object in the center pocket of

his jacket and appeared to be trying to conceal it from the

officer by supporting it against his body to keep it from hanging

down in the pocket. Based on Andrews' suspicious conduct and the

apparent weight of the object in the pocket of Andrews' jacket,

Wilson believed that the object in the jacket was a weapon.

Concerned for his safety, he patted Andrews down.

Based on the totality of the circumstances and in light of

Wilson's observations and his training and experience as a police

officer, we find that Wilson had reasonable cause to believe that

Andrews might be carrying a concealed weapon and that the

investigatory stop and limited pat-down search for weapons were

warranted to protect himself and others who might be in danger.

We conclude, therefore, that, because the circumstances provided

Wilson an objective basis for suspecting Andrews was engaged in

- 12 -

criminal activity and that he was armed and dangerous, his

seizure of Andrews and his limited pat-down search of Andrews for

weapons were not in violation of Andrews' Fourth Amendment

rights. Hence, the trial court did not err in denying Andrews'

motion to suppress.

III. DUE PROCESS

Andrews contends he was denied due process of law on the

grounds that, after he successfully attacked his initial

convictions, the Commonwealth pursued additional charges on

retrial that were known to the Commonwealth at the time of the

original trial and that were based on the same conduct upon which

the original charges and convictions were based. Andrews argues

that, in pursuing the additional charges—abduction and use of a

firearm in the commission of the abduction—the Commonwealth

sought "to punish [him] for pursing [sic] his right of appeal,

and thus denied [him] of his due process rights as guaranteed by

the Fourteenth Amendment." Thus, Andrews concludes, the

abduction conviction and the use of a firearm conviction

associated with the abduction should be reversed, "in the ends of

justice."

The Commonwealth contends this claim is procedurally barred

on appeal because it was not preserved for appeal in accordance

with Rule 5A:18. We agree with the Commonwealth.

"The Court of Appeals will not consider an argument on

appeal which was not presented to the trial court." Ohree v.

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998);

see Rule 5A:18 ("No ruling of the trial court . . . will be

considered as a basis for reversal unless the objection was

- 13 -

stated together with the grounds therefor at the time of the

ruling, except for good cause shown or to enable the Court of

Appeals to attain the ends of justice."). The purpose of the

rule is to ensure that the trial court and opposing party are

given the opportunity to intelligently address, examine, and

resolve issues in the trial court, thus avoiding unnecessary

appeals. See Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736,

737 (1991) (en banc); Kaufman v. Kaufman, 12 Va. App. 1200, 1204,

409 S.E.2d 1, 3-4 (1991). "Rule 5A:18 applies to bar even

constitutional claims." Ohree, 26 Va. App. at 308, 494 S.E.2d at

488.

Here, Andrews did not raise before the trial court the claim

he presents to us. He neither moved to dismiss the subject

indictments on the ground that prosecution of those charges would

violate his due process rights nor made such an objection at

trial. Likewise, he sought no such relief from the trial court

following trial. Thus, the Commonwealth never had the

opportunity to respond at the trial level to Andrews' assertion

of prosecutorial vindictiveness, and the trial court never had

the opportunity to consider, much less resolve, the issue.

Moreover, our review of the record in this case does not

reveal any reason to invoke the "good cause" or "ends of justice"

exceptions to Rule 5A:18. Andrews had ample opportunity to bring

his due process claim to the attention of the trial court but

failed to do so. See Luck v. Commonwealth, 32 Va. App. 827, 834,

531 S.E.2d 41, 44 (2000) (holding that Rule 5A:18 bars

consideration of an issue where defendant had the opportunity to

raise that issue at trial but did not do so). Additionally,

- 14 -

Andrews failed to affirmatively demonstrate that a "miscarriage

of justice has occurred." Redman v. Commonwealth, 25 Va. App.

215, 221, 487 S.E.2d 269, 272 (1997) ("In order to avail oneself

of the [ends of justice] exception, a defendant must

affirmatively show that a miscarriage of justice has occurred,

not that a miscarriage might have occurred."). Because the

record in this case offers us no basis for determining why the

Commonwealth did not initially prosecute Andrews for abduction

and use of a firearm in the commission of abduction or why the

Commonwealth increased the number of charges on retrial, we can

only speculate as to whether the Commonwealth had valid,

nonvindictive reasons for pursuing the additional charges or

whether a miscarriage of justice has occurred. See Hardwick v.

Doolittle, 558 F.2d 292, 301 (5th Cir. 1977), cert. denied, 434

U.S. 1049 (1978) (holding that prosecutor can rebut a claim of

prosecutorial vindictiveness by establishing that the reason for

the increase in the number of charges was not to punish defendant

for exercising his rights, and noting that there are any number

of valid, nonvindictive reasons a prosecutor may have for

increasing the number of charges, including "mistake or oversight

in the initial action, a different approach to prosecutorial duty

by the successor prosecutor, or public demand for prosecution on

the additional crimes allegedly committed"); see also Twardy v.

Twardy, 14 Va. App. 651, 658, 419 S.E.2d 848, 852 (1992) (en

banc) (holding that appellant is responsible for "ensuring that a

complete record is furnished to an appellate court so that the

errors assigned may be decided properly").

Thus, because Andrews "failed, without good cause," to raise

- 15 -

before the trial court the due process argument he makes on

appeal and because he "has not proven that a manifest injustice

resulted, we will not consider the merits of this argument on

appeal." M. Morgan Cherry & Assocs. v. Cherry, ___ Va. App. ___,

___, ___ S.E.2d ___, ___ (2002). Compare, e.g., Allen v.

Commonwealth, 36 Va. App. 334, 339, 549 S.E.2d 652, 654 (2001)

(finding that consideration of the merits of a due process

argument that was not made to trial court was warranted under the

"ends of justice" exception to Rule 5A:18 because the record

affirmatively established that, "under the facts and

circumstances of [that] case," a manifest injustice had

occurred).

Accordingly, we affirm Andrews' convictions.

Affirmed.

- 16 -