Opinion
Docket No.: CR18-1840
12-28-2018
Re: Commonwealth of Virginia v. Trevon Baxter
Oksana LaBounty, Esquire Office of the Commonwealth's Attorney City of Norfolk 800 East City Hall Avenue, Suite 600 Norfolk, Virginia 23510 Armon D. Pollack, Jr., Esquire Norfolk Public Defender's Office 125 St. Paul's Boulevard, Suite 600 Norfolk, Virginia 23510
Oksana LaBounty, Esquire
Office of the Commonwealth's Attorney
City of Norfolk
800 East City Hall Avenue, Suite 600
Norfolk, Virginia 23510 Armon D. Pollack, Jr., Esquire
Norfolk Public Defender's Office
125 St. Paul's Boulevard, Suite 600
Norfolk, Virginia 23510 Dear Counsel:
Today the Court rules on the Motion to Suppress (the "Motion") filed by Defendant Trevon Baxter, in which he seeks to suppress any evidence "seized in violation of his freedom from unreasonable search and seizure." The specific issue before the Court is whether a firearm seized from Baxter after a Terry stop and frisk should be suppressed. The Court finds, based on the totality of the circumstances, that the police officers who encountered Baxter had the requisite reasonable suspicion to conduct a Terry stop and, based on Baxter's actions—including his refusal to remove his hands from his pockets when directed to do so—the officers were justified in seizing Baxter and conducting a protective frisk. The Court therefore DENIES Baxter's motion to suppress the investigatory stop and search of Baxter and the seizure of the firearm recovered from his person.
Background
On April 20, 2018, Officers Luketic and Sentare of the Norfolk Police Department were patrolling Calvert Square, a Norfolk Redevelopment and Housing Association ("NRHA") housing complex in the City of Norfolk. (Tr. 7.) Officer Luketic testified that Calvert Square has "high crime and high narcotic usage" and that he had previously conducted stops and searches and recovered weapons in the area. (Tr. 8.) According to the officer, the area has "a high rate of shootings, gunshot disturbances, gunshot victims, [and] people with firearms" and is "a high narcotic, firearm, gang, activity area." (Tr. 10-11.)
While in their patrol car, the officers observed Baxter "standing between two housing areas in the grass area on NRHA property" around 6:00 p.m. (Tr. 9.) Officer Luketic observed "a large bulge" under Baxter's leather jacket, which, based on his training and experience, "appeared to be a firearm on [Baxter's] right area side." (Tr. 10.) Specifically, the officer believed that a firearm was "inside [Baxter's] waistband area," and he "could see kind of like an L shape" through the jacket. (Tr. 11.) Officer Luketic testified that he thought Baxter might be illegally concealing a firearm and that he and Officer Sentare decided to investigate further. (Tr. 25. )
Sunset that evening was at approximately 7:44 p.m.
The officers eventually exited their vehicle and approached Baxter. (Tr. 17.) They observed Baxter with his hands in his pockets and, according to Officer Luketic, Officer Sentare instructed Baxter, "Get your hands out of your pockets. Get your hands out of your pockets." (Tr. 26, 27.) Baxter did not comply. (Tr. 12, 26.) Based on Baxter's noncompliance, as well as the neighborhood being a high-crime and high-drug area, Officer Luketic testified that he was concerned about "[s]afety to [him]self and [his] partner and the public." (Tr. 28.) Then "Officer Sentare pulled both [of Baxter's] hands behind his back." (Tr. 22.) While Officer Sentare had Baxter restrained, Officer Luketic tapped the side of Baxter's leg—through Baxter's leather jacket—where he suspected the firearm to be, and he "felt a firearm." (Tr. 12-13, 24.) According to Officer Luketic, "[he] knew from [his] training and experience that it was a firearm." (Tr. 23.) Officer Luketic then retrieved a Glock 19 nine-millimeter pistol with a thirty-round extended magazine from Baxter. (Tr. 18.)
The officers did not inquire of Baxter whether he had a concealed weapon permit before retrieving the firearm from Baxter's person. (Tr. 31.)
Baxter was charged with possession of a firearm by a convicted felon, carrying a concealed weapon, and carrying a loaded firearm in a public area. He subsequently filed a motion to suppress the search of his person and the seizure of the firearm.
Position of the Parties
Baxter's Position
Baxter claims that both the Terry stop and the seizure of the handgun were unconstitutional because the officers did not have reasonable suspicion to conduct the stop and search. He argues that once Officer Sentare told him to remove his hands from his pockets, any consensual encounter ceased, and a seizure commenced. Up until then, Officer Luketic had only observed a bulge in Baxter's clothing, which Baxter argues was insufficient to create the requisite reasonable, articulable suspicion for the officers to conduct a Terry stop. Because in Virginia it is lawful for someone to have a concealed weapon if he or she has a permit, Baxter asserts that the officers' failure to pursue questioning regarding a possible concealed weapon permit before handcuffing him makes any belief that he was illegally carrying a concealed weapon a mere hunch and not a reasonable suspicion. Baxter argues that the search and seizure therefore were unconstitutional and that the recovered firearm should be suppressed.
The Commonwealth's Position
The Commonwealth argues that both the Terry search and the seizure were constitutional because the officers had a reasonable suspicion that Baxter was carrying a concealed weapon in a known high-crime and high-drug area and that he posed a safety threat to them. The Commonwealth also asserts that the officers knew that the policy in that particular NRHA housing complex, pursuant to Virginia law, prohibited residents from carrying a concealed weapon without a permit. The Commonwealth also notes that Officer Luketic saw an "L-shaped bulge" in the defendant's waistband, which he reasonably believed to be a concealed weapon. The Commonwealth argues that, based on the totality of the circumstances, Officer Luketic had a reasonable suspicion that Baxter was carrying a weapon and was armed and dangerous, which justified the Terry stop and frisk and the subsequent seizure of the firearm.
Analysis
Legal Standard
A defendant seeking to suppress evidence bears the burden of proving factual circumstances giving rise to a reasonable expectation of privacy, which is the burden of persuasion. Testa v. Commonwealth, 55 Va. App. 275, 282 n.3, 685 S.E.2d 213, 216 n.3 (2009). In response, the Commonwealth has the burden to prove admissibility of the seized evidence by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986). For a warrantless search, the Commonwealth also has the burden of establishing an exception to the warrant requirement. Walls v. Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986).
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, full-scale arrests" or searches which must be based upon probable cause to believe that a crime has been committed by the suspect.McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citations omitted).
"Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public space." Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion)). Because such encounters are voluntary, the approached citizen has the "right to ignore [the] interrogator and walk away." Terry v. Ohio, 392 U.S. 1, 33 (1968) (Harlan J., concurring). The consensual encounter ends and a seizure begins when a reasonable person would feel that he is not free to disregard the officer's request, terminate the encounter, or walk away. United States v. Drayton, 536 U.S. 194, 201-202 (2002).
If "'a police officer observes unusual conduct which leads him to reasonably conclude in light of his experience that criminal activity may be afoot' and that the suspect 'may be armed and presently dangerous,' and he identifies himself to the suspect, then he is entitled to conduct a limited search of the suspect's outer clothing for the purpose of discovering weapons." Simmons v. Commonwealth 217 Va. 552, 554, 231 S.E.2d 218, 220 (1977) (quoting Terry, 392 U.S. at 30).
"Reasonableness is judged from the perspective of a reasonable officer on the scene allowing for the need of split-second decisions." Scott v. Commonwealth, 20 Va. App. 725, 727, 460 S.E. 2d 610, 612 (1995) (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)). In analyzing such reasonableness, courts "must consider the totality of the circumstances." Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 465 (2003). In such an analysis, courts have recognized as relevant the "characteristics of the area surrounding the stop, the time of the stop, the specific conduct of the suspect individual, the character of the offense under suspicion, and the unique perspective of a police officer trained and experienced in the detention of crime." McCain v. Commonwealth, 275 Va. 546, 554, 659 S.E.2d 512, 517 (2008).
Discussion
The Court has considered the pleadings, evidence and oral argument presented at the Hearing, and applicable authorities. The Court now rules as follows.
The Commonwealth asserts that Officer Luketic and Officer Sentare, based on their training and experience, had a reasonable suspicion that Baxter illegally possessed a concealed weapon. It also contends that Baxter, through his actions—including his refusal to remove his hands from his pockets—posed a safety threat to the officers and the public. The Commonwealth argues that the Terry pat-down of Baxter and the subsequent seizure of the firearm therefore were constitutionally sound. Based on the totality of the circumstances, the Court agrees.
1. The Encounter with Baxter Initially Was Consensual.
The officers' encounter with Baxter initially was consensual. During a routine patrol, Officer Luketic observed a large bulge that formed "an L shape" inside Baxter's waistband area, the source of which was concealed beneath the leather jacket Baxter was wearing. Based on their training and experience, the officers suspected Baxter had a concealed firearm. The officers approached Baxter in what they intended to be a consensual encounter. The meeting occurred in a high-crime, high-drug area with which Officer Luketic was familiar. In fact, he had previously been personally involved in many stops in the area, during which he conducted searches and recovered multiple illicit weapons. Officer Luketic also testified that the area in question had a high rate of shootings, other firearm incidents, and gang-related activity.
When Officer Sentare initially approached Baxter, Baxter's hands were inside his jacket pockets. Officer Sentare instructed Baxter to take his hands out of his pockets, and Baxter refused to comply. At this point, Officer Sentare grabbed Baxter's hands, ending the consensual encounter, and put them behind Baxter's back while Officer Luketic patted down the side of Baxter's leg where the suspected firearm was. United States v. Drayton, 536 U.S. 194, 201-02 (2002) (holding that a consensual encounter ends, and a seizure begins, when a reasonable person would feel that he is not free to, inter alia, walk away).
The question before the Court, then, is whether—at the time they conducted the Terry stop and frisk—the officers had a reasonable, articulable suspicion that (1) criminal activity was afoot and (2) Baxter was armed and dangerous. See United States v. Burton, 228 F.3d 524, 528 (2000) (holding that "an officer may not conduct [a] protective search for purposes of safety until he has a reasonable suspicion that supports the investigatory stop").
2. The Officers Had a Reasonable, Articulable Suspicion that Criminal Activity Was Afoot, Which Justified the Investigatory Stop.
The Commonwealth has the burden to initially prove that the officers had a reasonable, articulable suspicion that criminal activity was afoot in order to elevate a consensual encounter into an investigatory stop. In deciding this, the Court considers the totality of the circumstances: the question is not whether an individual factor taken alone would be susceptible to a legitimate explanation, but rather whether taken together the various factors are sufficient to "form a particularized and objective basis" for an officer's suspicion. United States v. Arzivu, 534 U.S. 266, 277 (2002). Relevant factors include the characteristics of the area in which the encounter occurs, the unique training and experience of the police officers involved, the conduct of the suspect, and the nature of the offense being investigated. See McCain v. Commonwealth, 275 Va. 546, 554, 659 S.E.2d 512, 517 (2008).
The court also opines that "the time of the stop" is a relevant factor. McCain v. Commonwealth, 275 Va. 546, 554, 659 S.E.2d 512, 517 (2008). The encounter here occurred at approximately 6:00 p.m., late in the day but prior to sunset. Neither side argued that this factor was relevant to the analysis. --------
a. Characteristics of the Area .
Here, the neighborhood in which the encounter occurred is a high-crime, high-drug, gang-associated area. Although the likelihood that a given individual is armed is significant in such a neighborhood, this fact alone is insufficient to satisfy the requisite reasonable, articulable suspicion that criminal activity is afoot. See id. at 552, 659 S.E.2d at 516 ("The character of the location and the time at which a person is observed are relevant factors, but they do not supply a particularized and objective basis for suspecting criminal activity on the part of the particular person stopped."). The Court also recognizes that had Baxter possessed a valid concealed weapon permit, walking through the NRHA housing complex with a concealed firearm would not constitute a criminal or illicit activity.
b. Training and Experience of the Officers .
With respect to the training and experience of the officers, Officers Luketic and Sentare were familiar with the area and at least Officer Luketic had made previous arrests there that involved illegal firearms. The officers were aware that the housing complex had a high number of prior shootings and other firearm incidents. Their training and experience informed their suspicion that Baxter might be illegally concealing a firearm.
c. Conduct of the Suspect .
When reviewing the conduct of the suspect, courts often are presented evidence regarding the suspect's nervousness. Nevertheless, even when combined with a high-crime area, demonstrated nervous conduct usually is not sufficient to provide reasonable suspicion to conduct a Terry stop and frisk. See Thompson v. Commonwealth, 54 Va. App. 1, 10-11, 675 S.E.2d 832, 836 (2009) (discussing cases). The Virginia Court of Appeals in Thompson noted that the absent factor in such cases is "the specific act of a furtive gesture to suggest that the suspect is armed" or a suspect's refusal to show his hands. Id. at 10, 675 S.E.2d at 836.
Here, despite Baxter not exhibiting any observable nervous behavior, other factors—most notably his refusal to remove his hands from his pockets—weigh heavily in favor of the Commonwealth. Officer Luketic observed an L-shaped bulge in Baxter's clothing, which suggested a concealed weapon. The Virginia Supreme Court previously found that an officer can reasonably conclude that a suspect is concealing a weapon when there is some indicia in his clothing that a weapon is hidden beneath it. See, e.g., Simmons v. Commonwealth 217 Va. 552, 555-56, 231 S.E.2d 218, 221 (1977) (finding that the officer was justified in searching the suspect for weapons when his warm-up jacket was sagging in the front). Most importantly, Baxter elected to keep his hands concealed in the vicinity of the suspected weapon, despite Officer Sentare's repeated order that Baxter remove his hands from his pockets.
d. Nature of the Offense Being Investigated .
The nature of the offense being investigated—a possible illegally concealed weapon—makes this case particularly intriguing. It is not enough that the officers perceived that Baxter was armed and dangerous to justify a Terry protective frisk. They must have first had a reasonable, articulable suspicion that criminal activity was afoot to justify the investigatory stop. This was aptly illustrated in a pair of cases decided by the U.S. Court of Appeals for the Fourth Circuit: United States v. Burton, 228 F.3d 524 (4th Cir. 2000), and United States v. Mayo, 361 F.3d 802 (4th Cir. 2004).
In Burton, several police officers, while serving outstanding warrants in a neighborhood, approached Burton, who was standing at a pay phone with his right hand in his coat pocket. 228 F.3d at 526. The officers, after identifying themselves, requested Burton's identification. Id. Burton neither responded nor moved. Id. One of the officers then asked Burton to remove his hand from his jacket pocket. Id. Burton again neither responded nor moved. Id. One of the officers then moved behind Burton, reached around him, thrust his hand into Burton's jacket, and, after a struggle, recovered a handgun from Burton. Id. The officers testified that Burton's refusal to remove his hand from his pocket made them feel "uneasy about [their] safety." Id. The officers conceded, however, that they did not suspect that criminal activity was afoot, although they feared for their safety while talking to Burton. Id. The trial court denied the motion to suppress the seized handgun, finding that "the officers were entirely within their rights not only to engage in the encounter, but then to take precautionary measures which they took." Id. (quoting the district court). On appeal, the Fourth Circuit disagreed, holding that "an officer may not conduct a protective search to allay a reasonable fear that a suspect is armed without first having a reasonable suspicion that supports an investigatory stop." Mayo, 361 F.3d at 806 (discussing Burton). Because the officers conceded that they had no reasonable suspicion that criminal activity was afoot, the court found that they lacked the necessary justification for an investigatory stop, and the seized evidence was suppressed. The case therefore stands for the following propositions:
Burton must be understood to authorize a protective frisk only when a Terry stop is authorized by a reasonable suspicion that criminal activity is afoot. To conduct the protective frisk there must also be reasonable grounds to believe that the suspect is armed and dangerous. Absent a reasonable suspicion of criminal activity, a police officer may not simply approach a citizen, as part of a police-citizen encounter, and frisk the citizen because the officer believes that his safety is at risk.Mayo, 361 F.3d at 807.
In Mayo, police officers were driving through a "high-crime" neighborhood when they observed Mayo standing in the middle of the street talking to someone on the side of the street. Id. at 803. As the police vehicle approached, Mayo put his hand into his jacket pocket and walked onto property with posted no-trespassing signs. Id. One of the officers observed that Mayo either had something heavy in his pocket or was pushing his hand down into his pocket, a movement the officer believed was consistent with maintaining control of a weapon while moving. Id. The officers shortly thereafter observed Mayo emerge from the property, freeze momentarily, and then start walking along the side of a building. Id. at 803-04. One of the officers approached Mayo, asked if he could speak with him, and requested that he remove his hand from his pocket, which Mayo did. Id. at 804. The officer then observed Mayo act like he was in shock, and when the officer asked Mayo if he had a weapon, Mayo looked down and did not respond. Id. Mayo's actions made the officer nervous, prompting him to inform Mayo that he was going to frisk him, whereupon the officer retrieved a pistol from the pocket in which Mayo previously had his hand. Id.
The district court found that the officer's search of Mayo fell "squarely within the holding of Burton" and suppressed the seized evidence. Id. (quoting the district court). The Fourth Circuit reversed, finding that—unlike in Burton—the officer in Mayo had reasonable suspicion that criminal activity was afoot based on the high-crime location, the officer's' observation that Mayo appeared to be carrying a concealed weapon, Mayo's actions—including his hand concealment—upon seeing the officer, and Mayo's "unusually nervous behavior." Id. at 807-08. Specifically, the court found that the suspected criminal activity afoot involved Mayo possibly carrying a concealed weapon without a permit in violation of Virginia law. Id. at 807.
The facts in Mayo are analogous to those in the present case. Both cases involved officers patrolling a high-crime areas where shootings had previously occurred. Both cases involved officers who had prior experience conducting stops related to the seizure of illegal weapons and drugs in the area in question. The officer in Mayo observed the suspect carrying something heavy or pushing his hand down into his jacket, concealing one of his hands and leading the officer to reasonably believe that the suspect was carrying a concealed weapon; similarly, Officer Luketic testified to observing an L-shape bulge that he believed to be a firearm beneath Baxter's jacket prior to approaching Baxter and, upon being confronted, Baxter's hands were concealed in his jacket pockets.
Based on the totality of the circumstances, the Court finds—as the Fourth Circuit did in Mayo—that the officers had a reasonable, articulable suspicion that criminal activity was afoot, namely, that Baxter was illegally carrying a concealed weapon. The officers therefore were justified in conducting an investigatory stop of Baxter.
3. The Officers Reasonably Concluded that Baxter Was Armed and Dangerous, Which Justified a Terry Frisk.
Having found that the officers had a reasonable, articulable suspicion that criminal activity was afoot—thereby justifying an investigatory stop of Baxter—the Court must next determine whether the officers reasonably concluded that Baxter was armed and dangerous. If so, the officers were permitted to frisk Baxter "by patting his outer clothing 'in an attempt to discover weapons which might be used to assault [the officers].'" United States v. Mayo, 361 F.3d 802, 805 (4th Cir. 2004) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)); see also United States v. Burton, 228 F.3d 524, 528 (4th Cir. 2000) ("Once an officer has a basis to make a lawful investigatory stop, he may protect himself during that stop by conducting a search for weapons if he 'has reason to believe that the suspect is armed and dangerous.'" (quoting Adams v. Williams, 407 U.S. 143, 146 (1972))). The Court finds that the officers reasonably concluded that Baxter was armed and dangerous.
As discussed supra, the Court finds that the officers reasonably believed that Baxter might be illegally carrying a concealed weapon. When they approached Baxter, he, unlike Mayo, elected to keep his hands concealed, despite Officer Sentare's order that Baxter remove his hands from his pockets. Of significant note, one of his concealed hands remained in the vicinity of the suspected weapon. Albeit not a furtive gesture, Baxter's action—or inaction, in light of the officer's order—is relevant in determining whether the officers reasonably believed that he was armed and dangerous. See, e.g., Jones v. Commonwealth, 52 Va. App. 548, 557, 560-61, 665 S.E.2d 261, 266, 267 (2008) (finding that the officer's belief that the suspect was armed and dangerous was justified when he refused to show his hands and reached toward the floorboard of the car he was in, and opining that "a reasonable articulable suspicion that [the suspect] possessed a concealed weapon . . . ipso facto rendered him potentially armed and dangerous"); Welshman v. Commonwealth, 28 Va. App. 20, 34, 502 S.E.2d 122, 129 (1998) (en banc) (finding that "[t]he refusal of a person detained to show his hands" may trigger the necessity to frisk the person for weapons); cf. Thompson v. Commonwealth, 54 Va. App. 1, 12, 675 S.E.2d 832, 837 (2009) (finding that the lack of furtive gestures or hands concealment in the record weighed against a finding that the officer had a reasonable suspicion that the defendant was armed and dangerous). Given Baxter's refusal to remove his hands from the vicinity of the suspected weapon, the Court finds that the officers reasonably believed that Baxter was both armed and dangerous. The officers therefore were constitutionally permitted to conduct a Terry frisk of Baxter's outer clothing for the purpose of protecting themselves and the public.
Moreover, the officers pursued less intrusive means to ensure their and the public's safety before conducting the Terry frisk. Specifically, Officer Sentare instructed Baxter several times to take his hands out of his pockets prior to seizing him and before Officer Luketic initiated the pat-down search. See Roberts v. Commonwealth, 55 Va. App. 146, 154, 684 S.E.2d 824, 828 (2009) (finding that the officer did not pursue a less intrusive means of ensuring safety and thus unlawfully seized the defendant); see also Roulhac v. Commonwealth, 50 Va. App. 8, 19, 646 S.E.2d 4, 9 (2004) (noting that the officers' failure to ask the defendant to remove his hands from his pockets before conducting a Terry stop and frisk was a factor leading to suppression of the seized evidence); Mejia v. Commonwealth, 17 Va. App. 749, 755, 441 S.E.2d 41, 44 (1994) (finding that the officer unlawfully seized the defendant without first attempting a "less intrusive alternative of explaining why such less intrusive means were impractical"). It was only after Baxter refused to comply with Officer Sentare's demand that the seizure took place at all. In other words, the seizure was used as the last recourse to ensure both the officers' and the public's safety.
Given the circumstances, the officers had to make a split-second decision in order to ensure their safety and the safety of others. Although the officers could have inquired whether Baxter had a concealed weapon permit before seizing him, Baxter alternatively could have informed the officers of that fact, assuming that were the case. See Simmons v. Commonwealth 217 Va. 552, 556, 231 S.E.2d 218, 221 (1977) (disagreeing with the defendant's argument that "the frisk was unwarranted because [the officer] did not give defendant an opportunity to explain his conduct before the search," opining that "[a] police officer should not be required to ask of a person whom he reasonably suspects is engaging in criminal activity or is about to commit a serious crime, to explain his conduct and run the risk of receiving a bullet in answer to his questions" (citing Terry, 392 U.S. at 33 (Harlan, J., concurring))).
In light of the totality of the circumstances, the Court finds that the officers had a reasonable suspicion that Baxter was armed and dangerous, giving them the right to pat down Baxter in the interest of their and the public's safety.
Conclusion
Based on the totality of the circumstances, Officer Luketic and Officer Sentare had a reasonable, articulable suspicion that Baxter was illegally carrying a concealed weapon and posed a danger to them and the public. The initial voluntary encounter led to a constitutionally valid investigatory stop, which was based on reasonable suspicion that criminal activity was afoot The officer's reasonable belief that Baxter was armed and dangerous justified the subsequent Terry frisk, which revealed the concealed firearm. The search and seizure of Baxter and the seizure of the firearm therefore were lawful, and the Court DENIES Baxter's motion to suppress.
The Clerk's Office is directed to prepare an order consistent with this ruling and forward it to all counsel of record. Any objections shall be filed with the Court within fourteen days.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/msg