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Bland v. Commonwealth

Court of Appeals of Virginia

June 7, 2016

WAYNE ANTONIO BLAND, JR.
v.
COMMONWEALTH OF VIRGINIA

         From the Circuit Court of the City of Richmond Gregory L. Rupe, Judge

          Dorian Dalton, Senior Assistant Public Defender, for appellant.

          Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Chafin and Senior Judge Clements Argued at Richmond, Virginia

          OPINION

          Teresa M. Chafin Judge

         Wayne Antonio Bland, Jr. ("appellant"), was indicted by a grand jury in the City of Richmond for the possession of a firearm after having been convicted of a felony pursuant to Code § 18.2-308.2. Prior to trial, appellant filed a motion to suppress the evidence obtained during his encounter with law enforcement. The trial court denied the motion. Following a bench trial, appellant was convicted and sentenced to five years of imprisonment. Appellant now appeals to this Court, contending that the trial court erred in denying his motion to suppress.

         Background

         On appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below, and "accord [it] the benefit of all inferences fairly deducible from the evidence." Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). On June 20, 2014, at 6:08 p.m., the Department of Emergency Communications ("DEC") of the Richmond Police Department received a report of a crime. The caller identified "an armed party near the intersection of Coalter and Redd Street" in Richmond. The caller provided a description of the individual as an African-American male "with a tan hat, orange and white striped shirt, and tan cargo shorts." The caller stated that the subject was brandishing a gun in that location. The DEC dispatcher relayed the location and description of the subject to Richmond police officers Stephen Butler and Ronald May, informing them that the subject had been seen waving a gun.

         Approximately two minutes later, the officers arrived at the location. While they did not see anyone at the intersection of Coalter and Redd Streets, they saw an individual who matched the description walking on the left-hand side of Redd Street, near its intersection with Coalter. This individual was subsequently identified as appellant. Appellant's appearance was consistent with the description the caller provided – an African-American male wearing tan cargo shorts, an orange and white striped shirt, and a tan hat.

         The officers stopped their car and walked approximately thirty feet to appellant's location. Appellant "looked in [their] direction" then "patted his front right pocket, his right rear pocket, and then pulled [his] shirt down . . . on [the right] side." Officer Butler understood this action as being consistent with the type of movements in which one conducting a "weapons check" would engage. Butler characterized a "weapons check" as the efforts of an armed person "to make sure [their weapon] is still there."

         As the officers approached appellant, Officer May informed him of the call that police had received and the fact that appellant matched the provided description. May expressed his intention to "pat down" appellant, and as he began to do so, appellant "knocked [his] hand away and told [the officer he] could not do that." As May sought to pat appellant down a second time, appellant fled. Appellant was apprehended after a short run of roughly twenty feet. After a brief struggle, during which appellant resisted being handcuffed, the police took him into custody. The police recovered a .40 caliber Smith and Wesson handgun during a subsequent search of the right back pocket of appellant's pants. At the suppression hearing, Butler confirmed this pocket was the same one he had witnessed appellant attempting to conceal with his shirt.

         The trial court admitted the recording of the informant's call to the DEC over appellant's objection at the suppression hearing. The caller related that she was calling from "the field at Coalter and Accommodation Streets" in the City of Richmond. The caller noted that she was watching an individual "walking on Redd Street in an orange and white striped shirt, with tan cargo shorts on." She explained that she had first provided the description and the individual's present location because "she did not want him to get out of her eyesight." The caller then related that she witnessed this person "brandish a gun in front of a female" near a "field full of children, " and then "enter into a house at 1947 Accommodation Street." She stated that the person was now on Redd Street, walking with the gun in his hand. She was then asked to give a description, which she once again provided – an African-American male, wearing an orange and white striped shirt, tan cargo shorts, and a tan hat. When asked if the gun was still in this individual's hand, the caller noted that the gun "was in his pocket, " stating that he had pulled the gun from his pocket when he brandished it in front of the woman and children.

         In support of his motion to suppress the firearm, appellant argued to the trial court that the tip provided to police was not sufficiently corroborated to render it reliable and capable of supporting the requisite reasonable suspicion to justify his seizure. In response, the Commonwealth, relying upon Navarette v. California, 134 S.Ct. 1683 (2014), stated that the caller's knowledge served to increase the tip's reliability. The Commonwealth argued that the caller's knowledge concerning appellant's possession of a firearm was corroborated by the activity witnessed by Officers Butler and May, wherein appellant patted his right front and rear pockets and pulled down the right side of his shirt as if to conceal his pockets. The Commonwealth indicated that appellant's actions in resisting both the pat down and handcuffing afforded sufficient probable cause to place appellant under arrest, independently authorizing a search of his person.

         In denying the suppression motion, the trial court made a factual finding, based upon having listened to the call, that the caller was an eyewitness to the events. The trial court cited both appellant's actions in patting his pockets as well as his resistance to the police as factors which, ...


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