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Moore v. Commonwealth

Court of Appeals of Virginia

June 5, 2018

DWIGHT DELANO MOORE
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Randall D. Smith, Judge

          Rachel E. Wentworth, Assistant Public Defender, for appellant.

          Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Beales, Alston and Senior Judge Frank Argued at Norfolk, Virginia

          OPINION

          RANDOLPH A. BEALES JUDGE

         On October 7, 2016, Dwight Moore ("appellant") entered a conditional guilty plea under North Carolina v. Alford, 400 U.S. 25 (1970).[1] Appellant's plea agreement preserved his right to appeal the denial of his motion to suppress a firearm that police recovered following a traffic stop. The Circuit Court of the City of Chesapeake accepted appellant's plea and found him guilty of possession of a firearm by a convicted felon, and appellant then appealed the denial of his motion to suppress to this Court.

         I. Background

         During the hearing on appellant's motion to suppress, Officer Daniel Smith testified that he was on duty on November 2, 2014 at 9:51 p.m. At that date and time, Officer Smith and Officer Lyle were patrolling and observed a vehicle (later determined to be driven by appellant) with no lights illuminating its rear license plate. The officers initiated a traffic stop; however, the vehicle did not pull over. The vehicle continued down the road briefly before appellant jumped out of the vehicle while it was still in motion, causing it to crash into two parked cars.

         Officers Smith and Lyle pursued appellant on foot while commanding that he stop and that he was under arrest. Appellant ignored the officers' commands and continued to flee. Officer Smith testified that, during the pursuit, he requested assistance from nearby officers. Eventually, appellant "gave up and fell on the ground, " and was placed under arrest.

         Officer Groome testified that, meanwhile, he had gone to the crash site after receiving Officer Smith's call for assistance. Officer Groome also testified that he was the only police officer on the scene and that a crowd was forming near the crashed vehicle. Groome stated that there were no officers between the crowd and the crashed vehicle. Groome also stated that the crashed vehicle was in the middle of the road with its front door open on the driver's side. From his vantage point outside of the vehicle, Officer Groome saw an uncovered firearm in plain view near the gas pedal. He testified, "I noticed a firearm on the floorboard. I did secure the firearm and put it in the back of my police vehicle for safekeeping since the crowd was forming." Officer Groome testified that he did not enter the vehicle until he saw the firearm and that he unloaded the firearm before securing it. When asked on cross-examination if he received appellant's consent to enter the vehicle, Officer Groome answered, "No. I just saw the weapon and since a crowd was forming, I secured it for safekeeping because I wasn't sure if I needed to assist in helping catch Mr. Moore."

         Subsequently, a police unit with a drug-sniffing dog arrived at the scene. Following an "open-air sniff" of the vehicle's exterior, the police dog alerted on the vehicle, indicating the potential presence of narcotics. However, a search only uncovered "a small, very minute suspected marijuana roach for smoking marijuana . . . with burnt rolling papers" in the vehicle's ashtray.[2]

         In denying appellant's motion to suppress the firearm, the trial judge stated:

As far as the vehicle goes, I agree with the Commonwealth and probably most obviously exigent circumstances. When the officer could, in plain view, see the firearm, even though there was no evidence concerning whether it was stolen or it had been used in a crime, the mere fact that under all the circumstances of this case, that there was a firearm in a floorboard of a vehicle that had crashed into cars, the driver had fled, and that there was a crowd of people around, justified the officer taking possession of the firearm so that it wouldn't pose a danger to others, as well as the fact that it would still be in existence at the time that the circumstances were such that the police had gained control of the scene, and for those reasons will overrule the defense's motion to suppress the firearm.

(Emphasis added). Appellant's lone assignment of error states that "[t]he trial court erred in denying Moore's ...


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