THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Randall D. Smith,
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
RANDOLPH A. BEALES JUDGE
October 7, 2016, Dwight Moore ("appellant") entered
a conditional guilty plea under North Carolina v.
Alford, 400 U.S. 25 (1970). 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
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.
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
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."
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.
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