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Hill v. Commonwealth

Supreme Court of Virginia

August 30, 2019



          PRESENT: Goodwyn, Mims, McClanahan, Powell, Kelsey, and McCullough, JJ., and Millette, S.J.



         The trial court convicted Patrick Darnell Hill of possession of cocaine with intent to distribute, second offense, upon his conditional guilty plea under Code § 19.2-254. He appealed to the Court of Appeals, claiming that the trial court erroneously denied his pretrial motion to suppress. The Court of Appeals disagreed and affirmed, see Hill v. Commonwealth, 68 Va.App. 610, 621, 625 (2018), as do we.



         "On appeal, we state the facts 'in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.'" Commonwealth v. White, 293 Va. 411, 413-14 (2017) (citation omitted). "This standard requires us 'to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'" Id. at 414. We also presume - even in the absence of specific factual findings - that the trial court resolved all factual ambiguities or inconsistencies in the evidence in favor of the prevailing party and gave that party the benefit of all reasonably debatable inferences from the evidence. See Fitzgerald v. Commonwealth, 223 Va. 615, 627-28 (1982) (noting that "[a]bsent a statutory mandate, . . . a trial court is not required to give findings of fact and conclusions of law" in support of a denial of a motion to suppress); cf. Bowman v. Commonwealth, 290 Va. 492, 500 & n.8 (2015) (explaining that when an appellate court is "faced with a record of historical facts that supports conflicting inferences," the court "must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of that prosecution, and must defer to that resolution" (quoting Jackson v. Virginia, 443 U.S. 307, 326 (1979)) (citing Wright v. West, 505 U.S. 277, 296-97 (1992) (plurality opinion))).

         "When considering whether to affirm the denial of a pretrial suppression motion, an appellate court reviews not only the evidence presented at the pretrial hearing but also the evidence later presented at trial." White, 293 Va. at 414 (collecting cases). But when an appellate court considers whether to "revers[e] a criminal conviction based on an erroneous pretrial ruling," evidence or proffers at trial are "relevant only if the defendant renews his pretrial motion at trial." Id. at n.2. A renewal of the motion is required to "satisfy Rule 5:25 by inviting the trial court to reconsider its pretrial ruling in light of the actual evidence presented - rather than merely relying solely upon the charging documents, pretrial proffers of the parties, or cursory evidentiary presentations as the trial court sometimes must do when deciding the issue prior to trial." Id.[1]


         On April 5, 2016, two detectives were patrolling the "600 block of Newport Avenue in the City of Portsmouth, which is a high crime, drug area," J.A. at 6; see id. at 12, 16, 22, while "investigating some narcotics complaints," id. at 21. Both detectives worked in the Special Investigations Unit specializing in narcotics transactions. See id. at 12, 22. The two detectives had a combined experience of over 28 years, nearly 7 of which they had spent investigating narcotics transactions. See id. In that same "high drug, high crime area," one of the detectives had "made several [arrests] . . ., mostly right behind that area." Id. at 22.

         In this "secluded" high-crime, high-drug area, id. at 16, the detectives saw Hill sitting alone in the driver's seat of a parked car. He was "leaning back in the seat watching" and not "moving around." Id. at 20. The detectives made a U-turn and observed Hill for approximately "a minute or so." Id. at 22. As the detectives pulled up near Hill's vehicle, Hill began "looking up and down, up and down, and he was constantly doing a bunch of movement inside of the vehicle." Id. at 7. The detectives pulled up "right beside [Hill's] vehicle" and parked approximately 25 feet away without using any lights or sirens. Id. at 9-10. Wearing their "police vest[s]" and "badge[s] of authority," id. at 5, 10, 21; see id. at 23, the detectives walked up to Hill "on the driver's side of the vehicle, at which time when [they] approached [Hill], he put his left hand on the steering wheel and then . . . . he turned his back and head away from [them]" and "began digging with his right hand between . . . . the driver's seat," id. at 7 (emphasis added); see id. at 11, 19.

         When the detectives "walked up" to Hill, he "looked up towards" the detectives and "immediately went towards the back of the car." Id. at 24. "[H]e hunched over behind the driver's seat and [went] into the back seat area with his right hand." Id. Fearing that Hill might be reaching for a weapon, the detectives shouted: "Show us your hands, show us your hands," id. at 7; see id. at 11, 18, 24-25, and "[l]et's see your hands, let's see your hands," while identifying themselves as police officers, id. at 24. The detectives recalled shouting this command approximately 7 to 10 times. See id. at 11, 25. They were both "concerned for [their] safety." Id. at 26; see id. at 18.

         While a detective was telling Hill, "Show me your hands, show me your hands," Hill "kept digging around inside the vehicle." Id. at 11 (emphasis added). He turned his back to the detective and put "his head down in the vehicle as he was digging down, reaching." Id. (emphasis added); see id. at 8. As Hill was "digging down," id., one of the detectives opened the driver's door and "grabbed [him] by his left forearm" as Hill "continued to pull away and dig down between the seats." Id. at 7-8 (emphasis added); see id. at 11. The seizing detective "thought [Hill] had a firearm" given "the way he was acting and the way he was pulling away, reaching." Id. at 11. Immediately after the seizure, the detective "informed" Hill that he "thought [Hill] may have been reaching for a firearm." Id. at 18 (emphasis added). While the detective did not see a firearm, he understood that "if there was a firearm in that vehicle that it would have been concealed." Id. at 19.

         One of the detectives immediately checked "under the driver's seat in the same area the subject was reaching" and discovered "a clear plastic baggie containing cocaine." Id. at 8. Hill was subsequently arrested and indicted for possession of cocaine with intent to distribute. Hill moved to suppress the cocaine, but the trial court denied the motion. The trial court held that Hill "did certain actions within the car that [the detectives testified] made them feel like they were in danger based on his actions" and that "[t]he officers acted properly and in a constitutional manner and had reasonable suspicion for what they did." Id. at 55. The Court of Appeals affirmed this decision, and Hill now continues his challenge to the trial court's denial of his motion to suppress on appeal to this Court.[2]


         Hill argues on appeal that the detectives seized him in violation of the reasonable-suspicion standard adopted in Terry v. Ohio, 392 U.S. 1 (1968). His assignment of error asserts that the detectives "lacked a reasonable, articulable suspicion that [he] was engaged in criminal activity when he was found in a high crime area and did not respond to the officers' commands to show his hands." Appellant's Br. at 1. This argument rests on two assumptions: First, that the seizure in this case occurred when Hill refused to "show his hands, "[3] and second, that a Terry seizure can take place only when the suspect is "engaged in criminal activity," id. We disagree with both assumptions.


         A Fourth Amendment seizure of a person occurs either by physical force or submission of the person to the assertion of law enforcement authority. California v. Hodari D., 499 U.S. 621, 626 (1991); see also Hall v. Commonwealth, 280 Va. 566, 570-71 (2010); Bristol v. Commonwealth, 272 Va. 568, 573 (2006); McCain v. Commonwealth, 261 Va. 483, 491 (2001). The detectives' commands for Hill to show his hands did not, by themselves, result in a seizure because Hill never submitted to this assertion of authority. Well-established caselaw supports this conclusion. See, e.g., United States v. Waterman, 569 F.3d 144, 146 (3d Cir. 2009) (holding that no seizure occurred when police drew their guns and ordered the defendant to raise his hands but he refused to do so and subsequently entered a house); United States v. Valentine, 232 F.3d 350, 353, 359 (3d Cir. 2000) (holding that no seizure occurred even when the defendant "momentarily 'complied'" with an officer's order to "come over and place his hands on the car" by stopping and saying "Who, me?"); United States v. Johnson, 212 F.3d 1313, 1316-17 (D.C. Cir. 2000) (holding that no seizure occurred "after [the defendant]'s first 'shoving down' motion, when [the officer] drew his gun and ordered [the defendant] to raise his hands" because the defendant did not submit to the officer and "continued to make 'shoving down' motions, gestures that were the very opposite of complying with [the officer]'s order").[4] Contrary to Hill's first assumption, therefore, the detectives did not seize Hill until the moment they physically placed their hands on him and pulled him from the vehicle.


         This inquiry into the timing of the seizure highlights Hill's second mistaken assumption - that an officer must be investigating a crime already in progress.[5] As we recently pointed out, "[i]n the seminal case Terry v. Ohio, an investigative stop was held objectively reasonable where the officer observed no elements of any crime whatever, but only an entirely lawful course of conduct which gave rise to a reasonable suspicion that the defendant was preparing to commit a crime." Mason v. Commonwealth, 291 Va. 362, 369 (2016) (emphasis added). We also noted that "[t]he Supreme Court reached the same result in United States v. Sokolow, where the defendant also engaged in a lawful course of conduct that nevertheless led an officer reasonably to conclude that a crime was intended." Id. (emphasis added) (citing United States v. Sokolow, 490 U.S. 1, 5, 8-11 (1989)). Succinctly put, Terry authorizes a seizure of a suspect who "is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417 (1981) (emphasis added); see also Navarette v. California, 572 U.S. 393, 401 (2014). Thus, "the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts." Sokolow, 490 U.S. at 10 (citation omitted).

         The issue in this case is not, as Hill assumes, whether the officers (both experienced detectives) had reasonable suspicion to believe that Hill was a drug dealer and thus had the authority to seize him to find out whether that suspicion was correct before performing a protective search for weapons. Hill was a drug dealer (he pleaded guilty to possessing cocaine, second offense, with intent to distribute), but we will assume arguendo that at the time of the seizure the detectives had only a hunch, albeit a good one, that Hill was one. The proper focus, however, is "the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." Terry, 392 U.S. at 23.

         Terry established a degree-of-certitude standard - reasonable suspicion - to govern an officer's protected interest in assuring his own safety. Terry set this standard with a simple fact pattern. At 2:30 p.m., a police officer observed Terry and his companions repeatedly walking back and forth, looking into a store window, and conferring with one another. See id. at 6. The officer "was unable to say precisely what first drew his eye to them." Id. at 5. But the officer had "been assigned to patrol this vicinity" for 30 years looking for "shoplifters and pickpockets." Id. The curious back-and-forth movements by the men on a public walkway while peering into a store window made the officer suspect that they were "casing a job, a stick-up," and "he feared 'they may have a gun.'" Id. at 6. After Terry and his companions "had departed the original scene," id. at 28, the officer walked up to the men, identified himself as a police officer, asked for their names, and when they "mumbled something," immediately patted them down and found two handguns, id. at 6-7.

         The Supreme Court in Terry upheld the officer's actions based upon his underlying duty of "effective crime prevention and detection." Id. at 22. It did not matter that each act within "the series of acts" by Terry and his companions was "perhaps innocent in itself" because "taken together" the acts "warranted further investigation." Id.; see also United States v. Arvizu, 534 U.S. 266, 274 (2002). "Even though the suspicious individuals walking up and down the sidewalk 'could simply have been innocuous, albeit overly energetic, window shoppers,' that hypothesis of innocence 'did not invalidate the Terry stop.'" Shifflett, 58 Va.App. 732, 737 (2011) (citation omitted). Nor did it matter that the officer had suspected that Terry and his companions may be armed and dangerous when he approached because the officer was discharging a "legitimate investigative function . . . when he decided to approach [Terry] and his companions." Terry, 392 U.S at 22.

         Despite these seemingly innocuous circumstances, the Supreme Court in Terry concluded that the police officer "had observed enough to make it quite reasonable to fear that [Terry and his companions] were armed; and nothing in their response to his hailing them, identifying himself as a police officer, and asking their names served to dispel that reasonable belief." Id. at 28. The seizure was not "the product of a volatile or inventive imagination," nor was it "undertaken simply as an act of harassment." Id. Rather, the seizure was "the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so." Id.


         Properly framed, the ultimate issue in this case is whether, at the time of the seizure, the detectives had reasonable suspicion to believe that they were about to be assaulted with a weapon. Brandishing a weapon is a crime, see Code § 18.2-282, as are attempted unlawful or malicious wounding, see Code §§ 18.2-26, -51, and attempted murder, see Code §§ 18.2-26, -32. The answer to this question turns on whether the detectives could have reasonably suspected that that Hill may have been reaching for a weapon. ...

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