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Search of defendant's pocket unlawful.

Byline: Virginia Lawyers Weekly

Although initial detention and frisk of defendant were reasonable, the police lacked probable cause to remove a glass tube from the defendant's pocket because it was not immediately apparent that the item was a weapon or contraband.

Background

At about 1:30 a.m. on Sept. 23, 2016, Officer Adam Komatz responded to a dispatch regarding a larceny at a Walmart store in Hampton. The security guard at the store told Komatz that the suspect was a white male with facial hair who ran from the store with a shopping bag towards an adjacent parking lot.

Within five to 10 minutes of speaking with the security guard, Komatz saw a white male wearing "a gray long-sleeved shirt and shorts," who was "crouched down" and "start[ing] to weave in and out of" the trucks. The man, later identified as appellant, left the area before the officer could speak with him. Komatz did not pursue appellant at that time.

At approximately 2:00 a.m., Komatz saw appellant "sprinting across the parking lot." Appellant was wearing the same clothes Komatz had seen earlier at the U-Haul lot. Komatz wanted "to make contact and stop [appellant] to figure out what's going on."

Komatz placed appellant in handcuffs and walked him to the police car. Komatz intended to hold appellant in the vehicle while other officers arranged a show-up identification with the Walmart security guard. Komatz conducted a pat-down search before placing appellant in the car "to make sure that there were no weapons on him." During the pat down, Komatz felt "a round cylindrical tube" in appellant's back pants pocket. The item was a smoking device that tested positive for cocaine.

Appellant moved to suppress the evidence, challenging his initial detention, the pat-down search, and the removal of the glass tube from his pocket. The prosecutor, however, believed that appellant's written motion had addressed only his detention and did not ask Officer Komatz at the suppression hearing about his basis for removing the tube. When appellant asked the trial court whether the denial of the suppression motion included a ruling on the "immediately apparent contraband issue," the prosecutor offered to recall Komatz to provide additional evidence. Without hearing further evidence or argument, the court stated that the pat down was justified and that the officer's testimony was sufficient to pursue a "fuller" search, which led to finding the contraband.

Analysis

The initial detention was constitutionally permissible because "'unprovoked flight upon noticing the police,' . . . 'is certainly suggestive' of wrongdoing and can be treated as 'suspicious behavior' that factors into the totality of the circumstances."

Next, a police officer may conduct a limited search of an individual who has been detained but not arrested to ensure that the officer is not subjected to danger. The purpose of the pat down was to ensure that appellant had no weapons before Komatz

placed him in his police car while arrangements were made with the Walmart security guard to do a show-up identification. We find that the frisk of appellant was reasonable.

Appellant also argues that Officer Komatz lacked probable cause to remove the glass tube from his pants pocket because it was not "immediately apparent" that the item was a weapon or contraband. We agree.

Komatz testified that he felt "a round cylindrical tube" in appellant's back right pocket while patting him down and "actually placed gloves on before pulling the item out." The commonwealth contends that the reasonable inference from the officer's donning of gloves was that he concluded that the cylindrical tube contained illegal drugs. However, Komatz did not say that he suspected that the tube could be drug paraphernalia. There was no evidence that appellant was a drug user or that the area in which he was detained was a known drug area. Komatz also did not say that he suspected the object he felt was a weapon, and there was no evidence that the Walmart thief had been armed.

Conviction reversed.

Weathersby v. Commonwealth, Record No. 1325-17-1, Oct. 9, 2018. CAV (Annunziata) from Hampton Cir. Ct. (Hutton). F. Daniel Mazzio III for Appellant; Donald E. Jeffrey III, for Appellee. VLW No. 018-7-251, 8 pp. Unpublished.

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Title Annotation:Weathersby v. Commonwealth, Virginia Court of Appeals
Publication:Virginia Lawyers Weekly
Date:Oct 28, 2018
Words:705
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