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Jackson v. Commonwealth7/29/2003
Argued at Richmond, Virginia
Upon Rehearing En Banc
The trial court found the appellant, Jerald Lorenzo Jackson, guilty of possession of cocaine (Code § 18.2-250), possession of a concealed weapon (Code § 18.2-308), and possession of a firearm while simultaneously possessing illegal drugs (Code § 18.2-308.4(A)). On appeal, Jackson challenges only the trial court's denial of his pretrial suppression motion. A divided panel of the Court affirmed the conviction. Jackson v. Commonwealth, 39 Va. App. 624, 576 S.E.2d 206 (2003). Upon rehearing the matter en banc, we likewise affirm the trial court, finding no error in either its analysis or conclusion.
I.
On appeal from a denial of a suppression motion, we must review the evidence in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences. Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000); Sabo v. Commonwealth, 38 Va. App. 63, 69, 561 S.E.2d 761, 764 (2002).
At 2:10 a.m. on June 17, 2001, the Newport News Police Department dispatched Officer M.A. Cook to a street corner next to a "small bar" to investigate an anonymous complaint. The caller reported (and the dispatcher advised the responding officers) that "three black males" were acting disorderly and "at least one of them had a firearm and was brandishing it." The caller also stated that the three "were getting into a car and leaving." The caller described the vehicle as a "white Honda." Sending backup, the police interpreted the report as "a high risk situation with a gun possibly involved."
Three to five minutes later, Cook and other officers arrived at the scene and observed a white Honda leaving the area. They saw no other white vehicles of any type. The white Honda "pulled out right in front" of Cook, permitting the headlights of his police cruiser to shine directly into the vehicle. Cook clearly saw three black males in the white Honda. On the basis of the brandishing tip, the officers followed the vehicle and stopped it several blocks away.
Cook approached the car and explained the reason for the stop. Sergeant James Hogan went to the passenger side of the vehicle and shined a light into the car. Jackson sat in the front passenger seat with his arms folded across his stomach. Hogan noted an unusual bulge underneath Jackson's shirt, which the officer suspected to be a firearm. The bulge, Hogan concluded, "obviously was not part of his body" and was "too big" to be anything other than a handgun.
Hogan asked Jackson if he had a gun on him. Jackson said no. Hogan then said, "Could you pull your shirt up so that I can be comfortable with us talking, because I believe you have a firearm?" In response, Jackson pulled his shirt "a couple inches and put it back" and then "crossed his arms back across his stomach."
Fearing for his safety, Hogan unholstered his sidearm and ordered Jackson out of the car. After Jackson got out of the vehicle, Officer B.D. Bartley immediately conducted a weapons search and removed a Glock, .40 caliber, semiautomatic handgun from Jackson in the exact area of the previously noticed bulge. The officers then handcuffed Jackson and placed him under arrest. In a search incident to his arrest, the officers also found crack cocaine in Jackson's pants pocket.
II.
At trial, Jackson moved to suppress the evidence, claiming that the police officers (i) lacked a sufficient basis to stop the white Honda and to question its occupants, and (ii) had equally insubstantial grounds for searching him for weapons or drugs. Both events, Jackson contended, violated search and seizure principles protected by
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