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Holmes v. Commonwealth1/30/2001
MEMORANDUM OPINION
JUDGE ROBERT P. FRANK
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge
Dereck Lamont Holmes (appellant) was convicted in a bench trial of two counts of felonious assault and battery of a police officer in violation of Code § 18.2-57(C), one count of impeding a police officer in violation of Code § 18.2-460(C) and one count of possession of cocaine in violation of Code § 18.2-250. On appeal, he contends the trial court erred in finding the evidence was sufficient to support his convictions and in denying his motion to suppress. Finding no error, we affirm the convictions.
I. BACKGROUND
On June 16, 1998, at 4:30 a.m., Danville Police Officer L.R. Kennedy was on patrol when he saw a 1988 two-door Pontiac with Virginia license plates driving backwards on Berryman Avenue onto East Stokes Street. Kennedy stopped the vehicle. While the officer performed field sobriety tests on the driver, appellant, who was a passenger, got out of the car and moved to the sidewalk. Officer Kennedy observed that appellant appeared to be intoxicated. Appellant was staggering and had a dazed look about his person and on his face.
Concerned for his safety while he dealt with the driver, Kennedy asked appellant to get back in the car. Appellant did not comply. Officer Kennedy repeated his request. He asked appellant to get into the car between six and eight times before appellant finally complied.
Officer Kennedy ultimately arrested the driver for driving under the influence . The driver asked that Officer Kennedy leave the vehicle on the side of the road. Officer Kennedy approached the passenger side of the car and told appellant to get out of the car so that he could perform an inventory search, which he was required to do by department policy. Officer Kennedy believed that appellant was intoxicated so he told appellant he was going to check his sobriety. After about ten to fifteen seconds, appellant got out of the vehicle and, when he did so, Kennedy saw a large bulge in his right front pocket. The large bulge was approximately the size of a baseball. The officer could not tell what was in appellant's pocket.
The bulge in appellant's pocket, as observed by Kennedy, was "a large indiscriminate bulge." He stated, "It didn't appear to have any corners or particular shape, but still it was enough of a bulge that would stand out to a noticeable degree that it would catch my attention." He said the bulge was thicker than it was long. He agreed that the bulge could have been the length and approximate thickness of a baseball, but said he had seen pistols smaller than a baseball. As to whether the object was flat or bulging out, Kennedy said the object was bulging, but he could not tell whether it was flat, square, or rectangular. Kennedy did not have an opportunity to search inside appellant's pocket.
As appellant left the vehicle, he was still staggering. Kennedy could smell alcohol "coming from his breath" and his eyes were bloodshot and glassy. Officer Kennedy told appellant to put his hands on top of the vehicle so he could perform a pat-down for weapons. Appellant told Kennedy, "No," and then put his right hand in his right front pocket, the same pocket containing the bulge. Appellant made no aggressive motion until Kennedy announced the pat-down. Officer Kennedy reached out to stop him because he believed appellant "may have had a pistol in his pocket." As Officer Kennedy reached out to grab appellant's hand, he made contact with appellant's pocket and felt a hard object, but could not identify the object.
Appellant then bent his knees, squatting slightly, and came u
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