Present: All the Justices
MICHAEL MAURICE WHITE
OPINION BY
v. Record No. 030476 JUSTICE LAWRENCE L. KOONTZ, JR.
January 16, 2004
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the evidence was
sufficient to support the defendant’s conviction under an
indictment charging him with felony escape in violation of Code
§ 18.2-479(B). The issue presented is whether the defendant was
in “custody” within the meaning of that statute prior to his
flight from a police officer.
BACKGROUND
“As required by established principles of appellate review,
we will recite the evidence presented at trial in the light most
favorable to the Commonwealth, the prevailing party in the
[trial] court, and we will accord the Commonwealth the benefit
of all inferences fairly deducible from that evidence.”
Stephens v. Commonwealth, 263 Va. 58, 59-60, 557 S.E.2d 227, 228
(2002).
On August 9, 2001, Michael A. Rushak, a motorcycle officer
with the City of Chesapeake Police Department, observed a
vehicle being operated without a front license plate. Rushak
requested a registration check of the vehicle and was advised
that the number on the rear license plate was registered to a
vehicle of a different make and model. Rushak stopped the
vehicle and asked the driver for his license and registration.
The driver, who identified himself as Michael Maurice White,
told Rushak that his driver’s license had been suspended and
that he had no other form of identification. White also told
Rushak that the vehicle belonged to White’s sister, and that he
was aware that the license plate “doesn’t belong on here.”
Rushak ordered White to step out of his vehicle, telling
him that it would be towed. As White stepped from the vehicle,
Rushak noticed that White’s “left hand was trembling and
wouldn’t stop.” Concerned that White was uncharacteristically
nervous for a person stopped for a routine traffic infraction,
Rushak called for assistance. Officer Meredith Bowen, who was
on patrol in a marked police car nearby, arrived at the scene.
Rushak directed White to place his hands on his vehicle and
proceeded with a protective pat-down search of White. When
Rushak placed his hand on White’s right front pants pocket,
White “tensed up” and said, “Don’t go in my pocket.” Rushak
felt what seemed to him to be “little rocks in a plastic bag”
inside the pocket and asked White if this was crack cocaine. At
that point, White “came off the car,” and a struggle ensued.
Using what Rushak described as “roundhouse punches” while
“swirling and turning,” White attempted to push away from
2
Rushak. Rushak took hold of White’s T-shirt, which ripped from
White’s body as he fled.
Rushak and Bowen pursued White. William Goodnoh, a city
employee working in a park near where White’s vehicle had been
stopped, saw White fleeing and observed him reach into his
pocket and then toss an object into some bushes. When other
officers arrived, Goodnoh directed one of them to the location
where White had tossed the object, and the officer recovered a
small bag containing crack cocaine from that area. White was
later found hiding in a backyard some distance away by one of
the officers who arrived to aid in the search.
On February 5, 2002, the grand jury returned an indictment
charging that White:
On or about the 9th day of August, 2001, after
lawfully having been confined in jail or after
lawfully having been in the custody of a court,
officer thereof, or a law enforcement officer on a
charge or conviction of a felony, escape[d] such
confinement or custody, in violation of § 18.2-479(B)
of the Code of Virginia, 1950, as amended.
In a bench trial held on April 25, 2002, the Circuit Court
of the City of Chesapeake (the trial court) heard evidence in
accord with the above-recited facts. 1 In addition, Bowen
1
In the same trial, White was tried and convicted on
indictments charging him with possession of cocaine with intent
to distribute, Code § 18.2-248, and assault and battery of a law
enforcement officer, Code § 18.2-57(C). This appeal, however,
is limited to White’s conviction for felony escape. Accordingly,
3
testified in response to a question from the trial court that
she did not “believe that [White] was under arrest” at the time
she arrived on the scene. She also testified that she did not
see White punch or kick Rushak, but that it appeared that he was
“doing a spin and trying to get away.”
Rushak testified that he conducted the pat-down search
because “the sooner I know I’m dealing with somebody that
appears not to have any weapons, the more comfortable I feel.”
He further testified that he intended to arrest White and that
when he reached for his handcuffs and they made a noise, White
made some comment to the effect that he was going to be
arrested. On cross-examination, conceding that White was not
under arrest at the time he conducted the pat-down search,
Rushak testified that White “was being detained.” Rushak
further testified that when he suspected White was in possession
of cocaine, he decided that White “was going into custody. We
were working our way there.”
At the conclusion of the Commonwealth’s case-in-chief,
White moved to strike the evidence of felony escape, asserting
that the evidence failed to establish that White was in custody
within the meaning of Code § 18.2-479(B) when he fled from
Rushak. The Commonwealth responded that White had been in
we need not recount the incidents of trial relevant to the other
4
custody because Rushak “was about to place him under arrest” and
he “was going to place him in custody for driving on a suspended
license.” The trial court described the evidence as to whether
White was in custody as being “a little close,” but ruled that
it was sufficient to sustain the Commonwealth’s burden “at this
stage.”
White testified on his own behalf. He recounted that he
thought he was “just going to get a summons” when he was
initially stopped by Rushak. White maintained that after the
pat-down search he did not “know whether [Rushak was] going to
lock me up or I’m going to get a summons . . . but I’m pretty
sure that it ain’t going to turn out for the good” and he “had a
feeling that I might get locked up.” White denied deliberately
striking Rushak.
White further testified that although he purposely fled
from Rushak, he knew the police would ultimately find him
because he had given Rushak his correct name and other
identifying information. White claimed that he intended to turn
himself in after getting his paycheck later that week.
After concluding his testimony, White rested his case and
argued against a conviction on the felony escape charge. He
contended that “the elements of escape are simply not met”
offenses.
5
because under the facts of the case he was not told that he was
under arrest and he “wasn’t in custody.” The trial court noted
that White testified that “he knew he was going to be arrested
because he wanted to come down Friday and give himself up.”
White conceded that this was his subjective understanding, but
asserted that the “case falls short” because the evidence showed
that he was not under arrest and the officer was merely
conducting a pat-down search when he ran away from the officer.
The trial court convicted White of felony escape, with
White noting his objection. Following consideration of a
presentence report, the trial court sentenced White to three
years in prison for felony escape and suspended the entire
sentence.
White filed a petition for appeal in the Court of Appeals
of Virginia. Relevant to the issue raised here, the Court of
Appeals denied White’s petition, finding that “[t]he
Commonwealth’s evidence was competent, was not inherently
incredible, and was sufficient to prove beyond a reasonable
doubt” that White “was in Rushak’s custody when he escaped.” We
awarded White an appeal limited to the question whether the
evidence was sufficient to establish that White was “in police
custody at the time of his flight.”
6
DISCUSSION
Before addressing the merits of the issue presented in this
appeal, we first consider the procedural default asserted by the
Commonwealth to limit the scope of White’s assignment of error.
As relevant to the facts of this case, Code § 18.2-479(B)
defines as a class 6 felony the escape of “any person . . .
lawfully in the custody of . . . any law-enforcement officer on
a charge or conviction of a felony.” 2 In his petition for appeal
in this Court, White limited his assignment of error to the
question whether the evidence was sufficient to prove that he
was “in police custody at the time of his flight.” In briefing
that assignment of error in the petition, White similarly
limited his argument to contesting whether he was in custody,
and did not address the further provision of the statute that
requires the custody to be “on a charge or conviction of a
felony.” Our order awarding an appeal to White, as noted above,
limited the appeal to the issue argued in his petition, quoting
verbatim the language of the assignment of error as White had
framed it.
In his opening brief, however, White modified his
assignment of error to include language asserting that his
conviction was barred because he was not in “custody on a charge
7
or conviction of a felony.” (Emphasis added). The
Commonwealth, while not expressly objecting to the modification
of the assignment of error, contends that White did not raise
the issue of this requirement of the custody contemplated by
Code § 18.2-479(B) in the trial court. Accordingly, the
Commonwealth further contends that White’s appeal, or at least
so much of it as is directed to the question whether he was in
custody “on a charge or conviction of a felony,” is barred by
Rule 5:25.
Although we agree with the Commonwealth that White did not
expressly make the same argument and objection to his conviction
in the trial court which he now asserts, we need not consider
whether the argument and objections that were made below are
sufficient under Rule 5:25 to preserve the issue for appeal as
now asserted by White. The order awarding White this appeal set
forth the assignment of error as it was worded in his petition.
It is impermissible for an appellant to change the wording of an
assignment of error, “especially when the assignment is set
forth in the order of this Court awarding the appeal.” Hamilton
Development Co. v. Broad Rock Club, Inc., 248 Va. 40, 43-44, 445
S.E.2d 140, 142-43 (1994); see also Santen v. Tuthill, 265 Va.
492, 497 n.4, 578 S.E.2d 788, 791 n.4 (2003).
2
Code § 18.2-479(A) defines as a class 1 misdemeanor escape
8
The improper modification of an assignment of error,
however, will not prevent the appellant from arguing and having
his appeal considered on the issue actually asserted in the
trial court and for which an appeal was granted, provided that
he has adequately briefed that issue. See Hudson v. Pillow, 261
Va. 296, 301-02 and n.8, 541 S.E.2d 556, 559-60 and n.8 (2001).
White has presented argument in his brief relevant to the issue
whether he was in police custody at the time of his flight.
Consequently, we will limit our consideration in this appeal to
the narrow issue raised in White’s initial assignment of error,
disregarding any argument on and expressing no opinion with
respect to the additional issue interjected by the improper
modification of that assignment of error in the opening brief.
We turn now to consider the merits of the issue presented
in this appeal. Initially, we note that the term “custody” is
not defined by Code § 18.2-479, and heretofore we have not
addressed the meaning of that term in the context of that
statute. 3
while “on a charge or conviction of a misdemeanor.”
3
The Court of Appeals in Cavell v. Commonwealth, 28 Va.
App. 484, 506 S.E.2d 552 (1998) (en banc), concluded that the
defendant was not in custody within the meaning of that term
under Code § 18.2-479 where the police officer did not touch the
defendant and the defendant did not submit to the officer’s show
of authority. The Court held that the defendant “was not under
arrest and, thus, was not in custody when he fled.” Id. At 487,
506 S.E.2d at 553. We agree with the Commonwealth that to the
9
In determining the intent of the General Assembly from the
language used in this statute, we may presume that the term
“custody” was carefully chosen. Undoubtedly, the General
Assembly was well aware that, depending on the circumstances,
the face-to-face interaction of an individual with a law
enforcement officer generally may be classified as a consensual
encounter, a temporary investigative detention, or an arrest.
These classifications, when properly determined upon the
particular facts involved, have well-established legal
significance insofar as the rights and obligations of the
individual and those of the police are concerned.
In the context of our present considerations, a consensual
encounter does not require any justification and may be
terminated at will by the individual. Investigative detentions,
so called “Terry stops,” require a justification of reasonable
suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1,
30 (1968). During a Terry stop, the individual is not free to
leave, but he is not under arrest. See United States v.
Swanson, 341 F.3d 524, 529 (6th Cir. 2003). To be lawful, an
arrest (without a warrant) requires a demonstration of probable
cause regarding criminal conduct and occurs when the officer
extent that Cavell stands for the proposition that a formal
arrest is necessary to establish custody as contemplated by Code
§ 18.2-479, it was erroneously decided.
10
actually restrains the individual or the individual submits to
the authority of the officer. See Howard v. Commonwealth, 210
Va. 674, 677, 173 S.E.2d 829, 832 (1970).
Although custody is not defined by Code § 18.2-479, the
term connotes a deprivation of liberty, a condition beyond a
temporary investigative detention, but involving less
deprivation of liberty than absolute confinement. Moreover, in
a related context, the General Assembly has provided by statute
that an individual can be in “custody” even when a formal arrest
will not follow. See Code § 19.2-74 (authorizing release of a
person “in the custody of an arresting officer” upon issuing a
summons for most misdemeanors); Code § 46.2-936 (same for most
traffic offenses). But see Lovelace v. Commonwealth, 258 Va.
588, 596, 522 S.E.2d 856, 860 (1999) (holding that such custody
is not “equivalent to an actual custodial arrest”). Viewed in
this context, it is clear that for purposes of prohibiting an
escape under Code § 18.2-479, the General Assembly must have
intended that the term “custody” would include a degree of
physical control or restraint under circumstances other than
those also necessary to constitute an actual custodial arrest.
Stated differently, while an individual under arrest is always
in custody for purposes of applying Code § 18.2-479, the
individual need not be under formal arrest in order for the
Commonwealth to prove that the individual was in custody.
11
Accordingly, we are of opinion that an individual is in
“custody,” as contemplated by Code § 18.2-479, when a law
enforcement officer has lawfully curtailed the individual’s
freedom of movement to a “degree associated with a formal
arrest,” even when a formal custodial arrest has not been
effected. See California v. Beheler, 463 U.S. 1121, 1125 (1983)
(per curiam) (addressing the meaning of “in custody” for
purposes of requiring Miranda warnings). Applying an objective
standard, the inquiry is whether the officer, with proper
authority to do so, had by his words or use of physical force,
curtailed the individual’s freedom of movement beyond that
required for a temporary investigative detention.
The record evidence in this case demonstrates that
initially Rushak lawfully detained White because the vehicle
White was driving was not properly tagged. Once Rushak
determined that White did not have a valid driver’s license, the
propriety of continuing the detention beyond the time necessary
to write a summons for the offense that occasioned the stop was
established. Although Rushak could have taken White into
custody in order to bring him before a magistrate under these
circumstances, see Code §§ 46.2-936 and 46.2-940, it is clear
that Rushak was still considering what action to take at that
time. Thus, White was not yet in custody, but was only being
detained.
12
Similarly, when Rushak directed White to exit his vehicle
and determined, based upon his observations, that a protective
pat-down was appropriate, the encounter was still clearly an
investigative detention. Accordingly, we cannot say that
White’s permitting the pat-down amounted to a curtailing of his
freedom of movement to a degree associated with a formal arrest.
Otherwise, we would be forced to conclude that every
investigative detention would transform into custody of the
individual as soon as the individual acquiesced in the officer’s
request to permit such a search.
Nor can we say, as the Commonwealth would assert, that
Rushak’s belief that White was in possession of crack cocaine,
while arguably sufficient to permit him to question White
further, converted the temporary detention into a custody
pending an arrest on that charge. Rushak’s suspicion that White
was in possession of illegal drugs, while reasonable, did not
yet rise to the level of probable cause. See Murphy v.
Commonwealth, 264 Va. 568, 574-75, 570 S.E.2d 836, 839 (2002).
Undoubtedly, Rushak’s action in reaching for his handcuffs,
White’s reaction to their telltale clink, and Rushak’s stated
intention that White “was going into custody,” are all
indicative that Rushak intended to take White into custody for
the purpose of placing him under arrest. It is undisputed,
however, that Rushak had not yet restrained White for that
13
purpose, and it was at that propitious moment that White chose
to flee rather than submit to Rushak’s authority.
In sum, we hold that under Code § 18.2-479, an individual
is in the custody of a law enforcement officer only where there
has been a clear and effective restraint of the individual by
the officer, either by having the individual in his physical
control or by the individual’s voluntary submission to the
officer’s authority, such that the individual’s freedom of
movement is curtailed to a degree associated with a formal
arrest. 4 The record in this case establishes that at the point
Rushak determined to place White in custody, he did not have
White under sufficient restraint to have physical control over
him, and White fled before Rushak could obtain that degree of
4
Although we have found no case precisely on point with the
facts here, our decision is in general accord with decisions of
other jurisdictions. See, e.g., Ex parte McReynolds, 662 So. 2d
886, 888 (Ala. 1994) (“One cannot escape from custody until one
is in custody . . . [which] is defined as a restraint or
detention ‘pursuant to a lawful arrest’ ”); Hubbard v. State,
800 P.2d 952, 954 (Alaska 1990) (“if an officer approaches an
offender for the purpose of making an arrest, which he is unable
to do because the other eludes him by running away, there has
been no ‘escape’ ”); People v. Thornton, 929 P.2d 729, 734
(Colo. 1996) (“for a suspect to be ‘in custody’ . . . an officer
must have effected the suspect’s arrest by establishing physical
control of the suspect sufficient to provide reasonable
assurance that the suspect will not leave”); State v. Ryan, 612
P.2d 102, 103 (Haw. 1980) (“once the defendant has submitted to
the control of the officer and the process of taking him to the
police station or to a judge has commenced, his arrest is
complete, and he is in ‘custody,’ for the purposes of the escape
statute”).
14
control. Under these circumstances, White was not in custody
and his flight was not an escape as contemplated by Code § 18.2-
479(B). Accordingly, we further hold that the trial court erred
in finding the evidence sufficient to convict White of felony
escape under Code § 18.2-479(B).
CONCLUSION
For these reasons, we will reverse the order entered by the
Court of Appeals and dismiss the underlying indictment.
Reversed and final judgment.
15