COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Beales and Senior Judge Bumgardner
Argued at Chesapeake, Virginia
CARLOS DEON FITCHETT
OPINION BY
v. Record No. 1744-09-1 JUDGE RANDOLPH A. BEALES
AUGUST 17, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Randall D. Smith, Judge
Hugh E. Black, III, for appellant.
John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli,
II, Attorney General, on brief), for appellee.
While fleeing from a police officer, Carlos Deon Fitchett (appellant), a convicted felon,
accidentally dropped a handgun that had been concealed underneath the waistband of his pants.
The police officer recovered the handgun, and appellant was charged with possession of a
firearm by a convicted felon, in violation of Code § 18.2-308.2(A). Appellant filed a pretrial
motion to suppress the handgun, which the trial court denied, and appellant then entered a
conditional guilty plea preserving his right to appeal the denial of his suppression motion. On
appeal, appellant argues that the handgun was illegally seized and should have been suppressed.
Finding that suppression of the handgun is not required under the exclusionary rule, we affirm
the trial court’s ruling for the following reasons.
I. BACKGROUND
Officer Anthony Blount was dispatched to investigate a complaint of loud music near the
intersection of Schooner Trail and Cutter Court in the City of Chesapeake during the early
morning hours of February 24, 2008. While still sitting in his police car, he observed two men
standing beside each other in the roadway of Cutter Court. One of the two men, appellant, held a
cup in his hand. When the men saw the police car, they turned their backs and stood shoulder to
shoulder for approximately ten seconds. When they turned back around to face the police car
again, appellant did not have the cup in his hand.
Suspecting that appellant had been holding an open container of alcohol, Officer Blount
exited his police car to approach on foot, and the men began to walk away. The officer told them
to stop and asked them if they were hiding anything. Walking back toward the officer, appellant
replied that he was not hiding anything.
At this point, Officer Blount decided to conduct a pat-down search of appellant for
weapons. He directed appellant to turn around and put his hands on top of his head. Appellant
turned around and put his hands up in the air, but he did not lock his fingers together. Appellant
repeatedly looked over his shoulder to see where the officer was.
Officer Blount touched appellant’s hands as a prelude to beginning the pat-down search,
and appellant then reacted by running away from the officer. The officer pursued appellant on
foot. Before the officer could catch up to him, however, appellant tripped while running up a
driveway. As appellant began to stumble, Officer Blount observed a handgun fall from
underneath appellant’s waistband to the ground. Appellant fell to the ground a few feet from
where the handgun had landed.
Officer Blount placed appellant in custody and advised him of his rights under Miranda
v. Arizona, 384 U.S. 436 (1966). Appellant then admitted that he was a convicted felon and that
the handgun was his.
In its letter opinion addressing appellant’s motion to suppress, the trial court found that
appellant was seized within the meaning of the Fourth Amendment when the officer ordered him
to stop and raise his hands and that a “further seizure” occurred when the officer actually touched
-2-
appellant’s hand. The trial court found that reasonable, articulable suspicion existed for Officer
Blount to stop appellant, but that the officer’s attempt to frisk him for weapons was not justified
under the totality of the circumstances. However, the trial court found that appellant did not
submit to the frisk, but instead fled, and that the handgun fell from appellant’s waistband while
he was fleeing from Officer Blount. Finding that the disclosure of appellant’s handgun did not
actually occur during a seizure, the trial court denied appellant’s motion to suppress.
II. ANALYSIS
On appeal, we review questions involving Fourth Amendment issues as mixed questions
of fact and law. McCain v. Commonwealth, 275 Va. 546, 551, 659 S.E.2d 512, 515 (2008). In
such cases,
we give deference to the factual findings of the circuit court, but
we independently determine whether the manner in which the
evidence was obtained meets the requirements of the Fourth
Amendment. The defendant has the burden to show that,
considering the evidence in the light most favorable to the
Commonwealth, the trial court’s denial of his suppression motion
was reversible error.
Id. at 552, 659 S.E.2d at 515 (citations omitted).
Appellant asserts that he was seized within the meaning of the Fourth Amendment
when, at Officer Blount’s direction, he stopped walking away from the officer, walked back
toward the officer, and placed his hands above his head in preparation for the pat-down search –
thereby establishing appellant’s submission to an officer’s assertion of authority. Appellant
contends that this seizure violated the Fourth Amendment because, he claims, Officer Blount
lacked “reasonable, articulable suspicion that criminal activity [wa]s afoot.” 1 Jones v.
1
For the purpose of our analysis, we will assume without deciding that appellant was
seized in violation of the Fourth Amendment.
-3-
Commonwealth, 279 Va. 665, 673, 691 S.E.2d 801, 805 (2010) (citing Terry v. Ohio, 392 U.S. 1,
21, 27, 30 (1968)).
Moreover, appellant asserts that his handgun was recovered as a result of this seizure, and
therefore, appellant argues that the trial court committed reversible error when it did not suppress
the handgun under the “fruit of the poisonous tree” doctrine. See Warlick v. Commonwealth,
215 Va. 263, 265, 208 S.E.2d 746, 747-48 (1974) (explaining that the “fruit of the poisonous
tree” doctrine “is a facet of the federal exclusionary rule,” which serves to exclude from criminal
trials “evidence seized and information acquired during an unlawful search or seizure” as well as
“derivative evidence discovered because of the unlawful act”). We disagree.
As the United States Supreme Court stated in Hudson v. Michigan, 547 U.S. 586 (2006),
a defendant seeking application of the exclusionary rule faces “‘a high obstacle’” in
demonstrating that exclusion is appropriate. Id. at 591 (quoting Pennsylvania Bd. of Probation
and Parole v. Scott, 524 U.S. 357, 364-65 (1998)). Moreover, as the Supreme Court recently
noted in Herring v. United States, 129 S. Ct. 695 (2009), the fact that a Fourth Amendment
violation occurred “does not necessarily mean that the exclusionary rule applies.” Id. at 700
(citing Illinois v. Gates, 462 U.S. 213, 223 (1983)). Indeed, the Supreme Court has emphasized
that exclusion of evidence “has always been our last resort, not our first impulse,” Hudson, 547
U.S. at 591, and that the Court’s “precedents establish important principles that constrain
application of the exclusionary rule.” Herring, 129 S. Ct. at 700.
In Wong Sun v. United States, 371 U.S. 471 (1963), the Supreme Court stated:
We need not hold that all evidence is “fruit of the poisonous tree”
simply because it would not have come to light but for the illegal
actions of the police. Rather, the more apt question in such a case
is “whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.”
-4-
Id. at 487-88 (quoting John M. Maguire, Evidence of Guilt 221 (1959)). Evidence is obtained by
means “sufficiently distinguishable” to be admissible despite an illegality by the authorities if it
is “evidence attributed to an independent source” or “evidence where the connection has become
so attenuated as to dissipate the taint.” Warlick, 215 Va. at 266, 208 S.E.2d at 748.
Appellant’s counsel contended during oral argument before this Court that suppression of
the handgun was required because Officer Blount never would have observed and recovered the
handgun but for the officer’s seizure of appellant and the officer’s brief attempt at a pat-down
search, from which appellant fled. However, “evidence is not ‘fruit of the poisonous tree’ simply
because ‘but for’ an unlawful search [or seizure] it would not have come to light.’”
Commonwealth v. Ealy, 12 Va. App. 744, 755, 407 S.E.2d 681, 688 (1991) (quoting Segura v.
United States, 468 U.S. 796, 815 (1984)); see Wong Sun, 371 U.S. at 488. Since “the purpose of
the exclusionary rule [i]s ‘to deter police misconduct,’” Johnson v. Commonwealth, 21 Va. App.
172, 175, 462 S.E.2d 907, 909 (1995) (quoting Derr v. Commonwealth, 242 Va. 413, 422, 410
S.E.2d 662, 667 (1991)), the remedy of excluding illegally obtained evidence is available only
when the evidence is “obtained either during or as a direct result” of the illegal search or seizure,
Wong Sun, 371 U.S. at 485.
The facts of this case are distinguishable from those in Smith v. Commonwealth, 12
Va. App. 1100, 407 S.E.2d 49 (1991), where this Court held that the exclusionary rule required
the suppression of contraband first discovered by an officer during an unlawful pat-down search.
In Smith, the police officer, suspecting that Smith was hiding drugs in his pants, began a
pat-down search of Smith’s clothing. Smith began struggling, so the officer held Smith’s arms in
the air and grabbed the front of Smith’s pants, pulling them open so he could see what was
inside. When the pants opened, the officer observed a clear plastic bag full of what appeared to
be blue-capped vials of crack cocaine. Smith broke free and fled on foot, and the officer, who
-5-
knew that Smith possessed drugs, pursued him. After capturing Smith, the officer retraced
Smith’s flight and found a clear plastic bag with nineteen blue-capped vials of crack cocaine. Id.
at 1102, 407 S.E.2d at 51.
On appeal from the denial of Smith’s motion to suppress the drugs, this Court held that
the officer lacked reasonable suspicion to conduct a pat-down search and that the crack cocaine,
“although abandoned by the defendant during flight, was first discovered by the police officer
during his attempt to search the defendant during an investigatory stop.” Id. at 1104, 407 S.E.2d
at 52 (emphasis added). Because the crack cocaine was discovered during the first illegal search,
this Court held that the trial court should have suppressed these drugs. Id.
Unlike in Smith, appellant’s handgun was not first discovered during Officer Blount’s
seizure of appellant. Here, appellant ceased submitting to Officer Blount’s authority and instead
began running away from the officer. During his flight on foot, appellant tripped and fell,
causing the handgun to fall from his waistband, where it had been concealed, and land on the
ground. The officer never observed the handgun until it fell to the ground while appellant was
fleeing from him. Because “[t]he primary justification for the exclusionary rule” is “the
deterrence of police conduct that violates” a defendant’s constitutional rights, Stone v. Powell,
428 U.S. 465, 486 (1976), the purpose of the exclusionary rule is satisfied only by the
suppression of evidence that is the “foreseeable consequence[] of the police’s illegal conduct.”
State v. Washington, 585 P.2d 249, 253 (Ariz. Ct. App. 1978). Here, however, appellant’s
counsel conceded during oral argument before this Court that appellant’s accidental dropping of
the handgun was an entirely unforeseeable result of the officer’s seizure of appellant.
Thus, appellant’s accidental loss of the handgun during his flight was an independent
source for the discovery and recovery of the handgun – separate and “sufficiently
distinguishable” from Officer Blount’s seizure of appellant. Wong Sun, 371 U.S. at 488.
-6-
Therefore, the discovery of the handgun is not “fruit of the poisonous tree,” as its discovery is
not the foreseeable result of the earlier seizure of appellant by the police and, therefore, its
admissibility is not an “exploitation” of any police action here that we assume without deciding
is illegal. Id. Put another way, Officer Blount’s discovery of the handgun was not a direct result
of his seizure of appellant, but rather was the result of appellant accidentally tripping and falling
while he fled from the officer. See California v. Hodari D., 499 U.S. 621, 625 (1991) (“If, for
example, [the officer] had laid his hands upon Hodari to arrest him, but Hodari had broken away
and had then cast away the cocaine, it would hardly be realistic to say that that disclosure had
been made during the course of an arrest.”); see also State v. Lisenbee, 13 P.3d 947, 951 (Nev.
2000) (“[W]e must conclude that flight after a seizure occurs is an effectual end to that seizure.
Thus, any conduct during flight should be considered apart from the illegal police action.” (citing
Hodari D, 499 U.S. at 625)). On these facts, even if we assume without deciding that Officer
Blount seized appellant in violation of the Fourth Amendment, we conclude that suppression of
the handgun is not required. Wong Sun, 371 U.S. at 485, 488.
III. CONCLUSION
Because the handgun was discovered by means sufficiently attenuated from Officer
Blount’s initial seizure of appellant – that occurred prior to appellant’s flight on foot – we hold
that the recovery of the handgun by Officer Blount was not “fruit of the poisonous tree.”
Accordingly, we affirm the trial court’s denial of appellant’s motion to suppress the handgun as
evidence in this case.
Affirmed.
-7-