Davis v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia

JOHN HERBERT DAVIS
OPINION BY
v. Record No. 0020-00-1 JUDGE JEAN HARRISON CLEMENTS
MAY 22, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
E. Everett Bagnell, Judge

Ronald L. Smith for appellant.

Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee

John Herbert Davis was convicted in a bench trial of driving

on a suspended operator's license. 1 On appeal, he contends the

trial court erred in denying his motion to suppress evidence from

a traffic stop that his driver's license was suspended. Finding

no error, we affirm the judgment of the trial court.

1
Davis was also convicted of refusing to take a blood or
breath test. This Court does not have jurisdiction over an
appeal from a conviction of refusal to take a blood or breath
test. See Commonwealth v. Rafferty, 241 Va. 319, 402 S.E.2d 17
(1991). Therefore, the portion of the appeal challenging that
conviction is transferred to the Supreme Court of Virginia
pursuant to Code § 8.01-677.1.
 BACKGROUND

On February 22, 1999, Sergeant R.K. Moore received a

dispatch to a fight in progress in the Pinewood subdivision in

the Town of Smithfield in Isle of Wight County. Moore could not

recall the address to which he was dispatched; however, it was

not the same street or address where he later encountered Davis.

The officer had no description of the suspect.

While en route to the scene of the fight, Officer Moore

received a radio transmission from another officer who was

already on the scene. The other officer told Moore that the

suspect was running toward Pinewood Drive, but, again, Moore was

given no description of the suspect.
When Officer Moore arrived at Pinewood Drive, which was in

the same subdivision where the fight occurred, he saw a vehicle

rapidly backing out of a driveway. Davis was the operator of

that vehicle. Based on the information given to him by dispatch

and by the officer on the scene of the fight, Moore stopped

Davis's vehicle to determine if Davis had been engaged in the

fight. Moore held Davis only long enough to determine if he was

the suspect in the fight and if he was wanted for any other

offenses. Moore ran a check on Davis's driver's license and

determined that it was suspended. Officer Moore also determined

that Davis was not the suspect in the fight and was not wanted

for any other offenses. Moore then released Davis and told him

not to drive because his driver's license was suspended.

Later that day, Officer Moore saw Davis driving. Based on

the information he had obtained in the first stop—that Davis's

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license was suspended—Moore stopped Davis and arrested him for

driving on a suspended license.

ANALYSIS

Davis contends Officer Moore did not have a reasonable,

articulable suspicion to stop him on Pinewood Drive. Therefore,

he contends, the information that his driver's license was

suspended was unlawfully obtained in violation of his Fourth

Amendment rights. He further argues that the second stop was

unlawful because it was solely based on the fruits of the first

illegal stop. Thus, he concludes, the trial court erred when

denying his motion to suppress.
The Commonwealth first contends Davis's arguments are

procedurally barred because the record, an agreed statement of

facts, does not show what evidence from each stop was admitted at

trial. We disagree with the Commonwealth and find that Davis's

arguments are not procedurally barred.

Our review of an appeal is restricted to the record. Turner

v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 401 (1986).

Davis has the burden to preserve an adequate record on appeal to

allow us to consider the propriety of the trial court's actions.
See Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6

(1993).

Here, the agreed statement of facts reads, in pertinent

part, as follows:

Based on the information received from the
dispatch and the first officer on the scene,
the officer conducted a traffic stop on the
Appellant's vehicle to determine if he had
been engaged in the fight. . . . When it was
determined that the Appellant was not the
suspect and was not wanted he was released

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 and instructed not to drive due the [sic] to
the fact that the Appellant's driver's
license was checked and determined that he
was suspended. The Appellant moved to
suppress the evidence that was obtained as a
result of the stop and the second stop.
Appellant maintained that the second stop was
based on the fruits of the first stop, which
was unconstitutional.

Despite its lack of precision, we are able to determine from the

agreed statement of facts the evidence from the first traffic

stop that Davis sought to have suppressed at trial, namely, the

discovery by Officer Moore that Davis's license was suspended.

The statement of facts also reveals that Davis sought to have all

evidence of the second stop excluded at trial because that stop

was conducted based on evidence that, according to Davis, was

illegally obtained during the first stop. Accordingly, we find

that the record sufficiently identifies the evidence that Davis

claims was improperly admitted at trial.
"In reviewing a trial court's denial of a motion to

suppress, 'the burden is upon [the defendant] to show that the

ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.'" McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (alteration in original) (quoting Fore v. Commonwealth,

220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). While we are

bound to review de novo the ultimate questions of reasonable

suspicion and probable cause, we "review findings of historical

fact only for clear error 2 and . . . give due weight to

2
"In Virginia, questions of fact are binding on appeal
unless 'plainly wrong.'" McGee, 25 Va. App. at 198 n.1, 487
S.E.2d at 261 n.1 (quoting Quantum Div. Co. v. Luckett, 242 Va.
159, 161, 409 S.E.2d 121, 122 (1991)).

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inferences drawn from those facts by resident judges and local

law enforcement officers." Ornelas v. United States, 517 U.S.

690, 699 (1996) (footnote added).

"If a police officer has reasonable, articulable suspicion

that a person is engaging in, or is about to engage in criminal

activity, the officer may detain the suspect to conduct a brief

investigation without violating the person's Fourth Amendment

protection against unreasonable searches and seizures." McGee,

25 Va. App. at 202, 487 S.E.2d at 263 (citing Terry v. Ohio, 392

U.S. 1 (1968)). An investigatory stop under Terry anticipates
that some innocent people may be stopped. See Illinois v.

Wardlow, 528 U.S. 119, 126 (2000). Nevertheless, it is a lawful

stop designed to permit an officer with reasonable suspicion of

criminal activity to quickly confirm or dispel that suspicion.

Id. An innocent person will be detained only briefly and then

will be permitted to go on his or her way. Id.

To determine whether an officer had a reasonable suspicion

justifying an investigatory stop, we must examine the "totality

of the circumstances and view those facts objectively through the

eyes of a reasonable police officer with the knowledge, training,

and experience of the investigating officer." Murphy v.

Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128 (1989).

"'[A] trained law enforcement officer may [be able to] identify

criminal behavior which would appear innocent to an untrained

observer.'" Freeman v. Commonwealth, 20 Va. App. 658, 661, 460

S.E.2d 261, 262 (1995) (alterations in original) (quoting Taylor

v. Commonwealth, 6 Va. App. 384, 388, 369 S.E.2d 423, 425

(1988)). The articulable suspicion must be more than a hunch,

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but the facts need not show that criminal activity "actually is

afoot, only that it may be afoot." Richards v. Commonwealth, 8

Va. App. 612, 617, 383 S.E.2d 268, 271 (1989).

The Fourth Amendment does not require a
policeman who lacks the precise level of
information necessary for probable cause to
arrest to simply shrug his shoulders and
allow a crime to occur or a criminal to
escape. On the contrary, Terry recognizes
that it may be the essence of good police
work to adopt an intermediate response. A
brief stop of a suspicious individual, in
order to determine his identity or to
maintain the status quo momentarily while
obtaining more information, may be most
reasonable in light of the facts known to the
officer at that time.
Lee v. Commonwealth, 18 Va. App. 235, 239, 443 S.E.2d 180, 182

(1994). We have recognized that the circumstances necessary to

serve as a basis for a reasonable, articulable suspicion that

criminal activity is afoot may include the "characteristics of

the area where the stop occurs, the time of the stop, . . .

suspicious conduct of the person, proximity to the scene of a

recently committed crime[,] and racial identity." Miller v.
Commonwealth, 16 Va. App. 977, 980, 434 S.E.2d 897, 899 (1993)

(citation and internal quotations omitted).

The record in this case establishes that, in the early

morning hours of February 22, 1999, Officer Moore received a call

from police dispatch regarding a fight in progress in the

Pinewood subdivision. While Officer Moore was en route to the

scene of the reported fight in response to the call from

dispatch, another officer already on the scene of the fight

radioed that the suspect was running toward Pinewood Drive, a

location in the same subdivision. When Officer Moore arrived at

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Pinewood Drive, he saw a motor vehicle being rapidly backed out

of a driveway. Based on the information Moore received from

dispatch, the information Moore received from the officer on the

scene, and Moore's observation of the conduct of the driver of

the motor vehicle, we find that Officer Moore had a reasonable,

articulable suspicion that a crime had been committed and that

the person leaving the area in the vehicle was the suspect. This

information was sufficient to justify Officer Moore's

investigatory stop of Davis's vehicle.
Thus, based on our independent examination of the totality

of the circumstances reflected in the record, we conclude that

Officer Moore did not violate Davis's Fourth Amendment rights

when making the initial stop. Davis's challenge to the legality

of the second stop assumes the first stop was improper. Having

found no impropriety in the initial stop, we conclude that his

argument regarding the second stop is without merit. Therefore,

we hold that the trial court did not err in denying Davis's

motion to suppress. Accordingly, we affirm Davis's conviction

for driving on a suspended operator's license.
Affirmed.

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Benton, J., concurring in part and dissenting in part.

I concur in the holding that John Herbert Davis's arguments

are not procedurally barred and that the record sufficiently

identifies the evidence he contends was improperly admitted at

trial. I dissent, however, from the holding that the trial

judge did not err in denying Davis's motion to suppress.

In Illinois v. Wardlow, 528 U.S. 119 (2000), police

officers were "converging on an area known for heavy narcotics

trafficking in order to investigate drug transactions" when the

officers "observed . . . Wardlow standing next to [a] building

holding an opaque bag." Id. at 121-22. The officers seized

Wardlow after he "looked in the direction of the officers and

fled." Id. at 122. The Supreme Court held that the officers

articulated a reasonable suspicion that Wardlow was engaged in

criminal activity because of his "presence in an area of heavy

narcotics trafficking," the usual presence of drug sellers and

lookouts, and "his unprovoked flight upon noticing the police."

Id. at 124. It is this series of acts that gave rise to a

reasonable suspicion of criminal conduct in Wardlow.

The facts of Wardlow are not remotely similar to the

circumstances surrounding the officer's detention of Davis.

When the officer received a dispatch to investigate a fight,

"[h]e had no description of the suspect" involved in the fight.

As the officer was en route in his automobile from an

unspecified distance away from the neighborhood, he learned that

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the suspect was running away but received "no description of the

suspect at that time." In short, this officer was told to

detain a person without having any description of that person or

the clothing the person was wearing.

The officer was told the person was running. Davis was not

running. The officer never received a report that the suspect

was driving a car. Yet, when the officer arrived at some

undetermined time after the alert, he detained Davis. Although

Davis's vehicle "rapidly back[ed] out of a driveway," no

evidence established that he was fleeing the police, saw the

officer, or behaved suspiciously. The record fails to disclose

the basis for the officer's conclusion that Davis might have

been the suspect or any other reason for stopping the vehicle

and detaining Davis.

The fact that Davis was backing a car out of the driveway

on a residential street toward which "the suspect was running"

only provided the officer a hunch that Davis might have been the

undescribed person that was seen running away. However, "the

Fourth Amendment requires that a seizure must be based on

specific, objective facts indicating that society's legitimate

interests require the seizure of the particular individual."

Brown v. Texas, 443 U.S. 47, 51 (1979). "An individual's

presence in an area of expected criminal activity, standing

alone, is not enough to support a reasonable, particularized

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suspicion that the person is committing a crime." Wardlow, 528

U.S. at 124.

In this case, the officer's basis for the detention

included only the fact that a disturbance had occurred several

blocks away and a person had run toward the street where Davis

later was backing his car "rapidly" out of a driveway. The

evidence does not even establish that this street was an "area

of expected criminal activity." Moreover, the Commonwealth did

not prove that Davis's conduct in driving his car was in any way

suspicious. The logical conclusion of the Commonwealth's

argument is that the officer could have detained any citizen on

that street. In perverse fashion, the Commonwealth uses the

fact that the officer had no description of the suspect as an

affirmative factor to support the detention of Davis. The

Supreme Court long ago ruled, however, that "an understandable

desire to assert a police presence . . . does not negate Fourth

Amendment guarantees." Brown, 443 U.S. at 52. This officer's

failure to articulate more than an "inchoate and

unparticularized suspicion or 'hunch'" that Davis was engaged in

criminal activity renders his detention of Davis unlawful.

Terry v. Ohio, 392 U.S. 1, 27 (1968).

In addition, the record proved that the officer used this

detention as an opportunity to learn whether Davis "was wanted

for any other offenses." To do so, he secured and checked

Davis's driver's license, which caused him to learn Davis "was

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suspended." Thus, the initial unlawful detention was extended

to include matters that had no bearing on the fight

investigation. The record contains no explanation for the

officer's decision to abandon the search for the fight suspect

and focus on "other offenses."

Later that same day, the officer again detained Davis

because he had learned during the earlier unlawful detention

that Davis's "license was suspended." The evidence in this

record proved no "means sufficiently distinguishable" from the

initial detention to purge the officer's second detention of

Davis from the "taint" of the initial unlawful detention. Wong

Sun v. United States, 371 U.S. 471, 488 (1963). The

exclusionary rule encompasses not only primary evidence that is

obtained as a direct result of an unlawful seizure, see Weeks v.

United States, 232 U.S. 383 (1914), but also evidence that is

derivative of the unlawful seizure, which is often called "a

fruit of the poisonous tree." Nardone v. United States, 308

U.S. 338, 341 (1939). In other words, the exclusionary rule

"extends as well to the indirect as the direct products of

[unconstitutional] invasions." Wong Sun, 371 U.S. at 484.

This is not "a case in which the connection between the

lawless conduct of the police and the discovery of the

challenged evidence has 'become so attenuated as to dissipate

the taint.'" Id. at 487 (citation omitted). The record clearly

establishes the primary illegality and further proves that "the

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evidence to which instant objection is made has been come at by

exploitation of that illegality . . . [and not] by means

sufficiently distinguishable to be purged of the primary taint."

Id. at 488. To lawfully arrest Davis for this later violation,

the officer must have been acting on facts or circumstances that

bear no taint of the initial illegal detention. The evidence

fails to establish an independent basis for the second

detention.

For these reasons, I would hold that the identification and

detention of Davis during the second detention were "come at by

the exploitation of that [initial] illegality," id., and, thus,

may not be used. Because the trial judge erred in refusing to

suppress the evidence, I would reverse the conviction and remand

for a new trial.

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