COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata
Argued at Richmond, Virginia
JOHN ANTONIO WILSON
OPINION BY
v. Record No. 1996-99-2 JUDGE SAM W. COLEMAN III
NOVEMBER 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
David P. Baugh for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
John Antonio Wilson was convicted of distribution of
cocaine. Wilson entered a conditional guilty plea, reserving the
right to appeal the trial court's denial of his motion to suppress
his post-arrest statements. The sole issue on appeal is whether
the two-hour delay after Wilson was arrested and before he was
brought before a magistrate violated his Fourth Amendment right to
a prompt judicial determination of probable cause. Finding no
error, we affirm.
BACKGROUND
At approximately 7:15 p.m., Sergeant Christopher Preuss of
the Virginia Commonwealth University (VCU) Police Department was
conducting surveillance of an off-campus house, which was,
nonetheless, within the jurisdiction of the VCU police department.
Hidden from view and using a telescope, Preuss observed Wilson
sitting on the front stoop of his house. An unidentified person
approached Wilson, and the two had a brief conversation. The
person then handed Wilson some U.S. currency. In turn, Wilson
handed the person an object, which he had cupped in his hands, and
some U.S. currency.
After the transaction, the person walked away, but he was
apprehended a short distance from the scene by Officer Michael
O'Berry. After giving the person his Miranda warnings, O'Berry
questioned the person and, when confronted, the person admitted he
had just purchased cocaine from Wilson and still possessed it.
Preuss and three other officers then went to Wilson's house and
arrested him for distribution of cocaine within one thousand feet
of an elementary school. Wilson was given his Miranda warnings
and taken to the VCU police station. Wilson made no incriminating
statements at the scene of the arrest.
Preuss testified that while he was processing Wilson at the
VCU police station, Wilson made an inculpatory statement. The
Commonwealth introduced evidence that Wilson stated:
He was a drug user, used cocaine to combat
depression. He said he did not sell drugs,
he could give the police someone who sold
weight, that he could get this person to
sell to him.
[He] further stated that all but $100
of the $1,130 found on him incident to
arrest belonged to his mother and that he
was holding the money because she was sick.
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He indicated that he had just been paid from
his job at an automotive business where he
worked 40 hours per week and earned $6.50 an
hour.
At the police station, the officers took "extraordinary
procedures to try to keep the alleged buyer and [Wilson] apart" so
that Wilson and the buyer could not confront each other. After
the buyer was "processed," Wilson was "processed." The processing
procedure included fingerprinting, photographs, securing the
evidence, and completing "numerous amounts of paperwork." Preuss
estimated that he kept Wilson at the VCU police station
approximately an hour "processing" him before he was transported
to the Richmond Sheriff's Department and taken before a
magistrate.
Preuss acknowledged that, in an attempt to secure a
confession while processing Wilson, he told Wilson that he had
observed Wilson selling drugs shortly before arresting him and
that the police had also arrested the buyer, who was in custody
and in possession of the drugs that Wilson had sold. Preuss
further stated that he informed Wilson that Wilson could help
himself if he confessed to his involvement in the offense.
Although Wilson was required to be present for some of the booking
procedures, Preuss admitted that Wilson did not need to be present
while Preuss completed some of the paperwork.
Prior to trial, Wilson moved to suppress his inculpatory
statements. The trial court denied the motion. Pursuant to Code
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§ 19.2-254, Wilson entered a conditional plea of guilty and
appealed the denial of his suppression motion.
ANALYSIS
"In considering the trial court's denial of a motion to
suppress, the burden is on appellant to show that the court's
ruling constituted reversible error." Robinson v. Commonwealth,
31 Va. App. 479, 483, 524 S.E.2d 171, 172 (2000) (citing McGee
v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261
(1997) (en banc)). When we review a trial court's denial of a
suppression motion, "[w]e view the evidence in a light most
favorable to . . . the prevailing party below, and we grant all
reasonable inferences fairly deducible from that evidence."
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991) (citing Commonwealth v. Holloway, 9 Va. App. 11,
20, 384 S.E.2d 99, 104 (1989)).
"[T]he Fourth Amendment requires a judicial determination of
probable cause as a prerequisite to extended restraint of liberty
following arrest." Gerstein v. Pugh, 420 U.S. 103, 114 (1975).
"[A] jurisdiction that provides judicial determinations of
probable cause within 48 hours of arrest will, as a general
matter, comply with the promptness requirement of Gerstein."
County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
However, a probable cause determination in a particular case
conducted within forty-eight hours "may nonetheless violate
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Gerstein, if the arrested individual can prove that his or her
probable cause determination was delayed unreasonably." Id.
Examples of unreasonable delay are delays
for the purpose of gathering additional
evidence to justify the arrest, a delay
motivated by ill will against the arrested
individual, or delay for delay's sake. In
evaluating whether the delay in a particular
case is unreasonable, however, courts must
allow a substantial degree of flexibility.
Courts cannot ignore the often unavoidable
delays in transporting arrested persons from
one facility to another, handling late-night
bookings where no magistrate is readily
available, obtaining the presence of an
arresting officer who may be busy processing
other suspects or securing the premises of
an arrest, and other practical realities.
Id. at 56-57.
We hold that the two-hour delay between the time Wilson was
arrested and the time he was brought before the magistrate for a
probable cause hearing was not unreasonable under the
circumstances. Here, during the time Wilson was detained at the
VCU police department, the police officers completed the
necessary paperwork, fingerprinted and photographed Wilson,
packaged and secured the evidence, and called for a wagon to
transport Wilson from the VCU police station to the Richmond
Sheriff's Department. Moreover, while the officers were
processing Wilson, they took "extraordinary procedures" to keep
Wilson and the buyer separated from one another. Although
Preuss admitted that while completing the police paperwork and
processing procedures he questioned Wilson and made comments to
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him in an effort to get Wilson to confess, Wilson has failed to
show that the two-hour delay was merely a "ruse" to gather
information to justify the arrest. We do not confront a
situation where a discrete period of time was devoted to
interrogating Wilson to the exclusion of other booking or
processing procedures. Preuss' questioning of Wilson took place
while he was photographing and fingerprinting Wilson, packaging
the evidence, or doing the other necessary paperwork before
transporting him to the magistrate. Furthermore, Wilson has
failed to show that Preuss' questioning delayed Wilson's
presentment to the magistrate.
Because Wilson has failed to show that the two-hour delay
in transporting him to the probable cause hearing was
unreasonable, the trial court did not err by denying Wilson's
motion to suppress his inculpatory statements. We, therefore,
affirm the trial court's judgment.
Affirmed.
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