COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued by teleconference
ANGELO LEWIS FORD
OPINION BY
v. Record No. 0119-97-2 JUDGE RUDOLPH BUMGARDNER, III
SEPTEMBER 1, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
D. Gregory Carr (Bowen, Bryant, Champlin &
Carr, on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Angelo Ford was convicted of grand larceny during a bench
trial. The appellant contends the court erred by denying his
motion to suppress because: (1) the stop was invalid; (2) the
appellant was subjected to custodial interrogation without being
given Miranda warnings; and (3) the show-up was unduly
suggestive. In addition, the appellant alleges the trial court
erred in denying his motion challenging the sufficiency of the
evidence. For the following reasons, we affirm the trial court's
decision.
The evidence at the appellant's trial proved that, on
November 27, 1995, Detective J.A. Capocelli observed the
appellant walking with two women in the parking lot of the
Cloverleaf shopping mall. The appellant was carrying a white
plastic bag. As they approached a wooded area on the east side
of the lot, the appellant and the two women looked over their
shoulders several times. The appellant then separated from the
two women and entered a wooded area adjacent to the parking lot.
Detective Capocelli lost sight of the appellant for the minute
or two he was in the wooded area. The appellant then exited the
woods without the white plastic bag and returned to the two
women. The appellant and one of the women started walking toward
the woods together but then turned back and joined the second
woman. All three then walked into the mall.
After the appellant and the two women entered the mall,
Detective Capocelli went into the wooded area and "after about
ten seconds of searching, . . . found a white plastic bag hidden
underneath two old mattresses that were disposed in the woods."
The bag was similar in appearance to the one he had earlier seen
the appellant carry into the wooded area. No other white bag was
found. Inside the bag were five pieces of women's clothing that
were "rolled up." The clothing had store tags indicating they
came from a store named "Lane Bryant." There was no sales slip
or receipt inside the bag. Detective Capocelli replaced the
clothing and the bag in the wooded area and returned to his car.
About thirty to forty-five minutes after Detective Capocelli
had seen the appellant and the two women enter the mall, the
detective observed them exit the mall and walk east on Midlothian
Turnpike. Detective Capocelli and three uniformed police
officers, who had been informed of the detective's observations,
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stopped the appellant and the two women by approaching them in
vehicles with blue police lights activated. Detective Capocelli
exited his vehicle and approached the appellant while two
officers exited their cars and approached the two women.
Detective Raymond Michael Louth attempted to ascertain whether
the appellant had been in Lane Bryant that day.
Detective Capocelli asked the appellant for his name and any
identification. The appellant provided neither. While most
questions were geared toward identification, Detective Capocelli
did ask the appellant if he could explain his actions in the
parking lot. Early during the stop, the appellant denied being
on the mall property, denied carrying a bag, and denied knowing
the two females with him. Detective Capocelli testified at trial
that the appellant was not free to leave and that he asked the
appellant many questions more than once. The appellant was read
his Miranda rights about thirty minutes after he was stopped.
The appellant subsequently asked for an attorney.
Detective Louth, who had observed the appellant and the two
women in the mall, retrieved the white bag from the woods after
Detective Capocelli had told him where it was located. Detective
Louth then took the clothing in the bag to Lane Bryant. He drove
a store clerk to where Detective Capocelli was talking to the
appellant, but the clerk did not recognize him. Detective Louth
then transported another clerk, Nicole Dance El, to the scene of
the appellant's stop. Although Ms. El had not previously given a
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description of the appellant to Detective Louth, she told him
that the people being detained had been in the store that day;
she recognized a hat worn by one of the women. Ms. El recalled
the appellant and the two women because they were one of only two
customers she had assisted that day. She had noted nothing
unusual about the appellant's behavior in the store.
Ms. El testified that when items are purchased from Lane
Bryant, the store's practice is to have the cashier tear off the
bottom half of the store tag. She also stated that the value of
the clothing in the bag was between $340-$350.
I. Motion to Suppress
When a motion to suppress is reviewed on appeal, the burden
is on the appellant to show that the ruling, when the evidence is
considered in the light most favorable to the Commonwealth,
constituted reversible error. See Fore v. Commonwealth, 220 Va.
1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017
(1980). We review the trial court's findings of historical fact
only for "clear error," but we review de novo the trial court's
application of defined legal standards, such as "reasonable
suspicion" and "custodial interrogation," to the particular facts
of a case. See Shears v. Commonwealth, 23 Va. App. 394, 398, 477
S.E.2d 309, 311 (1996); see also Ornelas v. United States, 517
U.S. 690, 700 (1996).
A police officer may stop and detain a person "for purposes
of investigating possible criminal behavior even though there is
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no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1,
22 (1968); DePriest v. Commonwealth, 4 Va. App. 577, 585, 359
S.E.2d 540, 544-45 (1987), cert. denied, 488 U.S. 985 (1988).
Investigative stops must be based on articulable facts supporting
a reasonable suspicion that, based on the totality of
circumstances, the suspect detained has committed or is about to
commit a crime. See United States v. Cortez, 449 U.S. 411,
417-18 (1981); Leeth v. Commonwealth, 223 Va. 335, 340, 288
S.E.2d 475, 478 (1982) (a stop requires a less stringent test
than probable cause); DePriest, 4 Va. App. at 584, 359 S.E.2d at
543. A trained and experienced police officer may be able to
detect criminal behavior that might appear innocent to an
untrained observer. See Cortez, 449 U.S. at 418; Taylor v.
Commonwealth, 6 Va. App. 384, 388, 369 S.E.2d 423, 425 (1988).
We hold that Detective Capocelli had a reasonable,
articulable suspicion that the appellant had committed a crime at
the time he was stopped. The detective observed the appellant
walking from the mall toward a wooded area while carrying a white
plastic bag and looking over his shoulder several times. He then
observed the appellant walk into a wooded area and emerge a few
minutes later without the bag. The detective retrieved the bag
moments later and discovered it contained what appeared to be
stolen items of women's clothing. Based on these facts,
Detective Capocelli could reasonably surmise that the appellant
had engaged in criminal activity. See Cortez, 449 U.S. at
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421-22. In addition, the record established that the detective
communicated this information to the other officers who assisted
in the stop. Detaining suspects expeditiously to avoid their
possible flight or remaining at large promotes the government's
interest in solving crimes and bringing offenders to justice,
United States v. Hensley, 469 U.S. 221, 229 (1985), and in this
case, Detective Capocelli and the other officers acted with
dispatch. As such, we cannot say that the trial court erred when
it concluded that the investigative stop was valid.
Next we consider whether the appellant was in custody when
questioned. An investigative stop requires Miranda safeguards
when, considering all factors, a suspect is "in custody." See
Wass v. Commonwealth, 5 Va. App. 27, 32, 359 S.E.2d 836, 839
(1987); Commonwealth v. Milner, 13 Va. App. 556, 558, 413 S.E.2d
352, 353 (1992) (citing Berkemer v. McCarty, 468 U.S. 420, 440
(1984)). Whether a suspect is "in custody" under Miranda is
determined by the circumstances of each case, and "the ultimate
inquiry is simply whether there is a 'formal arrest or restraint
on freedom of movement' of the degree associated with formal
arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983)
(citation omitted). A temporary detention for purposes of
investigation, without more, does not necessarily render a person
"in custody." See United States v. Brignoni-Ponce, 422 U.S. 873,
881-82 (1975); DePriest, 4 Va. App. at 587, 359 S.E.2d at 545;
Dixon v. Commonwealth, 11 Va. App. 554, 556, 399 S.E.2d 831,
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832-33 (1991).
In this case, the evidence supports the trial court's
finding that the appellant was not in custody at the time his
statements were made. The appellant was detained on a public
street in the middle of the afternoon. Although he was not free
to leave, he was not restrained, handcuffed, or searched. While
four officers were present with police vehicles, there were three
suspects, and one officer was ascertaining whether the appellant
had been in the store. The appellant was not surrounded, and
only Detective Capocelli asked him questions. Most of the
questions were related to identification, and police may, within
the scope of an investigative stop, ask a suspect to explain
suspicious circumstances. See Brignoni-Ponce, 422 U.S. at
881-82. Detective Capocelli testified that he never told the
appellant that he was being apprehended for alleged grand
larceny. Under these circumstances, we cannot say that a
reasonable person in the appellant's position would have believed
that his encounter with the officers had escalated from an
investigative detention to an arrest.
The thirty-minute detention before Miranda warnings were
issued does not affect our decision.
Much as a "bright line" rule would be
desirable, in evaluating whether an
investigative detention is unreasonable,
common sense and ordinary human experience
must govern over rigid criteria.
* * * * * * *
In assessing whether a detention is too
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long in duration to be justified as an
investigative stop, we consider it
appropriate to examine whether the police
diligently pursued a means of investigation
that was likely to confirm or dispel their
suspicions quickly, during which time it was
necessary to detain the defendant.
United States v. Sharpe, 470 U.S. 675, 685-86 (1985). See
United States v. Alpert, 816 F.2d 958 (4th Cir. 1987)
(fifty-minute delay for obtaining narcotics dog is permissible);
Thomas v. Commonwealth, 16 Va. App. 851, 856-57, 434 S.E.2d 319,
322-23 (1993), aff'd, 18 Va. App. 454, 444 S.E.2d 275 (1994) (en
banc) (lawful to handcuff and transport suspect in police vehicle
to victim's house for identification); Burgess v. Commonwealth,
14 Va. App. 1018, 1022, 421 S.E.2d 664, 666 (1992) (forty-minute
detention in police vehicle is permissible where police are
determining whether car was stolen).
Here, the appellant was subjected to an investigative stop
for the purpose of determining whether he had been in the Lane
Bryant store. The police saw him walking away from the mall and
acted quickly to detain him for investigative purposes. As a
result of the stop, Detective Capocelli's suspicions were further
aroused. The appellant made statements that contradicted the
detective's personal observations. In addition, Detective Louth
recovered the white plastic bag from the wooded area and
determined that the clothing it contained had been stolen and
that the appellant had been in Lane Bryant earlier in the day.
The officers acted diligently and without unnecessary or
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deliberate delay to effectuate the purpose of the stop. Thus, we
conclude that the trial court properly denied the appellant's
motion to suppress.
The appellant also contends the show-up was unduly
suggestive and violated his due process rights. We disagree.
Pre-trial show-ups are not per se violative of
constitutional rights. Reliability of the show-up is determined
by considering the totality of circumstances. See Neil v.
Biggers, 409 U.S. 188, 198-99 (1972); Yarborough v. Commonwealth,
15 Va. App. 638, 643, 426 S.E.2d 131, 134 (1993), rev'd on other
grounds, 247 Va. 215, 441 S.E.2d 342 (1994). Courts should
consider the opportunity of the witness to observe the suspect at
the time of the crime, the witness' degree of attention, the
accuracy of the witness' prior description of the suspect, the
level of certainty demonstrated by the witness' confrontation,
and the length of time between the crime and the confrontation.
See Neil, 409 U.S. at 199-200.
In this case, the purpose of the identification was to
determine whether the appellant had been in the store. The first
store clerk did not recognize the appellant. Ms. El identified
the appellant with certainty. She had observed the appellant in
her store, recalled speaking with one of the women with him, and
very little time had elapsed between her observation of them in
the store and the confrontation. The show-up was conducted as
expeditiously as possible. Based on these circumstances, we
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conclude that the show-up was not impermissibly suggestive.
II. Motion to Strike
When an appeal challenges the sufficiency of the evidence,
the evidence is viewed in the light most favorable to the
Commonwealth, granting to it all reasonable inferences deducible
therefrom. A judgment will not be disturbed unless plainly wrong
or unsupported by the evidence. See Code § 8.01-680;
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975); Limonja v. Commonwealth, 8 Va. App. 532, 534, 383
S.E.2d 476, 477-78 (1989) (en banc), cert. denied, 495 U.S. 905
(1990).
A conviction will be affirmed when the circumstantial
evidence excludes every reasonable hypothesis of innocence which
flows from the evidence. See Higginbotham, 216 Va. at 353, 218
S.E.2d at 537; Stamper v. Commonwealth, 220 Va. 260, 272, 257
S.E.2d 808, 817 (1979), cert. denied, 445 U.S. 972 (1980).
The appellant has suggested various inferences that could be
drawn from the evidence which, he asserts, create a reasonable
hypothesis of innocence. He alleges the court erred in denying
his motion to strike because: (1) the larceny presumption that
arises when one is in possession of recently stolen property does
not apply because the property was found in the woods where
several people had access; (2) the bag that was recovered was not
necessarily the same bag that the appellant was seen carrying
into the woods; (3) there was no evidence showing when the items
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in the bag were stolen or when the appellant was in the store;
(4) the Commonwealth did not negate the possibility that the
items were sold and that the clerk forgot to remove the tags; and
(5) the evidence was insufficient to prove the value for grand
larceny.
We hold that the evidence presented at trial was sufficient
to prove that appellant took five items of women's clothing worth
more than $200 from Lane Bryant without the store's permission
and with the intent to permanently deprive the store of
possession of these goods. The record established that appellant
was at Lane Bryant on the day of the theft. He was seen carrying
a white plastic bag in the mall parking lot while glancing
furtively over his shoulder. He entered a wooded area with the
bag and returned to the parking lot a minute or two later without
it. Detective Capocelli quickly retrieved the bag after the
appellant re-entered the mall. No other white bag was located in
the wooded area, and no other persons were observed there. The
bag contained five articles of women's clothing from Lane Bryant
but no sales receipt, and the store tags were still attached to
the clothing. The record established that, when clothing is
purchased from Lane Bryant, the store's practice is to tear off
the bottom half of the store tag. Detective Louth took the
clothing to the store and an employee valued the items at more
than $300.
The fact finder considered and rejected the facts and
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inferences presented by the appellant. See Cook v. Commonwealth,
226 Va. 427, 432, 309 S.E.2d 325, 329 (1983). In addition, the
appellant's false statements to police constitute further
evidence of his guilt. See Walker v. Commonwealth, 25 Va. App.
50, 60, 486 S.E.2d 126, 131 (1997). The evidence was sufficient
to find the appellant guilty of grand larceny. We find no error.
For the foregoing reasons, the trial court's decision is
affirmed.
Affirmed.
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Benton, J., dissenting.
A person "who has been detained . . . [by the police and is]
thereafter . . . subjected to treatment that renders him 'in
custody' for practical purposes, [is] entitled to the full
panoply of protections prescribed by Miranda." Berkemer v.
McCarty, 468 U.S. 420, 440 (1984). The detention becomes
"custodial" for purposes of Miranda whenever the person has his
or her "freedom of action . . . curtailed to a 'degree associated
with formal arrest.'" Id. (citation omitted).
Furthermore, whether a person is "in custody" within the
meaning of Miranda turns upon "how a reasonable [person] in the
suspect's position would have understood his situation." Id. at
442. "Thus, a suspect is 'in custody' when the objective
circumstances would lead a reasonable person to believe he was
under arrest, thereby subjecting him or her to pressure impairing
the free exercise of the privilege against self-incrimination."
Cherry v. Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242, 245
(1992). "[T]he initial determination of custody depends on the
objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers or
the person being questioned." Stansbury v. California, 511 U.S.
318, 323 (1994).
Among the factors that must be considered are
whether a suspect is questioned in familiar
or neutral surroundings, the number of police
officers present, the degree of physical
restraint, and the duration and character of
the interrogation. Whether or when probable
cause to arrest exists and when the suspect
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becomes the focus of the investigation are
relevant facts to consider. "[T]he language
used by the officer to summon the individual,
the extent to which he or she is confronted
with evidence of guilt, the physical
surroundings of the interrogation, the
duration of the detention and the degree of
pressure applied to detain the individual"
may be significant factors as well.
Wass v. Commonwealth, 5 Va. App. 27, 32-33, 359 S.E.2d 836, 839
(1987) (citations omitted).
When Angelo Ford left the shopping mall, he was stopped on
the street by four police officers, three of whom were in uniform
and armed with weapons. The officers arrived in four separate
police vehicles with their blue emergency lights activated to
effect the stop. The officer who detained and questioned Ford
testified that Ford was not free to leave. Furthermore, the
circumstances certainly proved that Ford was not free to
terminate the encounter.
When the police initially stopped Ford, they did so based
upon an officer's specific identification of Ford as the person
who went into the wooded area behind the shopping mall and hid a
bag containing items with intact store tags. Thus, when the
officers detained Ford, the investigation had not only focused on
Ford but had particularly identified the Lane Bryant clothing
store as the place from which the items originated.
During the detention, Ford was questioned about his
identity. After the officers questioned Ford about his identity,
the officers then repeatedly questioned Ford for an "explanation
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[of] the activity that [the officer] witnessed . . . inside the
[mall's] parking lot." Ford was questioned about those events
for thirty minutes. In addition to the extensive questioning,
the police detained Ford to allow two store workers to be brought
separately from Lane Bryant to view Ford.
Based on the length of the detention, the number of police
officers involved, the nature and repetition of the questions
being asked, and the fact that the investigation had focused on
Ford, I would hold that the circumstances of the detention and
questioning constituted a custodial interrogation. The
questioning of Ford was initiated before he was viewed by the
store employees. Furthermore, the questioning was designed at
the outset to produce incriminating statements from the precise
person whom the officer had seen engaging in conduct that the
officer believed was criminal. Only after Ford made statements
in response to repeated questioning did the officers inform Ford
of his Miranda rights.
The totality of the objective circumstances in this case
would lead a reasonable person in Ford's position to believe he
or she was under arrest. See Cherry, 14 Va. App. at 139, 415
S.E.2d at 245. The detention was not of a short duration but
lasted thirty minutes. A reasonable person in Ford's position
would clearly have felt he or she was unable to leave and that he
or she was, in fact, "in custody." The only reasonable
assumption to draw from this record is that if Ford had attempted
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to leave, he would have been formally arrested. This detention
was the "functional equivalent of formal arrest," Berkemer, 468
U.S. at 442, and created a custodial situation requiring
appropriate Miranda warnings.
A person in police custody "must be warned that he has a
right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the
presence of an attorney." Miranda v. Arizona, 384 U.S. 436, 444
(1966). Statements made by an accused during custodial
interrogation and without proper Miranda warnings are
inadmissible as evidence. See Dean v. Commonwealth, 209 Va. 666,
667-68, 166 S.E.2d 228, 230 (1969).
Because Ford was not warned of his Miranda rights prior to
the questioning that led to his incriminating statements, I would
hold that the statements were obtained in violation of Ford's
Fifth Amendment rights and that all the evidence derived from his
statements was tainted under the rule of Wong Sun v. United
States, 371 U.S. 471, 488 (1963). Because the statements and
evidence should have been suppressed, I dissent.
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