COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
DALTON ROGER FORD
OPINION BY
v. Record No. 2683-95-1 JUDGE SAM W. COLEMAN III
SEPTEMBER 10, 1996
CITY OF NEWPORT NEWS
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Richard C. Kerns for appellant.
Owen I. Ashman, Deputy Commonwealth's
Attorney (Howard E. Gwynn, Commonwealth's
Attorney; Charles E. Powell, Deputy
Commonwealth's Attorney; James S. Gilmore,
III, Attorney General; Marla Graff Decker,
Assistant Attorney General, on brief), for
appellee.
Dalton Roger Ford was convicted in a bench trial of
disorderly conduct and possession of a concealed weapon in
violation of §§ 28-11 and 43-2, respectively, of the Newport News
City Code. Ford contends that because he was unlawfully detained
and arrested, the trial court erred by denying his motion to
suppress the arresting police officer's testimony and his motions
to strike the evidence as to both charges. We find that the
evidence is insufficient, based on the statement of fact, to
support a finding that the officer had probable cause to believe
that Ford's conduct was disorderly in violation of Newport News
City Code § 28-11. Accordingly, the officer had no basis to
arrest Ford on that charge and, thus, no basis to search him and
seize his knife. Therefore, we reverse both convictions and
dismiss the charges.
According to the "Written Statement of Facts, and Testimony,
and Other Incidents of the Case," filed pursuant to Rule 5A:8(c),
the Commonwealth's only witness was Officer F. S. Nowak, Jr., of
the Newport News Police Department. Officer Nowak testified that
at approximately 9:00 p.m. on May 24, 1995, he and another
officer were patrolling an area of Newport News known for
prostitution and drug activity. Both officers were in uniform
and riding bicycles.
The officers saw the defendant pushing a bicycle in a small
park and "decided to approach the defendant and ask him his name
and address [because] it was 9:00 p.m. in a location known for
criminal activity." Officer Nowak testified that "he did not
suspect the defendant of prostitution or drug activity, but he
wanted to field interview the defendant because the defendant was
pushing a bicycle, which could be stolen, at night in a known
high crime area." Officer Nowak stopped his bicycle
approximately ten feet from the defendant and asked the defendant
to "come over" to him. According to Nowak, his bicycle light was
on, but neither he nor the other officer "drew their guns" or
"shined a light" on the defendant.
Officer Nowak testified that when he asked the defendant to
come over to him, "the defendant immediately became loud, angry,
and uncooperative." According to Nowak, the defendant stated:
"I'm tired of this shit. The cops in Hampton do the same shit,
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and I'm not going to put up with it anymore." The defendant
continued to use offensive language and threw "his arms about in
the air. The defendant was so loud and boisterous that apartment
dwellers in a nearby building came out on their porch and asked
if the officers needed help." The defendant's actions also
attracted "the attention of other police officers . . . in a
training class in a nearby building . . . who left their training
activities to come to Officer Nowak's assistance if necessary."
Officer Nowak arrested the defendant for disorderly conduct
and searched him incident to that arrest. As a result of the
search, Nowak recovered a lock-blade knife from the defendant's
person.
A law enforcement officer does not implicate the Fourth
Amendment by approaching a citizen in a public place for the
purpose of asking the individual his name and address. See
Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648
(1992) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct.
1319, 75 L.Ed.2d 229 (1983) (plurality opinion)). Furthermore, a
consensual encounter between the police and a citizen becomes a
seizure for Fourth Amendment purposes "only if, in view of all
the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave." Id. (quoting
United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870,
64 L.Ed.2d 497 (1980) (Stewart, J.)). In order for a seizure to
occur, the police must restrain a citizen's freedom of movement
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by the use of physical force or show of authority. California v.
Hodari D., 499 U.S. 621 (1991).
Here, although both officers were in uniform, neither
officer drew his weapon, physically restrained the defendant, or
by show of force or authority indicated that the defendant was
not free to leave. Officer Nowak stopped his bicycle
approximately ten feet from the defendant and requested the
defendant to come over to him. Under these circumstances, "we
find no evidence of 'the threatening presence of several
officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or
tone of voice indicating that compliance with the officer's
request might be compelled.'" Baldwin, 243 Va. at 199, 413
S.E.2d at 649 (quoting Mendenhall, 446 U.S. at 554). Thus, the
initial encounter between the defendant and the police officers
was consensual and no seizure occurred until Officer Nowak
arrested Ford for disorderly conduct. Accordingly, the
dispositive question is whether Officer Nowak had probable cause
to arrest the defendant for disorderly conduct. If so, Officer
Nowak was entitled to search the defendant incidental to the
arrest, Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034,
23 L.Ed.2d 685 (1969); if not, Nowak had no other lawful basis
for searching the defendant or seizing the knife from his pocket.
Section 28-11 of the Newport News City Code provides that
[a] person is guilty of disorderly conduct
and a misdemeanor if, with intent to cause
public inconvenience, annoyance or alarm, or
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recklessly creating a risk thereof, such
person . . . engages in conduct having a
direct tendency to cause acts of violence by
the person or persons at whom, individually,
such conduct is directed; provided, however,
such conduct shall not be deemed to include
the utterance or display of any word.
(Emphasis added). Compare Code § 18.2-415. The requirement that
the defendant's actions or behavior, in order to constitute
disorderly conduct, must have "a direct tendency to cause acts of
violence" is dictated by concern for First Amendment free speech
protections:
[T]he First Amendment protects a significant
amount of verbal criticism and challenge
directed at police officers. "Speech is
often provocative and challenging. . . . [But
it] is nevertheless protected against
censorship or punishment, unless shown likely
to produce a clear and present danger of a
serious substantive evil that rises far above
public inconvenience, annoyance, or unrest."
City of Houston v. Hill, 482 U.S. 451, 461, 107 S. Ct. 2502, 96
L.Ed.2d 398 (1987) (quoting Terminiello v. City of Chicago, 337
U.S. 1, 4, 69 S. Ct. 894, 93 L.Ed. 1131 (1949)).
"[P]robable cause exists when the facts and circumstances
within the officer's knowledge, and of which he has reasonably
trustworthy information, alone are sufficient to warrant a person
of reasonable caution to believe that an offense has been or is
being committed." Jones v. Commonwealth, 18 Va. App. 229, 231,
443 S.E.2d 189, 190 (1994) (quoting Taylor v. Commonwealth, 222
Va. 816, 820, 284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S.
906 (1982)). "The test of constitutional validity is whether at
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the moment of arrest the arresting officer had knowledge of
sufficient facts and circumstances to warrant a reasonable man in
believing that an offense has been committed." Bryson v.
Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250 (1970)
(citations omitted). To establish probable cause, the
Commonwealth must show "a probability or substantial chance of
criminal activity, not an actual showing of such activity." Boyd
v. Commonwealth, 12 Va. App. 179, 188-89, 402 S.E.2d 914, 920
(1991) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13, 103
S. Ct. 2317, 76 L.Ed.2d 527 (1983)). However, "[t]he only
difference between facts needed to establish probable cause and
those needed to prove guilt beyond a reasonable doubt is in the
degree or quantum of proof, not in the facts or elements of the
offense." State v. Moore, 659 S.W.2d 252, 257 (Mo. Ct. App.
1983). "In assessing an officer's probable cause for making a
warrantless arrest, no less strict standards may be applied than
are applicable to a magistrate's determination that an arrest
warrant should issue." Washington v. Commonwealth, 219 Va. 857,
862, 252 S.E.2d 326, 329 (1979).
Officer Nowak did not have reason to believe that the
defendant's conduct would provoke a violent response from the
person or persons at whom such conduct was directed, which is a
requisite element of a violation of Newport News City Code
§ 28-11. The words uttered by the defendant, however offensive
or rude, do not establish disorderly conduct. Although Officer
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Nowak testified that the defendant "[threw] his arms about in the
air" and was "loud and boisterous," he made no threatening
remarks, uttered no words that would reasonably incite a breach
of the peace, or made no threatening movements toward the
officers. While the defendant's remarks lacked civility and were
impolite, loud, and persistent protestations about his treatment,
his act of throwing his arms in the air could in no reasonable
way cause or incite the officers to violence. There is simply no
evidence in the record to support a reasonable belief that the
defendant's conduct would cause a reasonable officer to respond
with physical force or violence or that the officers considered
the defendant's throwing his arms in the air to be an assault.
Consequently, Officer Nowak either did not know that the offense
of disorderly conduct includes the requirement that the
defendant's conduct must have a direct tendency to cause violence
or, if he did, he had no reasonable basis to believe that the
defendant's conduct had a direct tendency to incite violence.
Although a police officer, who makes a warrantless
misdemeanor arrest based upon mistakes of fact or law, may not be
subjected to civil liability for false imprisonment, provided
that the officer acted in "good faith and 'reasonable belief' in
the validity of the arrest," DeChene v. Smallwood, 226 Va. 475,
479, 311 S.E.2d 749, 751 (1984) (citation omitted), a warrantless
arrest that is not based upon probable cause is unconstitutional
and evidence seized as a result of an unconstitutional arrest is
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inadmissible, without regard to the officer's good faith and
reasonable belief that he was not factually or legally mistaken.
See Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 3
L.Ed.2d 327 (1959); cf. Jones, 18 Va. App. at 232-33, 443 S.E.2d
at 191 (holding that the police officer did not have probable
cause to arrest the accused for criminal trespass because the
officer did not have "a reasonable basis to conclude that [the
accused] was neither a resident nor a guest of a resident" of the
apartment complex).
In either case, on these facts a police officer would have
no reasonable basis to believe that the defendant was guilty of
disorderly conduct in violation of § 28-11 of the Newport News
City Code. Consequently, because the officers had no probable
cause to arrest the defendant, they had no other basis on which
to lawfully detain or search him. Although the defendant was
loud, profane, and uncivil, the officers had no basis to
conclude, on these facts, that they would be required to use
physical force to restrain the defendant in order to carry out
their duties. Cf. Keyes v. City of Virginia Beach, 16 Va. App.
198, 200, 428 S.E.2d 766, 768 (1993) (affirming the accused's
conviction for disorderly conduct where the police officer
lawfully stopped the accused for a traffic violation and
testified that based upon the accused's loud and uncooperative
behavior, he "felt as though [he] was going to have to fight to
subdue [the accused]").
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Because the officer had no probable cause to arrest Ford for
disorderly conduct, the search incident to that arrest and the
seizure of the knife from his pocket was a "fruit" of the illegal
arrest and should have been suppressed. Wong Sun v. United
States, 371 U.S. 471, 484-85, 83 S. Ct. 407, 9 L.Ed.2d 441
(1963). In view of the holding that the evidence was
insufficient to support a probable cause finding of disorderly
conduct, necessarily, without additional evidence, it is
insufficient to support the disorderly conduct conviction. Thus,
we reverse both convictions and dismiss the charges.
Reversed and dismissed.
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