COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Senior Judge Overton
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 3383-02-4 JUDGE ROBERT P. FRANK
JUNE 10, 2003
CHARLES EDWARD HOOKS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
briefs), for appellant.
Robert C. Whitestone (Whitestone, Brent,
Young & Merril, on brief), for appellee.
Charles Edward Hooks (appellee) was indicted for possession
of cocaine with the intent to distribute, in violation of Code
§ 18.2-248. Appellee filed a pretrial motion to suppress the
statements he made to the police, alleging the statements were
obtained after an illegal seizure. The trial court granted the
motion. The Commonwealth appeals, contending the trial court
erred in granting the motion. See Code § 19.2-398. For the
reasons stated, we affirm the trial court's ruling.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
Pursuant to Rule 5A:8, the following statement of facts was
filed in lieu of a transcript:
On March 21, 2002, officers of the Fairfax
County Police Department Vice Squad were
watching the defendant's home before
executing a search warrant on the home.
Police saw the defendant leave the house,
get into his vehicle, and drive away. At
8:10 p.m., several miles from his house,
Officer S. R. Wallace, at the direction of a
vice squad officer, stopped the defendant
for driving on a suspended license.
Defendant's license had been suspended by
the Department of Motor Vehicles in early
2002 for insurance monitoring.
Shortly after the defendant was stopped he
was issued a summons for driving on a
suspended license and for having an open
container in the vehicle. The defendant and
his vehicle were searched and no drugs or
weapons were found in defendant's vehicle or
on his person. Then, instead of being
released on the summonses, defendant was
placed in handcuffs in the back of a police
cruiser and transported to the Reston
District Station for questioning.
The search warrant here involved was
executed at defendant's home at 8:35 p.m.
At some time between 9:30 and 10:00 p.m. the
defendant made incriminating statements.
As justification for defendant's unlawful
seizure, Detective J. A. Williams at the
preliminary hearing testified ". . . the
only way legally that we could hold him
would be for investigative detention."
Additional reasons for the seizure were
given as "officer safety" and "exigent
circumstances."
There was no evidence that the police
officer who issued a summons to the
defendant for driving on [a] suspended
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[license] believed that the defendant would
not return to traffic court, nor was there
any evidence that the defendant had at any
time failed to appear in court. Moreover
there was no suggestion nor was there
evidence that the defendant was arrested
because the police had probable cause to
believe that the defendant committed prior
drug related offenses.
After argument and briefing, the trial court granted the
motion to suppress, finding the police "lacked probable cause and
any reasonable suspicion." The court noted:
After a summons has been issued to an
individual, absent other circumstances –-
none of which were present here –- he or she
should be free to go. The Fairfax County
Police lacked reasonable suspicion that
Hooks was engaged in any illegal activity.
Therefore, Hooks' [sic] detention was an
illegal seizure and any statements made by
Hooks while illegally detained must be
suppressed.
ANALYSIS
The Commonwealth contends appellee's Fourth Amendment rights
were not violated, arguing that an arrest which is unlawful under
Code § 19.2-74 does not necessarily equate with a violation of
appellee's constitutional rights. 1 Assuming this position is
correct, it misses the point of the trial court's ruling.
On appeal, this Court reviews the evidence, and the
inferences fairly deducible from that evidence, in the light most
favorable to the party prevailing below. Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
Although determinations of probable cause are reviewed de novo,
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Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27
(2000), where the trial court has granted a motion to suppress,
that decision "will not be disturbed unless it is plainly wrong
or without evidence to support it." Commonwealth v. Thomas, 23
Va. App. 598, 609, 478 S.E.2d 715, 720 (1996).
Appellee was served with two summonses. At that point, as
the trial court noted, all constitutional and statutory
requirements were satisfied, and the encounter should have ended
or continued voluntarily. See United States v. Pruitt, 174 F.3d
1215, 1219-20 (11th Cir. 1999), limited by United States v.
Purcell, 236 F.3d 1274 (2001). Instead, appellee was handcuffed
and taken to the police station. This seizure, after the
issuance of the summonses, created a new Fourth Amendment issue.
In Reittinger, for example, a driver was stopped for having
only one operable headlight on his van. 260 Va. at 234, 532
S.E.2d at 26. While the officer legitimately stopped the van,
after he decided against issuing a citation and told the driver
that he was free to go, a new Fourth Amendment issue arose. Id.
at 236-37, 532 S.E.2d at 27-28. Once an officer has concluded
his investigation of the original violation, new reasonable
suspicion or probable cause must develop to allow an officer to
continue holding an individual. See Thomas, 23 Va. App. at 613,
487 S.E.2d at 722 (noting the K-9 search unit arrived "before the
completion of the traffic stop" and police had additional bases
"to suspect criminal activity" beyond the reason for the initial
stop); Deer v. Commonwealth, 17 Va. App. 730, 736, 441 S.E.2d 33,
1
The Commonwealth does not argue that application of the
exclusionary rule to the statement was inappropriate if appellee
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37 (1994) ("[O]nce [the officer] had completed his investigation
and issued the citation, the continued detention of Deer and the
vehicle required additional justification to satisfy the
requirements of the Fourth Amendment.").
In Deer, this Court found a driver was illegally seized
under circumstances similar to those in the present case. The
officer issued a summons to Deer, concluding his investigation of
the traffic offense. Id. However, when Deer refused to allow a
search of his vehicle, the officer "effected a seizure by stating
that he would detain the vehicle for up to an hour to await the
arrival of a K-9 unit." Id. With nothing more than an inchoate
hunch, the officer seized Deer. Id.
As the trial court here explained, nothing during the
traffic stop provided Officer Wallace with additional reasonable
suspicion or probable cause. 2 The Commonwealth does not contend
that additional investigation into the traffic offense was
required or appropriate, but instead argues that the original
probable cause survived the issuance of the summonses. The
Commonwealth contends Deer is distinguishable because Officer
Wallace always intended to detain appellee, whereas the officer
in Deer initially intended to release Deer. Neither the facts
nor the analysis in Deer support such a distinction, which
was unconstitutionally seized.
2
The Commonwealth does not argue that any of the facts
surrounding the issuance and execution of the search warrant for
appellee's house provided the police with enough information to
seize appellee. The search warrant is not part of the record on
appeal.
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emphasized the conclusion of the initial detention with the
issuance of a citation. Id.
The Commonwealth also argues that Atwater v. City of Lago
Vista, 532 U.S. 318 (2001), controls. However, Atwater is
distinguishable on its facts. In Atwater, the defendant was
stopped for a minor traffic offense, punishable by a fine only.
Id. at 323. The police officer immediately arrested Atwater
under a Texas law that specifically authorized arrest for this
particular traffic offense, although the law also permitted the
issuance of a citation in lieu of arrest. Id. at 323-24. The
issue before the Supreme Court was whether the Fourth Amendment
limits a police officer's authority to arrest without a warrant
for minor criminal offenses. Id. at 326. The Supreme Court
concluded such an arrest is not a violation of the Fourth
Amendment. Id. at 354.
The Atwater Court was not confronted with a post-issuance of
summons detention. Atwater was not issued a citation and then
arrested. Therefore, the opinion does not address the
circumstances before this Court.
While Officer Wallace initially had probable cause to stop
appellee for a traffic violation, he concluded that detention
when he issued the summonses. Thus, he did not have reasonable
suspicion or probable cause to continue his seizure of appellee.
The seizure, therefore, violated the principles of the Fourth
Amendment, and the statement given while appellee was held
constituted "fruit of the poisonous tree." See Walls v.
Commonwealth, 2 Va. App. 639, 651, 347 S.E.2d 175, 182 (1986).
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We affirm the trial court's grant of the motion to suppress
and remand for further proceedings consistent with this opinion.
Affirmed and remanded.
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