COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys
ANTHONY RAY STUBBS
MEMORANDUM OPINION * BY
v. Record No. 2368-00-1 JUDGE ROBERT J. HUMPHREYS
OCTOBER 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
(Janice G. Murphy, on briefs), for appellant.
Appellant submitting on briefs.
(Mark L. Earley, Attorney General; Steven A.
Witmer, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Anthony Ray Stubbs appeals his conviction, after a bench
trial, for possession of heroin with intent to distribute.
Stubbs argues that the trial court erred in denying his motion
to suppress evidence against him, which he alleges was obtained
in violation of his Fourth Amendment rights.
At 3:10 p.m. on March 15, 2000, Newport News Detective
Darlene Best received a telephone call from a known confidential
informant. Best knew the informant from arresting him/her on a
prior occasion for a felony charge, and from speaking to the
individual about illegal narcotics activity in the city, as well
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
as about known drug dealers and users in the area. Best knew
the name of the informant, as well as the informant's address.
However, this was the first occasion on which the informant had
worked with the police department in this capacity. The
informant was paid for the information provided.
The informant told Best that Stubbs was in possession of
approximately two bundles of heroin and that he could be found
walking back and forth between 23rd and 28th Streets on Chestnut
Avenue. Best, a member of the Vice Unit for five years, knew
Stubbs and knew him to be involved with heroin distribution.
Best also knew the area of Chestnut Avenue and 23rd Street to be
one of the city's largest open-air drug markets.
Detective Best and Detective D.E. Flythe drove to Chestnut
Avenue in an unmarked vehicle. Both detectives were in plain
clothes, although they wore raid vests displaying the word
"Police," and their badges.
Best and Flythe immediately observed Stubbs walking in the
street at the 1100 block of 22nd Street. When they first
approached Stubbs in their vehicle, he was walking toward them.
Once he noticed the vehicle, however, he began to pick up his
pace to a "slight jog." Detective Best stopped the vehicle.
Flythe got out and said, "Police, Mr. Stubbs, I need to talk to
you." At that point, Stubbs began to sprint away from the
vehicle. Detective Best put the vehicle in reverse to follow
Stubbs, and Flythe followed on foot. While running after
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Stubbs, Detective Flythe's gun, which had previously been
holstered, fell to the ground.
Both detectives observed Stubbs make a throwing motion away
from his body. Flythe then tackled Stubbs, placed him in
custody, and read him his Miranda rights. The detectives
recovered twenty-two bags of heroin from the vicinity where they
observed Stubbs make the throwing motion.
At the police station, Stubbs told Sergeant P.B. Swartz
that he did not know how many bags of heroin he had, but that he
knew it was more than a bundle (ten bags of heroin). When asked
by Sergeant Swartz if he used heroin, Stubbs replied, "No."
Prior to trial, Stubbs moved to suppress the evidence
against him, arguing that there was no "probable cause to have
stopped him." After hearing evidence, the trial court denied
the motion. Stubbs was convicted of possession of heroin with
intent to distribute and sentenced to 25 years in prison, with
15 years suspended.
Although we are bound to review de novo the ultimate
questions of reasonable suspicion and probable cause, factual
findings are binding on appeal unless plainly wrong. See McGee
v. Commonwealth, 25 Va. App. 193, 198 n.1, 487 S.E.2d 259, 261
n.1 (1997) (en banc). Further, on appeal, the burden is upon
the appellant to show that the denial of the motion to suppress
constitutes reversible error. See Fore v. Commonwealth, 220 Va.
1007, 1010, 265 S.E.2d 729, 731 (1980).
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Stubbs argues that Detectives Best and Flythe lacked
reasonable suspicion to stop him, as well as probable cause to
arrest him, because they failed to adequately investigate and
determine the reliability of the information provided by the new
informant prior to seizing him. Stubbs also contends that the
detectives acted in an "aggressive, provocative manner . . .
designed to instigate his flight, and thereby to provide the
detectives with [reasonable suspicion] to render their otherwise
unlawful stop[,] lawful . . . ." We disagree. The issue here
is not the degree of police suspicion provided by the informant,
but the reasonableness of suspicion held by the detectives at
the time Stubbs was actually seized.
Stubbs correctly states the premise that "[a] person has
been 'seized' within the meaning of the Fourth Amendment only
if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave." Woodson v. Commonwealth, 245 Va. 401, 405, 429 S.E.2d
27, 29 (1993) (quoting United States v. Mendenhall, 446 U.S.
544, 554 (1980)). However, "[i]n seeking to rely upon that test
here, [Stubbs] fails to read it carefully. It says that a
person has been seized 'only if,' not that he has been seized
'whenever'; it states a necessary, but not a sufficient,
condition for seizure — or, more precisely, for seizure effected
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through a 'show of authority.'" California v. Hodari D., 499
U.S. 621, 628 (1991) (quoting Mendenhall, 446 U.S. at 554).
Indeed,
the word "seizure" readily bears the meaning
of a laying on of hands or application of
physical force to restrain movement, even
when it is ultimately unsuccessful. ("She
seized the purse-snatcher, but he broke out
of her grasp.") It does not remotely apply,
however, to the prospect of a policeman
yelling 'Stop, in the name of the law!' at a
fleeing form that continues to flee. That
is no seizure.
Id. at 626. "An arrest requires either physical force . . . or,
where that is absent, submission to the assertion of authority."
Id.; see also Weathers v. Commonwealth, 32 Va. App. 652, 658,
529 S.E.2d 847, 850 (2000). Accordingly, because Stubbs did not
submit to Flythe's command and/or "show of authority," and
instead, ran, Stubbs was not seized when Flythe ordered him to
stop.
The ramifications of this are three-fold. First, when
Stubbs discarded the heroin during his flight and prior to his
seizure, he effectively abandoned it and any Fourth Amendment
interest he might have had in it, making the drugs admissible in
the proceeding against him. See Smith v. Commonwealth, 12 Va.
App. 1100, 1104, 407 S.E.2d 49, 52 (1991) ("Contraband abandoned
during flight is admissible into evidence if an accused has not
been previously seized."). Furthermore, when Stubbs took
flight, he provided the detectives with the requisite reasonable
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suspicion of criminal activity that justified his ultimate
seizure for investigative purposes. See Illinois v. Wardlow,
528 U.S. 119, 124 (2000) (holding a subject's presence in a high
crime area and subsequent, unexplained flight from police
officer, provided reasonable suspicion to justify a brief
investigatory stop of the subject). Finally, once the
detectives discovered the abandoned heroin, they had probable
cause to arrest him and take his statement. See Beck v. Ohio,
379 U.S. 89, 91 (1964) (holding the standard for arrest is
probable cause sufficient to warrant a prudent man in believing
that a suspect had or was committing an offense).
We do not address Stubbs' argument on appeal that the
detectives provoked his flight and abandonment of the drugs, as
the record demonstrates Stubbs failed to raise this argument
before the trial court. See Rule 5A:18. Accordingly, we affirm
the judgment below.
Affirmed.
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