COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia
DARRYL LEE KNIGHT
MEMORANDUM OPINION * BY
v. Record No. 0029-00-1 JUDGE ROBERT P. FRANK
DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
Richard Carl Clark, Assistant Public Defender
(Patrick J. McKenna, Assistant Public
Defender, on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Darryl Lee Knight, appellant, was convicted in a bench trial,
of robbery in violation of Code § 18.2-58, conspiracy in violation
of Code § 18.2-22, and use of a firearm in the commission of a
felony in violation of Code § 18.2-53.1. On appeal, he contends
the trial court erred in denying his motion to suppress. For the
reasons stated herein, we reverse the judgment of the trial court.
I. BACKGROUND
At a hearing on appellant's motion to suppress, Officer James
Marafka testified that during the early evening hours of February
27, 1999, he received a radio message that a robbery had just
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
occurred in an apartment complex near Birdneck Road and Route 44,
approximately one-quarter of a mile from his location. Marafka
was told that four subjects were involved in the robbery. All of
the suspects were described as young black males wearing dark
clothes.
Marafka said that as he was headed toward the scene of the
robbery, another officer radioed that he had seen suspects running
south from the scene to an area that Marafka had just passed.
Marafka said he then made a "U-turn" and drove to that area,
setting up a "perimeter."
At that point, Marafka said he saw someone running away from
him, toward the back of a house. Marafka then showed Officer
Carila, a K-9 officer, the direction in which the suspect started
running. Carila and his dog began to track in the direction the
suspect ran.
Marafka testified he followed Carila and then received a
radio message from Officer Garrett "that he had a subject running
across the street and had him on Birdneck Road, which was the
direction we were heading."
When Marafka and Carila arrived at Birdneck Road, Officer
Garrett was detaining a black male, who was later determined to be
appellant.
Marafka testified that only thirty seconds elapsed from the
time he saw the person running toward the back of the house to the
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time when he received the message that appellant had been stopped.
No one else was in the area.
Marafka said that appellant matched the general description
of the robbery suspects. He was wearing dark clothing and a black
sweater or sweatshirt was next to him. Marafka said appellant was
sweating or "winded." On cross-examination, Marafka admitted he
could not tell if the person he saw running toward the back of the
house was appellant. Marafka stated he handcuffed appellant and
placed him in the back of a police car because appellant matched
the description broadcast earlier. At that point, Marafka stated
appellant was "investigatively detained" and was not free to
leave.
Officer Carila testified he received information over the
radio that a robbery was in progress. Before he arrived, however,
another police unit radioed him that several subjects were running
in the area of the school at Route 44 and Birdneck Road. He
testified that, as he came upon the area, he saw a suspect
running. He then deployed his dog. The dog, however, failed to
pick up a track, and the suspect ran between two houses toward
Birdneck Road. Officer Marafka told Carila he had seen the
suspect and showed Carila where he last saw the man. Carila and
the dog began tracking at that point.
Carila testified that when he reached the front of the
houses, he saw a black male detained by another officer and a
citizen in the median of Birdneck Road. Carila stopped the dog
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from tracking at Birdneck Road because "it wasn't necessary for me
to endanger my dog in crossing the street at that point with
traffic." However, appellant was in the direct line of the dog's
track.
Detective Annette Pennypacker testified she took the victim
of the robbery, Cynthia Sorensen, to the location where appellant
was detained to give Sorensen the opportunity to identify
appellant. However, Sorensen was unable to identify appellant as
one of the men who robbed her. Pennypacker testified, "She said
she couldn't tell for sure." After speaking to another suspect,
Pennypacker ultimately directed the officers to take appellant to
the detective bureau "for further interview."
Officer Marafka testified he transported appellant to the
detective bureau. When asked, on cross-examination, what items
were taken from appellant, he stated, "[T]hat would have been done
at headquarters."
At the detective bureau, appellant was advised of his Miranda
rights and was interrogated. Appellant, according to Pennypacker,
then implicated himself and others in the robbery.
In his suppression argument at trial, appellant conceded his
initial detention by the police was proper. Yet, he contended the
police had no probable cause to "arrest" him when he was taken
into custody, handcuffed, and placed in the rear of the police
vehicle. He further contended that, when the victim failed to
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identify him as the perpetrator of the robbery, the police were
obligated to release him from custody.
The trial court found there was probable cause to arrest,
denied the motion to suppress, accepted appellant's conditional
plea of guilty, and found appellant guilty of robbery, conspiracy,
and use of a firearm.
II. ANALYSIS
On appeal, appellant argues the probable cause issue raised
in the trial court and also contends there was no "reasonable
suspicion" to permit the initial stop. We will not address the
validity of the initial stop since appellant conceded at trial
that the initial detention, based on the "be on the lookout" was
proper. Appellant is bound by that concession and cannot raise
the issue. Timbers v. Commonwealth, 28 Va. App. 187, 194, 503
S.E.2d 233, 236 (1998); Rule 5A:18.
At a hearing on a defendant's motion to
suppress, the Commonwealth has the burden of
proving that a warrantless search or seizure
did not violate the defendant's Fourth
Amendment rights. See Simmons v.
Commonwealth, 238 Va. 200, 204, 380 S.E.2d
656, 659 (1989). On appeal, we view the
evidence in the light most favorable to the
prevailing party, granting to it all
reasonable inferences fairly deducible
therefrom. See Commonwealth v. Grimstead,
12 Va. App. 1066, 1067, 407 S.E.2d 47, 48
(1991); see also Ornelas v. United States,
517 U.S. 690, 699, 116 S. Ct. 1657, 1659,
134 L.Ed.2d 911 (1996). We review de novo
the trial court's application of defined
legal standards such as probable cause and
reasonable suspicion to the particular facts
of the case. See Shears v. Commonwealth, 23
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Va. App. 394, 398, 477 S.E.2d 309, 311
(1996); see also Ornelas, 517 U.S. at 699,
116 S. Ct. at 1659.
Reel v. Commonwealth, 31 Va. App. 262, 265, 522 S.E.2d 881, 882
(2000).
Police-citizen confrontations generally
fall into one of three categories. Payne v.
Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d
869, 869-70 (1992); Iglesias v.
Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d
170, 173 (1988). First, there are
consensual encounters which do not implicate
the Fourth Amendment. Iglesias, 7 Va. App.
at 99, 372 S.E.2d at 173. Next, there are
brief investigatory stops, commonly referred
to as "Terry" stops, which must be based
upon reasonable, articulable suspicion that
criminal activity is or may be afoot.
United States v. Sokolow, 490 U.S. 1, 7, 109
S. Ct. 1581, 1585, 104 L.Ed.2d 1 (1939).
Finally, there are "highly intrusive,
full-scale arrests" or searches which must
be based upon probable cause to believe that
a crime has been committed by the suspect.
Id.; see also Wechsler v. Commonwealth, 20
Va. App. 162, 169, 455 S.E.2d 744, 746-47
(1995).
McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261
(1997) (en banc).
"'Whether a warrantless arrest was
constitutionally valid depends upon whether,
at the moment the arrest was made, the
officers had probable cause to make it.'"
Jefferson v. Commonwealth, 27 Va. App. 1,
12, 497 S.E.2d 474, 479 (1998) (citations
omitted). If so, such "arrest of a
suspect . . . is a reasonable intrusion
under the Fourth Amendment" and, "that
intrusion being lawful, a search incident to
the arrest requires no additional
justification." United States v. Robinson,
414 U.S. 218, 235, 94 S. Ct. 467, 38 L.Ed.2d
427 (1973). Conversely, however, "a
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warrantless arrest that is not based upon
probable cause is unconstitutional and
evidence seized as a result of an
unconstitutional arrest is inadmissible,
without regard to the officer's good faith
and reasonable belief that he was not
factually or legally mistaken." Ford v.
City of Newport News, 23 Va. App. 137, 145,
474 S.E.2d 848, 852 (1996).
"'[P]robable cause is measured against
an objective standard.'" Taylor v.
Commonwealth, 10 Va. App. 260, 266, 391
S.E.2d 592, 595-96 (1990) (citations
omitted). It "'exists where "the facts and
circumstances within the arresting officers'
knowledge and of which they had reasonably
trustworthy information are sufficient in
themselves to warrant a man of reasonable
caution in the belief that" an offense has
been or is being committed.'" Jefferson, 27
Va. App. at 12, 497 S.E.2d at 479 (citation
omitted). "'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.'" Ford, 23 Va. App.
at 144, 474 S.E.2d at 851 (citation
omitted).
Golden v. Commonwealth, 30 Va. App. 618, 622-23, 519 S.E.2d 378,
379-80 (1999). "The Commonwealth must show, based on a totality
of circumstances, 'a probability or substantial chance of
criminal activity' to establish probable cause." Yancey v.
Commonwealth, 30 Va. App. 510, 516, 518 S.E.2d 325, 328 (1999)
(quoting Ford, 23 Va. App. at 143-44, 474 S.E.2d at 851).
"[I]f the police have probable cause to
effect an arrest, a limited search may be
justified even in the absence of a formal
arrest." Poindexter v. Commonwealth, 16 Va.
App. 730, 733-34, 432 S.E.2d 527, 529 (1993)
(citing Cupp v. Murphy, 412 U.S. 291,
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295-96, 93 S. Ct. 2000, 2003-04, 36 L.Ed.2d
900 (1973)) (footnote omitted). "So long as
probable cause to arrest exists at the time
of the search . . . it is unimportant that
the search preceded the formal arrest if the
arrest 'followed quickly on the heels of the
challenged search.'" Id. at 733, 432 S.E.2d
at 529 (quoting Carter v. Commonwealth, 9
Va. App. 310, 312, 387 S.E.2d 505, 506-07
(1990)) (additional citation omitted).
Wallace v. Commonwealth, 32 Va. App. 497, 505, 528 S.E.2d 739,
742-43 (2000). "If the officer lacked probable cause to arrest,
however, any evidence seized pursuant to the arrest will be
excluded from trial." Clarke v. Commonwealth, 32 Va. App. 286,
294, 527 S.E.2d 484, 488 (2000) (citing Lugar v. Commonwealth,
214 Va. 609, 611, 202 S.E.2d 894, 897 (1974)).
In this case, the initial detention was valid through, and
including, Sorenson's attempt to identify appellant based on the
"be on the lookout" that was broadcast on the police radios. 1
However, we find the initial detention never ripened into the
probable cause necessary for the police to involuntarily
transport appellant to the detective bureau. See Dunaway v. New
York, 442 U.S. 200, 206-07 (1979) (holding the involuntary
transportation of Dunaway to the police station constituted a
seizure within the meaning of the Fourth Amendment and rejecting
the state's argument that, although the police lacked probable
cause, the seizure was permissible because the police had "a
1
We do not address whether Sorenson's inability to identify
appellant terminated the reasonable suspicion.
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'reasonable suspicion' that [Dunaway] possessed 'intimate
knowledge about a serious and unsolved crime'"). Detective
Pennypacker testified she directed that appellant be taken to
the detective bureau for "further interview" after she spoke to
another suspect. However, she did not testify as to what the
other suspect told her with regard to appellant. The police
based their probable cause conclusion on appellant's match with
the description broadcast in the "be on the lookout," Sorenson's
statement that she could not tell for sure whether he was one of
the men who committed the robbery, and some unknown statement
made to Detective Pennypacker by another suspect. We find that,
on the record before us, the facts and circumstances within the
officers' knowledge were not sufficient to warrant the belief
that appellant had committed the robbery and, thus, the officers
did not have probable cause to arrest appellant. We, therefore,
hold that the incriminating statements made by appellant at the
detective bureau and the items obtained in the search of
appellant's person at the detective bureau should have been
suppressed.
For these reasons, we reverse the convictions and remand
for further proceedings if the Commonwealth be so advised.
Reversed and remanded.
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