COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia
SHAWN AUBREY JONES
MEMORANDUM OPINION * BY
v. Record No. 2756-97-2 JUDGE LARRY G. ELDER
NOVEMBER 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Charles L. McCormick, III, Judge
Buddy A. Ward, Public Defender (Joseph M.
Teefey, Jr., Assistant Public Defender;
Office of the Public Defender, on brief), for
appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Shawn Aubrey Jones (appellant) appeals from his bench trial
conviction for driving under the influence of alcohol in
violation of Code § 18.2-266(ii). On appeal, he contends that
the community caretaker exception to the warrant requirement did
not justify the stop of his vehicle and that the trial court,
therefore, erroneously denied his motion to suppress. The
Commonwealth contends that the community caretaker doctrine
justified the stop and that, even if it did not, the officer had
probable cause to detain appellant for speeding. For the reasons
that follow, we uphold the trial court's denial of appellant's
motion to suppress and affirm his conviction.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
FACTS
At about 9:30 p.m. on April 5, 1997, Officer Nelson Watson
observed a vehicle pass him on Main Street going in the opposite
direction. The driver, whom Watson recognized as appellant, "had
his left arm out the window waving and was hollering in
[Watson's] direction . . . as he passed [Watson]." Watson saw no
other vehicles or pedestrians in the area at that time. Watson
turned his vehicle around, pulled in behind appellant to follow
him and activated his lights in order to make a stop. Watson
testified that he executed the stop because of
concern . . . that [appellant] was asking for
assistance. Several times in my past career
I've had . . . the drivers [of vehicles] wave
me over, wave at me [when] they were either
heading to a problem where they wanted
assistance . . . or they needed assistance in
the vehicle[.] [A]t that time that was my
concern, that he needed assistance.
"As [Officer Watson] initiated the light," appellant's
vehicle "sped up to approximately 40 [miles per hour] in a posted
25 [mile-per-hour] zone" and made a right turn at the same speed.
Watson then radioed for back-up. After traveling "a good 500
yards" at that speed, appellant's vehicle was forced to slow down
because several people were standing in the road. After
proceeding past the pedestrians, appellant pulled over and
stopped.
In response to Officer Watson's inquiry, appellant said that
nothing was wrong. However, Officer Watson "detected the odor of
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alcohol at the vehicle window." He asked for appellant's
driver's license, but appellant said he did not have it with him.
Two to three hours earlier, Officer Watson had seen appellant
standing with a beer in his hand in a yard in which was parked
the car appellant was driving at the time of the stop. Due to
this fact, coupled with the odor of alcohol coming from
appellant's vehicle, Watson asked appellant to get out of the car
and questioned him regarding his alcohol consumption. Appellant
reported that he had drunk a six-pack of beer in the previous
one-and-one-half hours, finishing his last beer about thirty
minutes prior to the stop.
Watson administered several field sobriety tests, which
appellant did not pass satisfactorily, and Watson placed him
under arrest at 9:35 p.m. A breathalyzer administered at
10:14 p.m. registered a blood alcohol content of 0.14 grams per
210 liters of breath. Watson charged appellant for driving under
the influence. He did not charge him for speeding.
Appellant moved to suppress, contending that Watson lacked
objective facts providing reasonable suspicion of criminal
activity to support the stop and that stopping appellant under
the community caretaker doctrine to see if he needed assistance
was merely a pretext to investigate whether appellant was drunk.
If Watson had wanted to stop appellant under the community
caretaker doctrine, appellant argued, he should have followed
appellant without activating his lights in order to gather
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additional information showing that appellant needed assistance.
The Commonwealth's attorney responded that he was "not even
arguing a Terry stop in this, we are arguing our community
caretaker." The trial court ruled,
I don't necessarily believe this is a
pretextual stop. I'm not convinced that's
what the situation was. I think the officer
was attempting to render assistance because
he thought he was needed, and then he was
frustrated in doing so by the fact that
[appellant] sped up, and tried to get away
from him.
* * * * * * *
Well, I don't think this officer would
have ever stopped this man if he hadn't stuck
his arm out of the window and carried on like
that. . . . [V]iewing all of the
circumstances, I think the officer acted
reasonably . . . , so I'm going to deny the
motion.
The trial court then found appellant guilty of DUI but suspended
execution of the sentence pending the outcome of this appeal.
II.
ANALYSIS
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); Alexander v. Commonwealth, 19 Va. App.
671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the
evidence in the light most favorable to the prevailing party,
granting to it all reasonable inferences fairly deducible
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therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial
court's findings of historical fact unless 'plainly wrong' or
without evidence to support them[,] and we give due weight to the
inferences drawn from those facts by resident judges and local
law enforcement officers." McGee v. Commonwealth, 25 Va. App.
193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v.
United States, 517 U.S. 690, 699 (1996)). However, 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 Va. App. 394,
398, 477 S.E.2d 309, 311 (1996); see also Ornelas, 517 U.S. at
699.
Under these standards, we hold that the officer had probable
cause to stop appellant for speeding. Therefore, the trial court
did not err in denying appellant's motion to suppress and
convicting him for violating Code § 18.2-266(ii). Because we
hold the stop proper based on probable cause to believe that
appellant was speeding, we do not address the community caretaker
issue.
A police officer may conduct an investigatory stop of a
motor vehicle if he has at least "articulable and reasonable
suspicion" that the operator is unlicensed, the vehicle is
unregistered, or the vehicle or an occupant is otherwise subject
to seizure for violating the law. See Murphy v. Commonwealth, 9
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Va. App. 139, 143, 384 S.E.2d 125, 127 (1989) (citing Delaware v.
Prouse, 440 U.S. 648, 663 (1979)). Of course, where an officer
actually observes a driver violate the law, he has probable cause
to stop the driver to issue a traffic citation or take him into
custody. See May v. Commonwealth, 3 Va. App. 348, 354, 349
S.E.2d 428, 431 (1986).
The Fourth Amendment requires only that an objectively
reasonable basis exist for a stop. See, e.g., Whren v. United
States, 517 U.S. 806, 812-13 (1996). "'[T]hat the officer does
not have the state of mind which is hypothecated by the reasons
which provide the legal justification for the officer's action
does not invalidate the action taken as long as the
circumstances, viewed objectively, justify that action.'" Id. at
813 (quoting Scott v. United States, 436 U.S. 128, 138 (1978))
(emphasis added); see also Ohio v. Robinette, 519 U.S. 33, 38-39
(1996); Limonja v. Commonwealth, 8 Va. App. 532, 537-38, 383
S.E.2d 476, 479-80 (1989) (en banc).
"In order for a seizure to occur, an individual must be
under some physical restraint by an officer or have submitted to
the show of police authority." Thomas v. Commonwealth, 24 Va.
App. 49, 54, 480 S.E.2d 135, 137 (1997) (en banc) (citing
California v. Hodari D., 499 U.S. 621, 628 (1991)). A suspect is
not seized within the meaning of the Fourth Amendment if he is
fleeing from an officer attempting to apprehend him, and any
evidence obtained during that flight is not the product of a
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seizure. See Hodari D., 499 U.S. at 625-29 (upholding
admissibility of drugs suspect discarded while fleeing from
police because, even though police lacked reasonable suspicion
for stop prior to flight, they had not effected a seizure at time
suspect discarded drugs); see also Woodson v. Commonwealth, 245
Va. 401, 406, 429 S.E.2d 27, 29-30 (1993).
Here, Officer Watson was justified in stopping appellant
when he observed him speeding. Although Officer Watson activated
his flashing lights and tried to stop appellant before appellant
began speeding, appellant failed to comply with Officer Watson's
show of authority and, therefore, he was not seized until after
Watson observed him speeding. Therefore, Officer Watson had
probable cause for the seizure by the time appellant submitted to
Watson's show of authority. That Officer Watson did not rely on
appellant's speeding as the basis for his stop is irrelevant
under this analysis, for facts known to Officer Watson made the
stop of appellant for speeding objectively reasonable under the
Fourth Amendment.
It also matters not that the Commonwealth did not assert
probable cause to believe appellant was speeding as a basis for
Officer Watson's stop. Rule 5A:18 does not require an appellee
"to raise an issue at trial before it may be considered on appeal
where the issue is not offered to support reversal of a trial
court ruling." See, e.g., Driscoll v. Commonwealth, 14 Va. App.
449, 451-52, 417 S.E.2d 312, 313 (1992). Here, the trial court
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implicitly found that the officer's testimony was credible 1 and
expressly ruled that the officer "acted reasonably" under "all of
the circumstances." Regardless of whether the court relied on
the probable cause analysis as a basis for its denial of the
motion to suppress, it reached the proper result, and we uphold
that result on appeal. See, e.g., id. at 452-53, 417 S.E.2d at
313-14 (holding that appellate court may affirm judgment of trial
court when it has reached right result for wrong reason).
For these reasons, we affirm appellant's conviction.
Affirmed.
1
In ruling, the trial judge said, "I think the officer was
attempting to render assistance . . . , and then he was
frustrated in doing so by the fact that [appellant] sped up
. . . ."
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Benton, J., dissenting.
Appellate courts may apply the doctrine of "right result,
wrong reason" only in "proper case[s]." See Eason v. Eason, 204
Va. 347, 352, 131 S.E.2d 280, 283 (1963). This is not a proper
case for the rule. We have previously held, for example, that
the "right result for the wrong reason . . . rule . . . may not
be used if the correct reason for affirming the trial court was
not raised in any manner at trial." Driscoll v. Commonwealth, 14
Va. App. 449, 452, 417 S.E.2d 312, 313-14 (1992). See also
Eason, 204 Va. at 352, 131 S.E.2d at 283. Furthermore, this rule
may not be used "where, because the trial [judge] has . . .
confined [the] decision to a specific ground, further factual
resolution is needed before the right reason may be assigned to
support the trial [judge's] decision." Driscoll, 14 Va. App. at
452, 417 S.E.2d at 314. See also Sateren v. Montgomery Ward and
Co., 234 Va. 303, 305-06, 362 S.E.2d 324, 326 (1987).
At trial, the Commonwealth's attorney informed the trial
judge, "we are not even arguing a Terry stop in this, we are
arguing our community caretaker; the officer . . . [has] not
articulated that there may . . . [have been] criminal activity."
Relying solely upon the community caretaker argument advanced by
the Commonwealth, the trial judge found that "the officer was
attempting to render assistance because he thought he was
needed." The Commonwealth advanced no other theory to support
the officer's actions, and the trial judge made no findings or
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rulings that support any other theory.
Moreover, because of the Commonwealth's attorney's
concession that the officer had not articulated a suspicion of
criminal activity, the record clearly proves that neither the
issue of reasonable articulable suspicion nor the issue of
probable cause to support the stop "was ever brought to the
attention of the [trial judge], that [neither issue] was ever
argued before [the judge], or that [the judge] was ever called
upon, in any manner, to rule thereon." Eason, 204 Va. at 352,
131 S.E.2d at 283. Thus, I would hold that this is not a proper
case for the "right result for the wrong reason" rule.
In Barrett v. Commonwealth, 250 Va. 243, 462 S.E.2d 109
(1995), the Supreme Court addressed essentially the same issue
posed in this case, i.e., whether odd or unusual conduct will
support an investigative stop of a person who is not evidently
engaged in criminal conduct. Id. at 248, 462 S.E.2d at 112. In
Barrett, the trial judge found that the officer's conduct was
reasonable and that "'due to the unusual situation which [the
officer] was confronted with[, the officer] was required to
investigate [and that] it was natural for [the officer's]
curiosity to be aroused, since this was a situation that was not
seen very often.'" 250 Va. at 245, 462 S.E.2d at 111. However,
the Supreme Court held that finding insufficient because "'odd'
conduct, without more, did not give rise to 'a reasonable
suspicion, based on objective facts' that [the driver] needed
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police assistance." Id. at 248, 462 S.E.2d at 112. In the
absence of "'a reasonable suspicion, based on objective facts,
that the individual is involved in criminal activity,'" a driver
is free to drive without being ordered to stop. Id. at 247, 462
S.E.2d at 112 (quoting Leeth v. Commonwealth, 223 Va. 335, 340,
288 S.E.2d 475, 478 (1982) (emphasis added)).
Because the Commonwealth relied solely upon the community
caretaker doctrine, to the express exclusion of any other theory,
and because the trial judge based his ruling solely upon the
community caretaker doctrine, I would hold that the record fails
to support the trial judge's application of that doctrine in
refusing to suppress the evidence. For these reasons, I would
reverse the conviction and remand for a new trial.
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Shawn Aubrey Jones v. Commonwealth of Virginia
Combined Opinion