COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
GRELLAN J. HARTY
MEMORANDUM OPINION * BY
v. Record No. 0979-96-3 JUDGE JOHANNA L. FITZPATRICK
APRIL 29, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
Thomas C. Spencer (Spencer & Filson, P.C., on
brief), for appellant.
Daniel J. Monroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Grellan J. Harty (appellant) appeals his conviction of
driving while under the influence of alcohol in violation of Code
§ 18.2-266. He contends that, because the Commonwealth's
evidence was obtained by unlawfully detaining appellant and
violating his Fourth Amendment rights, the trial court erred in
denying his motion to suppress. For the reasons that follow, we
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affirm the judgment of the trial court.
At approximately 11:30 p.m. on November 28, 1995, Officer
Ferguson (Ferguson) of the Rockbridge County Sheriff's Department
was travelling west on U.S. Route 39 in Rockbridge County. It
was raining heavily, and he noticed appellant walking down the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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The record on appeal consisted of a statement of facts.
road without an umbrella or raincoat. A short distance away,
Ferguson saw "a vehicle on the right hand side of the road [that]
had run into a bank." As he passed the vehicle, he shined a
spotlight on it, but saw no one in the car. He turned his car
around, approached appellant, and told him to get into the car.
Ferguson testified at trial that he told appellant to get into
his car to offer him shelter from the rain. Appellant testified
that he "felt ordered to get into the car and was not free to
leave."
Once appellant was in the car, Ferguson asked him whether he
had been driving the car, and appellant responded affirmatively.
Appellant told the officer that he had been driven off the road
by a truck. At that point in the conversation, Ferguson detected
the odor of alcohol. Appellant described the errant truck, and
pursuant to department policy, Ferguson radioed for a trooper to
investigate the accident. Appellant told Ferguson that "the last
alcohol he had consumed had been more than an hour previously."
Virginia State Trooper Noe (Noe) arrived at the scene, and after
Ferguson relayed the events, took over the investigation.
Appellant conveyed a similar story to Noe, and told him that he
"had consumed about four beers" and that he "had had his last
beer around 10:00 p.m."
Appellant moved to suppress the evidence obtained by the
Commonwealth on the grounds that it had been obtained as the
result of an illegal stop and seizure in violation of his Fourth
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Amendment rights. The trial court denied the motion and on April
22, 1996, found him guilty of driving under the influence.
I. REASONABLE ARTICULABLE SUSPICION
Appellant contends that there was no basis for Ferguson to
conduct an investigative stop and consequently, his detention was
a seizure in violation of his Fourth Amendment rights. Thus, he
argues, any evidence obtained as a result thereof should have
been suppressed by the trial court.
On appeal, appellant has the burden to demonstrate that the
trial court's decision in overruling the motion to suppress was
plainly wrong and reversible error. See Fore v. Commonwealth,
220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S.
1017 (1980); Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437
S.E.2d 232, 233 (1993). All credible evidence favorable to the
Commonwealth, including all fair inferences to be drawn
therefrom, is to be regarded as true. Wright v. Commonwealth,
196 Va. 132, 137, 82 S.E.2d 603, 606 (1954).
"'[A] police officer may in appropriate circumstances and in
an appropriate manner approach a person for purposes of
investigating possible criminal behavior even though there is no
probable cause to make an arrest.'" Williams v. Commonwealth, 4
Va. App. 53, 64, 354 S.E.2d 79, 85 (1987) (quoting Terry v. Ohio,
392 U.S. 1, 22 (1968)). "'[I]f there are articulable facts
supporting a reasonable suspicion that a person has committed a
criminal offense, that person may be stopped in order to identify
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him, to question him briefly, or to detain him briefly while
attempting to obtain additional information.'" Id. (quoting
Hayes v. Florida, 470 U.S. 811, 816 (1985)). In evaluating
whether an investigative detention is unreasonable, ordinary
human experience must govern over rigid criteria, and the
totality of the circumstances must be considered. See Limonja v.
Commonwealth, 8 Va. App. 532, 542, 383 S.E.2d 476, 482 (1989) (en
banc), cert. denied, 495 U.S. 905 (1990).
In the instant case, Ferguson clearly had reasonable
articulable suspicion that appellant had been involved in the
accident at the time of the detention. The record established
that Ferguson observed a man walking, on a rainy night, without a
coat or umbrella, away from a car that had been driven off the
road and into an embankment. No other persons were near the
scene of the accident. Based on the totality of these
observations, Ferguson reasonably concluded that appellant was
involved in the accident. Credible evidence supports the
inferences that Ferguson stopped appellant to determine the cause
of the accident, whether anyone was hurt, whether damage was
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sustained, and whether alcohol was involved.
II. NON-CUSTODIAL INTERROGATION
Appellant next argues that he was not given his Miranda
2
Appellant's reliance on Barrett v. Commonwealth, 250 Va.
243, 462 S.E.2d 109 (1995), is misplaced. The community
caretaker doctrine is inapplicable in the instant case because,
as stated above, Ferguson possessed reasonable articulable
suspicion and made a valid investigative detention of appellant.
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warnings prior to being questioned by the police. See Miranda v.
Arizona, 384 U.S. 436 (1966). However, this objection is not
noted anywhere in the statement of facts. "No ruling of the
trial court . . . will be considered as a basis for reversal
unless the objection was stated together with the grounds
therefor at the time of the ruling, except for good cause shown
or to enable the Court of Appeals to attain the ends of justice."
Rule 5A:18. We will not consider an argument on appeal that was
not presented to the trial court. See Jacques v. Commonwealth,
12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule
5A:18). Moreover, the record does not reflect any reason to
invoke the good cause or ends of justice exceptions to Rule
5A:18.
Accordingly, we hold that the trial court properly overruled
appellant's motion to suppress, and we affirm the trial court's
judgment.
Affirmed.
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