COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued by Teleconference
RUTH BETTIE CALLOWAY
MEMORANDUM OPINION * BY
v. Record No. 0805-96-3 JUDGE LARRY G. ELDER
APRIL 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
Thomas S. Leebrick (Mosby & Leebrick, on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Ruth Bettie Calloway (appellant) appeals her conviction of
driving under the influence of alcohol, a second offense, in
violation of Code § 18.2-266. She contends that the trial court
erroneously denied her motion to suppress. She argues that the
trial court erred when it concluded that the investigating
officer had a reasonable articulable suspicion to stop her
vehicle and to subsequently investigate her for driving under the
influence of alcohol. She also argues that the trial court erred
when it concluded that the investigating officer had probable
cause to arrest her for driving under the influence of alcohol.
Finally, she contends that because the evidence of her breath
test should have been suppressed, the remaining evidence was
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
insufficient to support her conviction. For the reasons that
follow, we affirm.
I.
FACTS
At 2:49 a.m. on July 8, 1995, Deputy Tetterton was informed
by a dispatcher of a disturbance at the "last brick house" on
Randolph Lane. Two minutes later he arrived at Randolph Lane and
saw a car driven by appellant. Deputy Tetterton proceeded to
stop appellant's car and arrest her for driving under the
influence of alcohol. Appellant later took a breath test that
indicated that her breath alcohol content exceeded the legal
limit.
Appellant was arrested and charged with second offense
driving under the influence of alcohol. Appellant moved to
suppress the results of her breath test on Fourth Amendment
grounds, and the trial court overruled her motion. At the
conclusion of the evidence, appellant renewed her Fourth
Amendment arguments in a motion to strike the Commonwealth's
evidence. The trial court overruled this motion and convicted
appellant of second offense driving under the influence of
alcohol.
II.
THE INITIAL STOP OF APPELLANT'S CAR
Appellant contends that Deputy Tetterton's initial stop of
her car was unlawful because he lacked a reasonable, articulable
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suspicion that she was involved in criminal activity. We
disagree.
Upon appeal from a trial court's denial of a motion to
suppress, we must review 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); Reynolds v.
Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 663 (1990).
Determinations of reasonable suspicion and probable cause require
de novo review on appeal. Ornelas v. United States, U.S.
___, , 116 S. Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).
However, a trial court's "findings of historical fact" should be
reviewed only for "clear error." Id.
"In order to justify an investigatory stop of a vehicle, the
officer must have some reasonable, articulable suspicion that the
vehicle or its occupants are involved in, or have recently been
involved in, some form of criminal activity." Logan v.
Commonwealth, 19 Va. App. 437, 441, 452 S.E.2d 364, 367 (1994)
(citing Murphy v. Commonwealth, 9 Va. App. 139, 143-44, 384
S.E.2d 125, 127 (1989)). "In determining whether an 'articulable
and reasonable suspicion' justifying an investigatory stop of a
vehicle exists, courts must consider 'the totality of the
circumstances -- the whole picture.'" Murphy, 9 Va. App. at 144,
384 S.E.2d at 128 (quoting United States v. Sokolow, 490 U.S. 1,
8, 109 S. Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)).
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We hold that Deputy Tetterton had a reasonable articulable
suspicion that appellant was involved in criminal activity when
he initially stopped her car. The record established that Deputy
Tetterton received a report from a police dispatcher that an
African-American woman was "yelling, screaming, and knocking" on
the front door of a residence on Randolph Lane in a manner that
was unwelcome and upsetting to one of the occupants of the house.
The dispatcher also told him that the person causing the
disturbance drove a "small" car that was parked in the driveway
to the house, which was the last brick house on the street.
Approximately two minutes later, Deputy Tetterton arrived at
Randolph Lane and saw a Ford Tempo backing out from one of the
last two driveways on the street. When the car approached Deputy
Tetterton, he saw that it was driven by an African-American
female. Based on these observations, he decided to stop the
vehicle and investigate.
The factual scenario reported by the dispatcher provided an
objective basis for the deputy to suspect that the person who
caused the disturbance at the house on Randolph Lane was involved
in some form of criminal activity. Although Deputy Tetterton did
not know the exact nature of the "problem" at the residence, the
fact that the person at the front door was causing a disturbance
at an unusually early hour and that this disturbance provoked an
occupant of the house to call the police provided an objective
basis for the deputy to suspect that criminal activity was afoot.
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In addition, considering the dearth of activity on this small,
residential street in the predawn hours of the morning, and
Deputy Tetterton's quick arrival at the scene, it was reasonable
for him to conclude that appellant was the person who caused the
disturbance at the house on Randolph Lane. The deputy saw
appellant's car backing out from one of the last driveways on the
street two minutes after learning of the disturbance, and
appellant matched the police dispatcher's description of the
person who purportedly caused the disturbance. 1
III.
INVESTIGATION OF APPELLANT FOR DRIVING UNDER THE INFLUENCE
We hold that Deputy Tetterton had a reasonable articulable
suspicion that appellant was driving under the influence of
alcohol that justified his further detention of her to perform
field sobriety tests. The record establishes that after Deputy
Tetterton stopped appellant's car, he approached the driver's
side window to ask appellant a few questions. When he arrived at
the driver's side window, Deputy Tetterton detected the odor of
alcohol on appellant's person. After asking appellant if she had
1
We disagree with the trial court's conclusion that Deputy
Tetterton's stop was justified under the "community caretaker"
exception to the Fourth Amendment's prohibition of warrantless
searches and seizures. The record does not establish that Deputy
Tetterton had a reasonable articulable suspicion that appellant
was either in distress or in need of assistance at the time he
stopped her car. See Commonwealth v. Waters, 20 Va. App. 285,
288-89, 456 S.E.2d 527, 529 (1995). However, "[a]n appellate
court may affirm the judgment of a trial court when it has
reached the right result for the wrong reason." Driscoll v.
Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313 (1992).
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been drinking, appellant admitted that she had consumed three
beers. As discussed previously, Deputy Tetterton reasonably
suspected that appellant had engaged in the unusual behavior of
"yelling, screaming, and knocking" on the door of a nearby
residence in the predawn hours of the morning. The deputy then
asked appellant to step out of the car to perform field sobriety
tests. Based on these circumstances, Deputy Tetterton had a
reasonable articulable suspicion that appellant was operating her
vehicle while intoxicated.
IV.
PROBABLE CAUSE TO ARREST APPELLANT
We hold that Deputy Tetterton had probable cause to arrest
appellant for driving under the influence of alcohol.
"'[P]robable cause exists when the facts and circumstances within
the officer's knowledge, and of which he has reasonably
trustworthy information, alone are sufficient to warrant a person
of reasonable caution to believe that an offense has been or is
being committed.'" Jones v. Commonwealth, 18 Va. App. 229, 231,
443 S.E.2d 189, 190 (1994) (quoting Taylor v. Commonwealth, 222
Va. 816, 820, 284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S.
906, 102 S. Ct. 1753, 72 L.Ed.2d 163 (1982)). After Deputy
Tetterton stopped the car driven by appellant on Randolph Lane,
he noticed the odor of alcohol on appellant's person, the
"glassy, bloodshot" appearance of her eyes, her slow and slurred
speech, and her "unsteady and wobbly" performance of the field
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sobriety tests. Based on these facts, it was reasonable for the
deputy to believe that appellant had been driving her car while
under the influence of alcohol.
Because the trial court correctly overruled appellant's
motion to suppress her breath test, the evidence at trial was
sufficient to support her conviction.
For the foregoing reasons, we affirm the conviction of
driving under the influence of alcohol, a second offense, in
violation of Code § 18.2-266.
Affirmed.
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