COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
DAVID V. BOND
MEMORANDUM OPINION * BY
v. Record No. 1263-96-1 JUDGE JERE M. H. WILLIS, JR.
APRIL 1, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Lawrence A. Martin (Coyle & Martin, on
brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
David V. Bond was convicted in a bench trial of possession
of a controlled substance. On appeal, he contends that the trial
court erred in refusing to suppress evidence seized pursuant to
his unlawful arrest for disorderly conduct. We find that the
evidence is sufficient to support a finding that the officer had
probable cause to arrest Bond for disorderly conduct, and affirm
the judgment of the trial court.
In an appeal of a ruling on a motion to suppress, the
appellant has the burden to demonstrate that, viewing the
evidence in the light most favorable to the Commonwealth, the
trial court's decision constituted reversible error. Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). As
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
a general matter, determinations of reasonable suspicion and
probable cause are reviewed de novo; however, we review the trial
court's findings of historical fact only for clear error, and
impart due weight to inferences derived from those facts by
resident judges and local law enforcement officials. James v.
Commonwealth, 22 Va. App. 740, 743, 473 S.E.2d 90, 91 (1996)
(citing Ornelas v. United States, 116 S. Ct. 1657 (1996)).
On September 17, 1995, Frank Thompson drove Bond to his
apartment complex. As they approached the complex, they could
see a crowd of people and several police cars near Bond's
apartment. Thompson testified that Bond got out of the car, and
that someone approached Bond and told him that his son had been
involved in a fracas and had been assaulted.
Thompson testified that Bond became upset and moved toward
the crowd. As he did so, a police officer told him to "be
quiet." Bond began pacing back and forth, "stating his
displeasure in what had occurred with his son." Thompson
testified that Bond was a "pretty animated person" with a louder
than normal voice.
Officer Anthony Coleson testified that he received a radio
dispatch concerning a report of child abuse at the apartment
complex. When he arrived at the complex, he encountered a crowd
of approximately ten to fifteen people, including Bond who was
"very loud in an animated [sic] walking toward the apartments,
towards the crowd." Officer Coleson characterized Bond as being
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"extremely loud," and said "[s]ome people may describe it as
yelling."
Officer Coleson repeatedly told Bond to lower his voice and
to calm down. Each time Officer Coleson told Bond to keep his
voice down, Bond would continue yelling. Officer Coleson then
told Bond that he needed either to keep his voice down or to go
inside his apartment. Bond agreed to go inside, and began
walking toward his door. However, he continued yelling at an
individual later determined to be his son. Officer Coleson
arrested Bond for disorderly conduct. Pursuant to the arrest,
the police searched Bond and found heroin.
Hampton City Code § 24-12 provides, in pertinent part, that:
A person is guilty of disorderly conduct
. . . if, with the intent to cause public
inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, he:
(1) [W]hile in or on a public conveyance
or public place, engages in conduct having a
direct tendency to cause acts of violence by
the person or persons at whom, individually,
such conduct is directed; provided, however,
such conduct shall not be deemed to include
the utterance or display of any word or to
include conduct otherwise punishable under
other provisions of this chapter . . . .
Bond contends that his actions fell short of conduct having
a direct tendency to cause acts of violence by the person at whom
they were directed. Clearly, words alone are not enough to
support a conviction for disorderly conduct. The city ordinance
requires proof of conduct tending to precipitate violent
activity, directed toward an individual or identifiable group.
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Cf. Code § 18.2-415.
"The 'question as to whether a particular act is disorderly
conduct depends largely on the facts in the particular case, and
in the determination of such question not only the nature of the
particular act should be considered but also the time and place
of its occurrence as well as all the surrounding circumstances.'"
Keyes v. City of Virginia Beach, 16 Va. App. 198, 200, 428
S.E.2d 766, 767 (1993) (quoting Collins v. City of Norfolk, 186
Va. 1, 5, 41 S.E.2d 448, 450 (1947)).
We need not determine whether Bond's conduct did in fact
constitute disorderly conduct under the ordinance. Rather, we
review the evidence to determine whether the facts and
circumstances within Officer Coleson's knowledge at the time of
the warrantless arrest were sufficient to constitute probable
cause that the offense had been committed. See Ford v. City of
Newport News, 23 Va. App. 137, 143-44, 474 S.E.2d 848, 851
(1996).
The facts and circumstances known to Officer Coleson would
lead a reasonable person to conclude that Bond's actions,
directed to the crowd in general, and to his son in particular,
would tend to lead to violence. Cf. Ford, 23 Va. App. at 144,
474 S.E.2d at 851 (concluding that defendant's lack of civility
directed toward police officers could in no reasonable way cause
or incite the officers to violence). Officer Coleson arrived at
the apartment complex in response to a possible case of child
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abuse, a crime that inflames passions. Even with the windows
rolled up in his police cruiser, he immediately heard Bond
"yelling." A crowd of upset and turbulent people had assembled.
Officer Coleson testified that: "through my experience, when
you have a large crowd of individuals out there, people yelling,
there is always a potential of some type of violence." Despite
repeated requests by Officer Coleson to calm down, Bond failed to
comply and continued to yell at an individual only later
determined to be his son.
Bond's conduct and behavior, the presence of a large crowd
and the report of child abuse gave Officer Coleson probable cause
to arrest Bond. Because the after-discovered heroin was the
fruit of a lawful search incident to that arrest, the trial court
did not abuse its discretion in denying Bond's motion to suppress
the evidence.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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