VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 18th day of April, 2023.
Arun Rashid Turay, Appellant,
against Record No. 0868-21-3
Circuit Court Nos. CR20000396-00 through CR20000398-00 and
CR20000400-00
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On April 3, 2023 came the appellee, by the Attorney General of Virginia, and filed a petition
requesting that the Court set aside the judgment rendered herein on March 21, 2023, and grant a rehearing en
banc on the issue(s) raised in the petition.
On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,
the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this
Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.
The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant
shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously
rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and
served on opposing counsel.1
A Copy,
Teste:
A. John Vollino, Clerk
original order signed by a deputy clerk of the
By: Court of Appeals of Virginia at the direction
of the Court
Deputy Clerk
1
The guidelines for filing electronic briefs and appendices can be found at
www.courts.state.va.us/online/vaces/resources/guidelines.pdf.
COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Chaney, Callins and Senior Judge Petty
Argued by videoconference
ARUN RASHID TURAY
MEMORANDUM OPINION* BY
v. Record No. 0868-21-3 JUDGE VERNIDA R. CHANEY
MARCH 21, 2023
COMMONWEALTH OF VIRGINIA
UPON A REHEARING
FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
Paul A. Dryer, Judge
Jessica N. Sherman-Stoltz (Sherman-Stoltz Law Group, PLLC, on
briefs), for appellant.
Liam A. Curry, Assistant Attorney General (Jason S. Miyares,
Attorney General, on briefs), for appellee.
Arun Rashid Turay (Turay) entered conditional guilty pleas in the Circuit Court for the City
of Waynesboro (circuit court) and appealed the circuit court’s denial of his motion to suppress
evidence.1 Turay contends on appeal that the circuit court erred in finding that the police had
reasonable, articulable suspicion to detain him and, therefore, erred in denying his motion to
*
This opinion is not designated for publication. See Code § 17.1-413.
1
Pursuant to Code § 19.2-254, Turay’s entry of conditional guilty pleas reserved his right to
appellate review of the circuit court’s adverse determination of his suppression motion. Based on
his conditional guilty pleas, Turay was convicted of armed burglary in violation of Code § 18.2-90,
robbery in violation of Code § 18.2-58, use of a firearm in commission of robbery in violation of
Code § 18.2-53.1, and possession or transportation of a firearm after having been convicted of a
violent felony in violation of Code § 18.2-308.2.
suppress the fruits of his unconstitutional seizure.2 A divided panel of this Court issued a decision
on October 18, 2022, affirming the circuit court’s judgment denying Turay’s suppression motion.
Turay timely petitioned the panel to reconsider its decision. The panel granted Turay’s petition for
rehearing, withdrew the panel’s original opinion, and vacated the mandate by order dated November
22, 2022. After rehearing, this Court agrees with Turay and reverses the circuit court’s judgment
denying his motion to suppress.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party” in the circuit court. McGowan v.
Commonwealth, 72 Va. App. 513, 516 (2020) (quoting Gerald v. Commonwealth, 295 Va. 469, 472
(2018)). This Court “regard[s] as true all credible evidence favorable to the Commonwealth and all
inferences that may reasonably be drawn from that evidence.” Id. (citing Gerald, 295 Va. at 473).
On February 17, 2020, late in the evening, Deputy Sheriff Stroop of Augusta County
responded to a radio call regarding a robbery in Waynesboro. When Deputy Stroop drove by the
crime scene in Waynesboro, an officer on the roadway told him “there [were] people inside the
house that weren’t supposed to be there, a firearm was taken, and then they fled on foot.” Although
unfamiliar with the area, Deputy Stroop decided to drive around to look for the suspects.
While Deputy Stroop was driving, he heard Sergeant Lemons announce on the radio a “be
on the lookout” (BOLO) for “three Black males, all armed” and “wearing black sweatshirts.”
Around 11:30 p.m., about thirty minutes after the robbery, Deputy Stroop stopped and detained two
2
Turay’s co-defendant, Justice Ahmad Carr, filed a separate appeal to this Court
challenging the denial of his motion to suppress, which was heard in the circuit court in a joint
evidentiary hearing with Turay’s suppression motion. See Carr v. Commonwealth,
No. 1136-21-3 (Va. Ct. App. Oct. 18, 2022) (vacating convictions where defendant was
unlawfully seized without reasonable, articulable suspicion of criminal activity and the trial court
erred in failing to suppress evidence obtained pursuant to the unconstitutional seizure).
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Black men who “were walking down the road.” The two men seized by the deputy were Turay and
his co-defendant, Justice Ahmad Carr (Carr). The location of the seizure was approximately six to
ten blocks from the scene of the robbery, although Deputy Stroop testified that he did not recall how
far he was from the crime scene when he stopped Turay and Carr. Deputy Stroop testified that at
the time of the seizure, there were not many people out on the street where Turay and Carr were
walking. Deputy Stroop also testified that Turay and Carr were not doing anything but walking
down the road in a residential neighborhood.
Deputy Stroop testified that he seized Turay and Carr after he concluded “[t]hey matched
the description of what was given out” over the radio. According to Sergeant Lemons’s police
report and testimony, neither Turay’s nor Carr’s clothing matched the suspects’ clothing description
that Sergeant Lemons gave in the BOLO.3 Sergeant Lemons testified that Turay was wearing a
black hooded jacket with a red stripe down the arm. Officer Mawyer, a patrol officer who
responded to the BOLO, also testified that Turay “was wearing a black jacket with a distinct red
stripe . . . down the sleeves” and Carr was wearing gray pants and a white hoodie. The police
3
Sergeant Lemons’s testimony:
Q: And then you arrived, and you immediately saw that they
weren’t wearing what was described, or what you knew personally
from the — from the cell phone footage; right?
A: Correct. . . . [T]he clothing didn’t match; that’s correct.
....
Q: Do you recall, in your report, that . . . You indicated in your
report that at the time of arrival that the first thing you noticed was
that neither of the males’ clothing description matched what you
had said over the radio?
A: I do recall that; yes, ma’am.
(Emphasis added).
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bodycam video shows Carr wearing light gray pants, a long-sleeved white top with a multi-colored
print and lettering on the front, a white or light-colored cap with a dark brim, turned backward, and
a backpack with a floral design. The police bodycam video shows Turay wearing black pants and a
long-sleeved black top with a wide red stripe down each sleeve and a wider blue stripe on each side
of the garment.
Deputy Stroop held Turay and Carr at gunpoint and directed them to place their hands on
the hood of his police car. Moments later, after Deputy Stroop notified Waynesboro police,
Officers Cacciapaglia and Mawyer from Waynesboro arrived separately at Deputy Stroop’s location
to determine whether he had detained the right people.
Upon Officer Mawyer’s arrival at the detention site, Sergeant Lemons provided a more
detailed description of the suspects’ clothing, including information obtained after the BOLO. After
hearing this additional information, the Waynesboro patrol officers handcuffed and searched Turay
and Carr. Neither Turay nor Carr possessed any weapons. But Carr possessed credit cards
belonging to one of the victims, and Turay had a bookbag that contained a victim’s keys in addition
to bloody clothes and shoes that looked the same as items seen on the video of the robbery. A DNA
comparison showed that the blood on the clothes matched one of the victims.
Turay filed a suppression motion in the circuit court alleging that his detention by Deputy
Stroop was an unconstitutional seizure because it was not supported by reasonable, articulable
suspicion that Turay was involved in the robbery. Carr also filed a suppression motion alleging
that he was unconstitutionally stopped and detained without reasonable, articulable suspicion.
After a joint hearing on both defendants’ suppression motions, the circuit court denied both motions
for the reasons stated in its letter opinion dated March 24, 2021 (March 2021 letter opinion).
In the March 2021 letter opinion, the circuit court made the following factual findings:
• The first BOLO description radioed by Sergeant Lemons described the suspects as “three
Black males wearing black.”
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• Although Sergeant Lemons radioed more detailed descriptions of the suspects’ clothing after
the initial BOLO, “Deputy Stroop would have only heard the first description prior to
detaining the Defendants.”
• When Sergeant Lemons arrived at the location where Turay and Carr were detained, “he
noticed that their clothing did not match precisely the descriptions that he previously gave
over his police radio.”
• “Carr’s clothing was not black,” but “Turay’s clothing was black, matching the description
heard by Deputy Stroop.”
• “Neither [Carr nor Turay] was wearing black sweatpants with a red stripe.”
• “[T]he Defendants at the time [Deputy] Stroop encountered them, matched the description
in sex, race, and some of the clothing.”
• “[T]here were no other people out in the neighborhood during this time” when Deputy
Stroop observed Turay and Carr walking down the street late in the evening.
• “[T]he Defendants were the only two people Deputy Stroop encountered walking in the
residential neighborhood, at 11:30 p.m., a relative short distance from the crime scene
within thirty minutes of the crime.”
The circuit court also found that, taken together, the factors of proximity, time, physical description,
gender, and racial description “gave Deputy Stroop, an objective, reasonable suspicion that the
Defendants may have been involved in the crime that occurred a few blocks away and a few
minutes before his encounter with them.” Thus, the circuit court found that Deputy Stroop had
reasonable, articulable suspicion to stop and detain Turay and Carr. Based on these findings, the
circuit court held that “the stop and detention of the Defendants by Deputy Stroop was not in
violation of the Fourth Amendment.” Accordingly, the circuit court denied both defendants’
suppression motions. This appeal followed.
ANALYSIS
A. Standard of Review
On appeal of the denial of a motion to suppress evidence, this Court “determine[s]
whether the accused has met his burden to show that the trial court’s ruling, when the evidence is
viewed in the light most favorable to the Commonwealth, was reversible error.” Merid v.
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Commonwealth, 72 Va. App. 104, 108 (2020) (quoting Cantrell v. Commonwealth, 65 Va. App.
53, 56 (2015)), aff’d, 300 Va. 77 (2021), cert. denied sub nom. Merid v. Virginia, 142 S. Ct.
1137 (2022). Turay’s “claim that [he] was seized in violation of the Fourth Amendment presents
a mixed question of law and fact . . . .” Id. at 108-09 (quoting King v. Commonwealth, 49
Va. App. 717, 721 (2007)). This Court is “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.” Id. at
109 (quoting Cantrell, 65 Va. App. at 56). “However, we consider de novo whether those facts
implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an
area protected by the Fourth Amendment.” Id. (quoting Cantrell, 65 Va. App. at 56); see also
Moreno v. Commonwealth, 73 Va. App. 267, 274 (2021) (“[We] review[ ] de novo the
overarching question of whether a search or seizure violated the Fourth Amendment.” (quoting
Williams v. Commonwealth, 71 Va. App. 462, 475 (2020))).
B. Motion to Suppress the Fruits of the Unconstitutional Seizure
Turay argues on appeal that the circuit court erred in denying his motion to suppress because
Deputy Stroop unreasonably seized him without a warrant and without reasonable, articulable
suspicion that he was engaged in criminal activity. The Fourth Amendment protects “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. Const. amend. IV. “If a police officer has reasonable, articulable suspicion
that a person is engaging in, or is about to engage in, criminal activity, the officer may detain the
suspect to conduct a brief investigation without violating the person’s Fourth Amendment
protection against unreasonable searches and seizures.” Long v. Commonwealth, 72 Va. App.
700, 712 (2021) (quoting McGee v. Commonwealth, 25 Va. App. 193, 202 (1997) (en banc)). “A
reasonable, articulable suspicion is ‘a particularized and objective basis for suspecting the person
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stopped of criminal activity.’” Id. (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).
To determine whether a police seizure is reasonable under the Fourth Amendment, this Court
considers the totality of the particular circumstances at the time of the seizure. See Harmon v.
Commonwealth, 15 Va. App. 440, 445 (1992).
We hold that Deputy Stroop’s detention of Turay violated his Fourth Amendment right
against unreasonable seizures because, at the time of the seizure, there was no particularized,
objective basis for suspecting Turay of criminal activity. There is no evidence that Deputy
Stroop observed Turay or Carr do anything suspicious or evasive. Deputy Stroop detained Turay
and Carr when they were merely walking—not rushing—down the street at night in a residential
neighborhood. There is no evidence that they were walking away from, rather than toward, the
scene of the robbery. The mere observation of two Black men walking late at night in a residential
neighborhood cannot give rise to reasonable, individualized suspicion that they were involved in a
robbery that occurred six to ten blocks away thirty minutes earlier. See McCain v. Commonwealth,
275 Va. 546, 552 (2008) (“The character of the location and the time at which a person is observed
are relevant factors, but they do not supply a particularized and objective basis for suspecting
criminal activity on the part of the particular person stopped.” (citing Brown v. Texas, 443 U.S. 47,
51-52 (1979); Illinois v. Wardlow, 528 U.S. 119, 124 (2000))). And the circuit court’s finding that
“there were no other people out in the neighborhood” when Turay and Carr were walking down the
street is not a reasonable inference from the only evidence on that issue—that there were not a lot of
people out on the street at that time. Although this Court defers to the circuit court’s factual
findings, we reject unreasonable inferences that are not supported by the evidence. See Potts v.
Commonwealth, 12 Va. App. 1093, 1099 (1991).
Deputy Stroop testified that he detained Turay and Carr only because he thought they
matched the description of the suspects in the BOLO. Yet the BOLO only included a vague
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description of clothing and did not include a description of any suspect’s height, weight, build, hair
style, facial characteristics, age, or any other distinguishing physical features apart from the general
classifications of race (Black) and gender (male).
In fact, the record shows that Turay and Carr did not match the extremely vague BOLO
description of three armed Black males wearing black sweatshirts. First, as Sergeant Lemons
testified and recorded in his police report, the first thing he noticed when he saw Turay and Carr
was that neither Turay’s nor Carr’s clothing matched the suspects’ clothing description in the
BOLO.4 Carr was not wearing black at all, but was wearing a white top and light gray pants. Turay
was wearing a black jacket or black sweatshirt with distinctive red stripes down the sleeves and a
wider blue stripe on each side. Second, there were only two men, not three. Third, nothing in the
record supports an inference that either Turay or Carr appeared to be armed; in fact, neither was
armed.
Considering the facts available to Deputy Stroop at the time of the seizure, as we must,
Deputy Stroop’s observations of Turay did not provide a particularized, objective basis for
suspecting Turay’s involvement in the robbery or any other criminal activity. See Terry v. Ohio,
According to the dissent, even if Turay and Carr’s clothing did not match the BOLO
4
description of the suspects’ clothing, Deputy Stroop reasonably stopped them based on his
honest belief that their clothing matched the BOLO description. The dissent concludes that the
deputy’s honest mistake of fact does not warrant the suppression of evidence. However, as the
Supreme Court recognized in Terry, “[i]f subjective good faith alone were the test, the
protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their
persons, houses, papers, and effects,’ only in the discretion of the police.” Terry v. Ohio, 392
U.S. 1, 22 (1968) (quoting Beck v. Ohio, 379 U.S. 89, 97 (1964)).
Although the suppression of evidence is not warranted when the justification for a seizure
includes an officer’s reasonable mistake of fact, the record does not support a finding that
Deputy Stroop reasonably mistook Turay and his companion, Carr—who was wearing a
long-sleeved white top—for two Black males wearing black sweatshirts. Cf. Heien v. North
Carolina, 574 U.S. 54, 57 (2014) (Under the Fourth Amendment, “a search or seizure may be
permissible even though the justification for the action includes a reasonable factual mistake.”);
Collins v. Commonwealth, 297 Va. 207, 218 (2019) (holding that suppression is not a proper
remedy for a Fourth Amendment violation where the police acted with an objectively reasonable,
good faith belief that the search and seizure were constitutional).
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392 U.S. 1, 21-22 (1968) (establishing that the court should consider “the facts available to the
officer at the moment of the seizure”). Deputy Stroop expressly testified that he stopped Turay
and Carr because he thought they matched the BOLO description. But even if Turay had been
wearing a garment that could be accurately described as a “black sweatshirt,” as described in the
BOLO, wearing such a non-distinctive garment—without more—does not support a finding of
particularized reasonable suspicion of criminal activity. “In the absence of other circumstances
that provide sufficient particularity, a generalized description applicable to large numbers of
people contradicts the Fourth Amendment’s jurisprudence demanding specificity and will not
suffice to justify the seizure of any individual.” Armstrong v. United States, 164 A.3d 102, 108
(D.C. 2017) (citations omitted) (holding that the lookout description was insufficiently
particularized where the description consisted of “a white car, possibly a Mercury Sable, with
tinted windows and two Black males”); see also United States v. Brown, 448 F.3d 239, 247 (3d
Cir. 2006) (holding that the police radio broadcast of a description of two Black male robbery
suspects “fail[ed] to satisfy the Fourth Amendment’s ‘demand for specificity’” (quoting Terry,
392 U.S. at 21 n.18)). Here, the BOLO description of three Black males wearing black
sweatshirts lacks the particularized specificity necessary to warrant the seizure of any person.
See Terry, 392 U.S. at 21 n.18 (“This demand for specificity in the information upon which
police action is predicated is the central teaching of [the United States Supreme] Court’s Fourth
Amendment jurisprudence.”).
Because there was no particularized, objective basis for suspecting that Turay was engaged
in criminal activity, Deputy Stroop’s seizure of Turay was without reasonable, articulable suspicion
that Turay was involved in the robbery. Therefore, because Turay was seized in violation of his
Fourth Amendment right against unreasonable seizures, we conclude that the circuit court erred in
denying Turay’s motion to suppress the fruits of the officers’ Fourth Amendment violation. See
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Terry, 392 U.S. at 15 (holding that an unreasonable search or seizure by police “must be condemned
by the judiciary and its fruits must be excluded from evidence in criminal trials”); see also Wong
Sun v. United States, 371 U.S. 471, 487-88 (1963).
CONCLUSION
The warrantless seizure of Turay violated the Fourth Amendment because, at the time of
the seizure, the police lacked particularized reasonable, articulable suspicion that Turay was
engaged in criminal activity. Therefore, this Court holds that the circuit court erred in denying
Turay’s motion to suppress the fruits of the unconstitutional seizure. Accordingly, this Court
reverses the circuit court’s decision denying the motion to suppress, vacates Turay’s convictions,
and remands to the circuit court for further proceedings not inconsistent with this opinion,
allowing Turay to withdraw his guilty pleas pursuant to Code § 19.2-254.
Reversed and remanded.
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Petty, S.J., dissenting.
Last October we issued an opinion affirming the trial court’s denial of Turay’s motion to
suppress. Turay v. Commonwealth, No. 0868-21-3 (Va. Ct. App. Oct. 18, 2022) (Turay I).
Despite there being no change to either the facts or the law since that opinion, a majority of the
panel granted Turay’s petition for rehearing and has now reversed course. I continue to believe
that the panel was correct in its initial decision, and I have seen nothing that would change the
outcome. Therefore, for the reasons set out in the majority opinion in Turay I as well as those
reasons I expressed in my dissent to the companion case of Carr v. Commonwealth,
No. 1136-21-3 (Va. Ct. App. Oct. 18, 2022), I respectfully dissent.
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