Commonwealth v. Hill

PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA

v. Record No. 012526 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 1, 2002
JOHN HOWARD HILL, JR.

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred in reversing a defendant's conviction and dismissing an

indictment on the ground that the common law right to use

reasonable force to resist an illegal arrest also confers a

right to use reasonable force to resist an illegal detention.

John H. Hill, Jr., was indicted for assault and battery of

a law enforcement officer, in violation of Code § 18.2-57(C).

Hill was accused of striking Officer K. I. Fromme of the City of

Suffolk Police Department while Fromme was attempting to conduct

a "pat down" search of Hill to determine whether he was carrying

a weapon. Hill was convicted of the offense in the Circuit

Court of the City of Suffolk. The court sentenced him to a term

of three years' imprisonment and suspended two and one-half

years of that sentence.

Hill appealed from his conviction to the Court of Appeals,

which reversed the trial court's judgment and dismissed the

indictment. Hill v. Commonwealth, 37 Va. App. 1, 9, 553 S.E.2d

529, 533 (2001). The Court of Appeals concluded, among other
things, that Hill's physical resistance "to an illegal detention

and search was reasonable and proportionate to the conduct of

the police." Id. The Commonwealth appeals the Court of

Appeals' judgment.

Under established principles of appellate review, we will

state the evidence in the light most favorable to the

Commonwealth, the prevailing party in the trial court, and will

accord the Commonwealth the benefit of all reasonable inferences

fairly deducible from that evidence. Armstrong v. Commonwealth,

263 Va. 573, 576, 562 S.E.2d 139, 140 (2002); Stephens v.

Commonwealth, 263 Va. 58, 59-60, 557 S.E.2d 227, 228 (2002).

The evidence showed that on July 9, 1999, at 1:21 a.m., Officer

Fromme received a dispatch report, which was based on an

anonymous telephone call, stating that two black males were

"possibly dealing firearms" in front of a green house in the 400

block of Briggs Street. Fromme was familiar with that part of

Briggs Street as "an area where drugs are bought and sold." A

few minutes later, he arrived at the scene and was met shortly

thereafter by two other police officers.

At that time, Officer Fromme saw Hill sitting in the

driver's seat of a car, which had the driver's side door opened

and was parked in front of a green house in the 400 block of

Briggs Street. The officers did not observe any suspicious

activity as they approached the car. Hill and his companion did

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not attempt to run away and Hill complied with the officers'

request that he get out of the car.

Officer Fromme explained to the two men that he had

received a complaint about two suspects "possibly dealing

weapons," and that, for reasons concerning safety, he wanted to

"pat them down" to determine whether they carried any firearms.

Fromme "patted down" Hill's left side without encountering any

resistance from Hill. However, as Fromme attempted to "pat

down" Hill's right side, Fromme noticed a bulge in the right

pocket of Hill's pants. Hill pushed Fromme's hand away in an

attempt to prevent him from "patting down" that pocket.

Officer Fromme again told Hill that he only wanted to

determine whether Hill carried any weapons. As Fromme reached

toward the right pocket of Hill's pants, Hill placed his hand in

that pocket. When Fromme grabbed Hill's hand and removed it

from the pocket, Hill turned and tried to run away.

As Hill turned away from Officer Fromme, he struck the

officer in the mouth with his open hand, splitting

Fromme's lip. Hill was able to run a short distance before all

three officers struggled with him in an attempt to force him to

the ground and restrain him. During the struggle, Hill struck

Fromme "a couple of times" before the officers were able to

place Hill in handcuffs.

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 Officer Fromme searched the right pocket of Hill's pants

and discovered "a corner of a plastic baggie" concealed inside

of a black pen cap. The plastic baggie contained about 0.17

grams of cocaine. In Hill's right hand, Officer Fromme

discovered a film canister containing five "rocks" of crack

cocaine, which weighed a total of 5.01 grams. The officers did

not find any weapons on Hill's person or in the vehicle he had

occupied.

Before trial, Hill filed a motion to suppress the seized

evidence on the ground that his detention was illegal because

Officer Fromme did not have reasonable suspicion that Hill was

armed and dangerous or was involved in any criminal activity.

At a hearing that was later made part of the trial record, Hill

testified that he consented to a "pat down" search for weapons,

and that he did not resist Fromme's actions until Fromme tried

to reach into Hill's pocket. Hill also testified that he

"accidentally hit" Fromme while attempting to run away.

The trial court denied Hill's motion. The court concluded

that given the nature of the dispatch report, Officer Fromme

"made a reasonable pat down or attempt at a pat down for officer

safety. And it was the [resistance to] that pat down that led

to . . . the arrest."

In a bench trial, the court found Hill guilty of the

felonious assault charge. After this conviction, but before

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Hill's sentencing, the United States Supreme Court published

Florida v. J.L., 529 U.S. 266 (2000).

In J.L., the Court considered the issue "whether an

anonymous tip that a person is carrying a gun is, without more,

sufficient to justify a police officer's stop and frisk of that

person." Id. at 268. The Court concluded that "reasonable

suspicion . . . requires that a tip be reliable in its assertion

of illegality, not just in its tendency to identify a

determinate person." Id. at 272. The Court held that "an

anonymous tip lacking indicia of reliability . . . does not

justify a stop and frisk whenever and however it alleges the

illegal possession of a firearm." Id. at 274.

Before his sentencing hearing, Hill filed a motion to set

aside his conviction, relying on the Supreme Court's holding in

J.L. The trial court concluded that under the decision in J.L.,

Hill was unlawfully detained. However, the court held that

Hill's actions were unlawful because his resistance was

disproportionate to Officer Fromme's attempt to remove Hill's

hand from his pocket. On this basis, the court denied the

motion to set aside the conviction.

In his appeal to the Court of Appeals, Hill argued that his

conviction should be reversed "because he used reasonable force

to repel an illegal arrest." Hill, 37 Va. App. at 2-3, 553

S.E.2d at 530. The Court of Appeals concluded that Hill was the

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subject of an illegal detention, not an illegal arrest. Id. at

5, 553 S.E.2d at 531. However, the Court held that the common

law doctrine allowing an individual to use reasonable force to

resist an illegal arrest applies also to a detainee's efforts to

resist an illegal detention. Id. at 5-6, 553 S.E.2d at 531-32.

The Court further concluded that Hill did not use excessive

force to resist the detention because he struck Officer Fromme

with an "open hand," he "did not aggressively pursue or attack"

Fromme, and he only struck Fromme in attempting "to get away

from the officer's assault." Id. at 7, 553 S.E.2d at 532.

Based on this holding, the Court reversed Hill's conviction and

dismissed the indictment. Id. at 9, 553 S.E.2d at 533.

On appeal to this Court, the Commonwealth argues that the

Court of Appeals erred in extending the common law right to use

reasonable force to resist an unlawful arrest to an incident

involving only an unlawful detention. The Commonwealth asserts

that there is a significant distinction between a detention and

an arrest because a detention involves only a temporary

deprivation of the detainee's liberty, while an arrest is the

initial stage of a criminal prosecution that restricts the

arrested person's freedom for an extended period of time. The

Commonwealth contends that a rule permitting a detainee to

resist an illegal detention would escalate the danger of

violence to law enforcement officers engaged in the reasonable

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performance of their duties. Thus, the Commonwealth maintains

that the determination whether a detention is legal "should be

left solely to the courts, not the fist of the suspect."

In response, Hill argues that the "pat down" search

conducted by Officer Fromme was unlawful because he did not have

a basis for concluding that Hill may have been armed and

dangerous or engaged in criminal activity. Hill contends that

Fromme's actions gave Hill the right to use reasonable force to

resist the unlawful detention and search. We disagree with

Hill's arguments.

We first observe that the trial court held that Officer

Fromme acted illegally when he detained Hill based on an

anonymous tip. The Commonwealth did not challenge this ruling

either in the trial court or in the Court of Appeals.

Therefore, we do not consider that issue and restrict our

analysis to the question whether the common law right to use

reasonable force to resist an illegal arrest is applicable to

the use of such force to resist an illegal detention.

This issue presents a pure question of law. Thus, we do

not give deference to the trial court's conclusions on the

subject, and we are permitted the same opportunity as the trial

court to consider that question of law. See Lee County v. Town

of St. Charles, 264 Va. 344, 347-48, 568 S.E.2d 680, 682 (2002);

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Musselman v. Glass Works, L.L.C., 260 Va. 342, 346, 533 S.E.2d

919, 921 (2000).

We conclude that the law of this Commonwealth, including

the common law of England incorporated into our Code by § 1-10,

does not provide a basis for recognizing a common law right to

use force to resist an illegal detention. In the absence of

authority requiring such a right, we perceive no reason for

enlarging, by judicial decision, the scope of the common law on

this subject.

Under the common law, a citizen generally is permitted to

use reasonable force to resist an illegal arrest. See Banner v.

Commonwealth, 204 Va. 640, 646-47, 133 S.E.2d 305, 309-10

(1963); Brown v. Commonwealth, 27 Va. App. 111, 116-17, 497

S.E.2d 527, 530 (1998). The underlying rationale supporting

this common law right is the "provocation" of an illegal arrest,

which operates to excuse an assault directed at thwarting the

unlawful arrest. See Rodgers v. State, 373 A.2d 944, 947 (Md.

1977); State v. Hobson, 577 N.W.2d 825, 830 (Wis. 1998). An

unlawful arrest was considered a great provocation at common law

because of the dire consequences, including incarceration of

extreme duration, which often resulted before an accused was

permitted a trial for the charged offense. See State v.

Valentine, 935 P.2d 1294, 1300-01 (Wash. 1997); see also State

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v. Gardiner, 814 P.2d 568, 572 (Utah 1991); Hobson, 577 N.W.2d

at 835.

This historical impetus underlying the common law right to

resist an illegal arrest does not raise corresponding concerns

in the context of a contemporary investigative detention. In

our present justice system, the different consequences that

attend an arrest and an investigative detention are manifest.

As the Supreme Court stated in Terry v. Ohio, 392 U.S. 1 (1968):

An arrest is a wholly different kind of intrusion upon
individual freedom from a limited search for weapons,
and the interests each is designed to serve are
likewise quite different. An arrest is the initial
stage of a criminal prosecution. It is intended to
vindicate society's interest in having its laws
obeyed, and it is inevitably accompanied by future
interference with the individual's freedom of
movement, whether or not trial or conviction
ultimately follows.

Id. at 26. After an arrest, a citizen's liberty is completely

constrained, at a minimum, until a judicial officer has

determined the issue of bail. Police and court records

permanently record the event of an arrest, which becomes an

indelible part of a citizen's history unless a court order later

is issued expunging those arrest records. 1

1
See Code § 19.2-392.2, which permits a circuit court to
order the expungement of police and court records upon certain
findings when a person is charged with the commission of a crime
and is acquitted, when the charge is dismissed or a nolle
prosequi is taken, or when an absolute pardon is granted.

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 In contrast, a protective search for weapons or other

investigative detention constitutes a brief, though not

inconsequential, restriction on an individual's freedom of

movement. See Terry, 392 U.S. at 24-26. Such detentions are

informal encounters that generally are not the subject of any

public record.

Because a detention is, by its nature, a brief intrusion on

an individual's liberty, the provocation resulting from an

illegal detention is far less significant than the provocation

that attends an illegal arrest. Thus, recognition of a right to

resist an unlawful detention would not advance the rationale

supporting the common law right to use reasonable force to

resist an unlawful arrest, but would only serve to increase the

danger of violence inherent in such detentions. 2 "Close

questions as to whether an officer possesses articulable

suspicion must be resolved in the courtroom and not fought out

on the streets." State v. Wiegmann, 714 A.2d 841, 849-50 (Md.

1998) (quoting State v. Blackman, 617 A.2d 619, 630 (Md. App.

1992)).

Accordingly, we hold that a person in this Commonwealth

does not have the right to use force to resist an unlawful

2
We note that the overall trend in a majority of states has
been toward abrogation of the common law right to use reasonable
force to resist an unlawful arrest. See Valentine, 935 P.2d at

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detention or "pat down" search. Thus, in the present case, Hill

did not have the right to use force to resist the challenged

detention and "pat down" search by Officer Fromme, and the Court

of Appeals erred in reaching a contrary conclusion.

For these reasons, we will reverse the judgment of the

Court of Appeals, and we will reinstate Hill's conviction in

accordance with the trial court's judgment order because the

trial court reached the correct result in this case, although

for the wrong reason. See Frye v. Commonwealth, 231 Va. 370,

389, 345 S.E.2d 267, 281 (1986); Thims v. Commonwealth, 218 Va.

85, 93, 235 S.E.2d 443, 447 (1977).

Reversed and final judgment.

1302; Hobson, 577 N.W.2d at 834-35. That issue is not before us
here.

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