Ford v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Bumgardner
Argued by teleconference

ANGELO LEWIS FORD
OPINION BY
v. Record No. 0119-97-2 JUDGE RUDOLPH BUMGARDNER, III
SEPTEMBER 1, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
D. Gregory Carr (Bowen, Bryant, Champlin &
Carr, on brief), for appellant.

Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

Angelo Ford was convicted of grand larceny during a bench

trial. The appellant contends the court erred by denying his

motion to suppress because: (1) the stop was invalid; (2) the

appellant was subjected to custodial interrogation without being

given Miranda warnings; and (3) the show-up was unduly

suggestive. In addition, the appellant alleges the trial court

erred in denying his motion challenging the sufficiency of the

evidence. For the following reasons, we affirm the trial court's

decision.

The evidence at the appellant's trial proved that, on

November 27, 1995, Detective J.A. Capocelli observed the

appellant walking with two women in the parking lot of the

Cloverleaf shopping mall. The appellant was carrying a white

plastic bag. As they approached a wooded area on the east side
of the lot, the appellant and the two women looked over their

shoulders several times. The appellant then separated from the

two women and entered a wooded area adjacent to the parking lot.

Detective Capocelli lost sight of the appellant for the minute

or two he was in the wooded area. The appellant then exited the

woods without the white plastic bag and returned to the two

women. The appellant and one of the women started walking toward

the woods together but then turned back and joined the second

woman. All three then walked into the mall.
After the appellant and the two women entered the mall,

Detective Capocelli went into the wooded area and "after about

ten seconds of searching, . . . found a white plastic bag hidden

underneath two old mattresses that were disposed in the woods."

The bag was similar in appearance to the one he had earlier seen

the appellant carry into the wooded area. No other white bag was

found. Inside the bag were five pieces of women's clothing that

were "rolled up." The clothing had store tags indicating they

came from a store named "Lane Bryant." There was no sales slip

or receipt inside the bag. Detective Capocelli replaced the

clothing and the bag in the wooded area and returned to his car.

About thirty to forty-five minutes after Detective Capocelli

had seen the appellant and the two women enter the mall, the

detective observed them exit the mall and walk east on Midlothian

Turnpike. Detective Capocelli and three uniformed police

officers, who had been informed of the detective's observations,

- 2 -

2
stopped the appellant and the two women by approaching them in

vehicles with blue police lights activated. Detective Capocelli

exited his vehicle and approached the appellant while two

officers exited their cars and approached the two women.

Detective Raymond Michael Louth attempted to ascertain whether

the appellant had been in Lane Bryant that day.

Detective Capocelli asked the appellant for his name and any

identification. The appellant provided neither. While most

questions were geared toward identification, Detective Capocelli

did ask the appellant if he could explain his actions in the

parking lot. Early during the stop, the appellant denied being

on the mall property, denied carrying a bag, and denied knowing

the two females with him. Detective Capocelli testified at trial

that the appellant was not free to leave and that he asked the

appellant many questions more than once. The appellant was read

his Miranda rights about thirty minutes after he was stopped.

The appellant subsequently asked for an attorney.

Detective Louth, who had observed the appellant and the two

women in the mall, retrieved the white bag from the woods after

Detective Capocelli had told him where it was located. Detective

Louth then took the clothing in the bag to Lane Bryant. He drove

a store clerk to where Detective Capocelli was talking to the

appellant, but the clerk did not recognize him. Detective Louth

then transported another clerk, Nicole Dance El, to the scene of

the appellant's stop. Although Ms. El had not previously given a

- 3 -

3
description of the appellant to Detective Louth, she told him

that the people being detained had been in the store that day;

she recognized a hat worn by one of the women. Ms. El recalled

the appellant and the two women because they were one of only two

customers she had assisted that day. She had noted nothing

unusual about the appellant's behavior in the store.

Ms. El testified that when items are purchased from Lane

Bryant, the store's practice is to have the cashier tear off the

bottom half of the store tag. She also stated that the value of

the clothing in the bag was between $340-$350.
I. Motion to Suppress

When a motion to suppress is reviewed on appeal, the burden

is on the appellant to show that the ruling, when the evidence is

considered in the light most favorable to the Commonwealth,

constituted reversible error. See Fore v. Commonwealth, 220 Va.

1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017

(1980). We review the trial court's findings of historical fact

only for "clear error," but we review de novo the trial court's
application of defined legal standards, such as "reasonable

suspicion" and "custodial interrogation," to the particular facts

of a case. See Shears v. Commonwealth, 23 Va. App. 394, 398, 477

S.E.2d 309, 311 (1996); see also Ornelas v. United States, 517

U.S. 690, 700 (1996).

A police officer may stop and detain a person "for purposes

of investigating possible criminal behavior even though there is

- 4 -

4
no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1,

22 (1968); DePriest v. Commonwealth, 4 Va. App. 577, 585, 359

S.E.2d 540, 544-45 (1987), cert. denied, 488 U.S. 985 (1988).

Investigative stops must be based on articulable facts supporting

a reasonable suspicion that, based on the totality of

circumstances, the suspect detained has committed or is about to

commit a crime. See United States v. Cortez, 449 U.S. 411,

417-18 (1981); Leeth v. Commonwealth, 223 Va. 335, 340, 288

S.E.2d 475, 478 (1982) (a stop requires a less stringent test

than probable cause); DePriest, 4 Va. App. at 584, 359 S.E.2d at
543. A trained and experienced police officer may be able to

detect criminal behavior that might appear innocent to an

untrained observer. See Cortez, 449 U.S. at 418; Taylor v.

Commonwealth, 6 Va. App. 384, 388, 369 S.E.2d 423, 425 (1988).

We hold that Detective Capocelli had a reasonable,

articulable suspicion that the appellant had committed a crime at

the time he was stopped. The detective observed the appellant

walking from the mall toward a wooded area while carrying a white

plastic bag and looking over his shoulder several times. He then

observed the appellant walk into a wooded area and emerge a few

minutes later without the bag. The detective retrieved the bag

moments later and discovered it contained what appeared to be

stolen items of women's clothing. Based on these facts,

Detective Capocelli could reasonably surmise that the appellant

had engaged in criminal activity. See Cortez, 449 U.S. at

- 5 -

5
421-22. In addition, the record established that the detective

communicated this information to the other officers who assisted

in the stop. Detaining suspects expeditiously to avoid their

possible flight or remaining at large promotes the government's

interest in solving crimes and bringing offenders to justice,

United States v. Hensley, 469 U.S. 221, 229 (1985), and in this

case, Detective Capocelli and the other officers acted with

dispatch. As such, we cannot say that the trial court erred when

it concluded that the investigative stop was valid.
Next we consider whether the appellant was in custody when

questioned. An investigative stop requires Miranda safeguards

when, considering all factors, a suspect is "in custody." See

Wass v. Commonwealth, 5 Va. App. 27, 32, 359 S.E.2d 836, 839

(1987); Commonwealth v. Milner, 13 Va. App. 556, 558, 413 S.E.2d

352, 353 (1992) (citing Berkemer v. McCarty, 468 U.S. 420, 440

(1984)). Whether a suspect is "in custody" under Miranda is

determined by the circumstances of each case, and "the ultimate

inquiry is simply whether there is a 'formal arrest or restraint

on freedom of movement' of the degree associated with formal

arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983)

(citation omitted). A temporary detention for purposes of

investigation, without more, does not necessarily render a person

"in custody." See United States v. Brignoni-Ponce, 422 U.S. 873,

881-82 (1975); DePriest, 4 Va. App. at 587, 359 S.E.2d at 545;
Dixon v. Commonwealth, 11 Va. App. 554, 556, 399 S.E.2d 831,

- 6 -

6
832-33 (1991).

In this case, the evidence supports the trial court's

finding that the appellant was not in custody at the time his

statements were made. The appellant was detained on a public

street in the middle of the afternoon. Although he was not free

to leave, he was not restrained, handcuffed, or searched. While

four officers were present with police vehicles, there were three

suspects, and one officer was ascertaining whether the appellant

had been in the store. The appellant was not surrounded, and

only Detective Capocelli asked him questions. Most of the

questions were related to identification, and police may, within

the scope of an investigative stop, ask a suspect to explain

suspicious circumstances. See Brignoni-Ponce, 422 U.S. at

881-82. Detective Capocelli testified that he never told the

appellant that he was being apprehended for alleged grand

larceny. Under these circumstances, we cannot say that a

reasonable person in the appellant's position would have believed

that his encounter with the officers had escalated from an

investigative detention to an arrest.

The thirty-minute detention before Miranda warnings were
issued does not affect our decision.
Much as a "bright line" rule would be
desirable, in evaluating whether an
investigative detention is unreasonable,
common sense and ordinary human experience
must govern over rigid criteria.

* * * * * * *

In assessing whether a detention is too

- 7 -

7
 long in duration to be justified as an
investigative stop, we consider it
appropriate to examine whether the police
diligently pursued a means of investigation
that was likely to confirm or dispel their
suspicions quickly, during which time it was
necessary to detain the defendant.

United States v. Sharpe, 470 U.S. 675, 685-86 (1985). See

United States v. Alpert, 816 F.2d 958 (4th Cir. 1987)

(fifty-minute delay for obtaining narcotics dog is permissible);

Thomas v. Commonwealth, 16 Va. App. 851, 856-57, 434 S.E.2d 319,

322-23 (1993), aff'd, 18 Va. App. 454, 444 S.E.2d 275 (1994) (en
banc) (lawful to handcuff and transport suspect in police vehicle

to victim's house for identification); Burgess v. Commonwealth,

14 Va. App. 1018, 1022, 421 S.E.2d 664, 666 (1992) (forty-minute

detention in police vehicle is permissible where police are

determining whether car was stolen).

Here, the appellant was subjected to an investigative stop

for the purpose of determining whether he had been in the Lane

Bryant store. The police saw him walking away from the mall and

acted quickly to detain him for investigative purposes. As a

result of the stop, Detective Capocelli's suspicions were further

aroused. The appellant made statements that contradicted the

detective's personal observations. In addition, Detective Louth

recovered the white plastic bag from the wooded area and

determined that the clothing it contained had been stolen and

that the appellant had been in Lane Bryant earlier in the day.

The officers acted diligently and without unnecessary or

- 8 -

8
deliberate delay to effectuate the purpose of the stop. Thus, we

conclude that the trial court properly denied the appellant's

motion to suppress.

The appellant also contends the show-up was unduly

suggestive and violated his due process rights. We disagree.

Pre-trial show-ups are not per se violative of

constitutional rights. Reliability of the show-up is determined

by considering the totality of circumstances. See Neil v.
Biggers, 409 U.S. 188, 198-99 (1972); Yarborough v. Commonwealth,

15 Va. App. 638, 643, 426 S.E.2d 131, 134 (1993), rev'd on other

grounds, 247 Va. 215, 441 S.E.2d 342 (1994). Courts should

consider the opportunity of the witness to observe the suspect at

the time of the crime, the witness' degree of attention, the

accuracy of the witness' prior description of the suspect, the

level of certainty demonstrated by the witness' confrontation,

and the length of time between the crime and the confrontation.

See Neil, 409 U.S. at 199-200.

In this case, the purpose of the identification was to

determine whether the appellant had been in the store. The first

store clerk did not recognize the appellant. Ms. El identified

the appellant with certainty. She had observed the appellant in

her store, recalled speaking with one of the women with him, and

very little time had elapsed between her observation of them in

the store and the confrontation. The show-up was conducted as

expeditiously as possible. Based on these circumstances, we

- 9 -

9
conclude that the show-up was not impermissibly suggestive.

II. Motion to Strike

When an appeal challenges the sufficiency of the evidence,

the evidence is viewed in the light most favorable to the

Commonwealth, granting to it all reasonable inferences deducible

therefrom. A judgment will not be disturbed unless plainly wrong

or unsupported by the evidence. See Code § 8.01-680;

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975); Limonja v. Commonwealth, 8 Va. App. 532, 534, 383
S.E.2d 476, 477-78 (1989) (en banc), cert. denied, 495 U.S. 905

(1990).

A conviction will be affirmed when the circumstantial

evidence excludes every reasonable hypothesis of innocence which

flows from the evidence. See Higginbotham, 216 Va. at 353, 218

S.E.2d at 537; Stamper v. Commonwealth, 220 Va. 260, 272, 257

S.E.2d 808, 817 (1979), cert. denied, 445 U.S. 972 (1980).

The appellant has suggested various inferences that could be

drawn from the evidence which, he asserts, create a reasonable

hypothesis of innocence. He alleges the court erred in denying

his motion to strike because: (1) the larceny presumption that

arises when one is in possession of recently stolen property does

not apply because the property was found in the woods where

several people had access; (2) the bag that was recovered was not

necessarily the same bag that the appellant was seen carrying

into the woods; (3) there was no evidence showing when the items

- 10 -

10
in the bag were stolen or when the appellant was in the store;

(4) the Commonwealth did not negate the possibility that the

items were sold and that the clerk forgot to remove the tags; and

(5) the evidence was insufficient to prove the value for grand

larceny.

We hold that the evidence presented at trial was sufficient

to prove that appellant took five items of women's clothing worth

more than $200 from Lane Bryant without the store's permission

and with the intent to permanently deprive the store of

possession of these goods. The record established that appellant

was at Lane Bryant on the day of the theft. He was seen carrying

a white plastic bag in the mall parking lot while glancing

furtively over his shoulder. He entered a wooded area with the

bag and returned to the parking lot a minute or two later without

it. Detective Capocelli quickly retrieved the bag after the

appellant re-entered the mall. No other white bag was located in

the wooded area, and no other persons were observed there. The

bag contained five articles of women's clothing from Lane Bryant

but no sales receipt, and the store tags were still attached to

the clothing. The record established that, when clothing is

purchased from Lane Bryant, the store's practice is to tear off

the bottom half of the store tag. Detective Louth took the

clothing to the store and an employee valued the items at more

than $300.
The fact finder considered and rejected the facts and

- 11 -

11
inferences presented by the appellant. See Cook v. Commonwealth,

226 Va. 427, 432, 309 S.E.2d 325, 329 (1983). In addition, the

appellant's false statements to police constitute further

evidence of his guilt. See Walker v. Commonwealth, 25 Va. App.

50, 60, 486 S.E.2d 126, 131 (1997). The evidence was sufficient

to find the appellant guilty of grand larceny. We find no error.

For the foregoing reasons, the trial court's decision is

affirmed.
Affirmed.

- 12 -

12
Benton, J., dissenting.

A person "who has been detained . . . [by the police and is]

thereafter . . . subjected to treatment that renders him 'in

custody' for practical purposes, [is] entitled to the full

panoply of protections prescribed by Miranda." Berkemer v.

McCarty, 468 U.S. 420, 440 (1984). The detention becomes

"custodial" for purposes of Miranda whenever the person has his

or her "freedom of action . . . curtailed to a 'degree associated

with formal arrest.'" Id. (citation omitted).

Furthermore, whether a person is "in custody" within the

meaning of Miranda turns upon "how a reasonable [person] in the

suspect's position would have understood his situation." Id. at

442. "Thus, a suspect is 'in custody' when the objective

circumstances would lead a reasonable person to believe he was

under arrest, thereby subjecting him or her to pressure impairing

the free exercise of the privilege against self-incrimination."

Cherry v. Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242, 245

(1992). "[T]he initial determination of custody depends on the

objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating officers or

the person being questioned." Stansbury v. California, 511 U.S.

318, 323 (1994).
Among the factors that must be considered are
whether a suspect is questioned in familiar
or neutral surroundings, the number of police
officers present, the degree of physical
restraint, and the duration and character of
the interrogation. Whether or when probable
cause to arrest exists and when the suspect

- 13 -

13
 becomes the focus of the investigation are
relevant facts to consider. "[T]he language
used by the officer to summon the individual,
the extent to which he or she is confronted
with evidence of guilt, the physical
surroundings of the interrogation, the
duration of the detention and the degree of
pressure applied to detain the individual"
may be significant factors as well.

Wass v. Commonwealth, 5 Va. App. 27, 32-33, 359 S.E.2d 836, 839

(1987) (citations omitted).

When Angelo Ford left the shopping mall, he was stopped on

the street by four police officers, three of whom were in uniform

and armed with weapons. The officers arrived in four separate

police vehicles with their blue emergency lights activated to

effect the stop. The officer who detained and questioned Ford

testified that Ford was not free to leave. Furthermore, the

circumstances certainly proved that Ford was not free to

terminate the encounter.
When the police initially stopped Ford, they did so based

upon an officer's specific identification of Ford as the person

who went into the wooded area behind the shopping mall and hid a

bag containing items with intact store tags. Thus, when the

officers detained Ford, the investigation had not only focused on

Ford but had particularly identified the Lane Bryant clothing

store as the place from which the items originated.

During the detention, Ford was questioned about his

identity. After the officers questioned Ford about his identity,

the officers then repeatedly questioned Ford for an "explanation

- 14 -

14
[of] the activity that [the officer] witnessed . . . inside the

[mall's] parking lot." Ford was questioned about those events

for thirty minutes. In addition to the extensive questioning,

the police detained Ford to allow two store workers to be brought

separately from Lane Bryant to view Ford.

Based on the length of the detention, the number of police

officers involved, the nature and repetition of the questions

being asked, and the fact that the investigation had focused on

Ford, I would hold that the circumstances of the detention and

questioning constituted a custodial interrogation. The

questioning of Ford was initiated before he was viewed by the

store employees. Furthermore, the questioning was designed at

the outset to produce incriminating statements from the precise

person whom the officer had seen engaging in conduct that the

officer believed was criminal. Only after Ford made statements

in response to repeated questioning did the officers inform Ford

of his Miranda rights.

The totality of the objective circumstances in this case

would lead a reasonable person in Ford's position to believe he

or she was under arrest. See Cherry, 14 Va. App. at 139, 415

S.E.2d at 245. The detention was not of a short duration but

lasted thirty minutes. A reasonable person in Ford's position

would clearly have felt he or she was unable to leave and that he

or she was, in fact, "in custody." The only reasonable

assumption to draw from this record is that if Ford had attempted

- 15 -

15
to leave, he would have been formally arrested. This detention

was the "functional equivalent of formal arrest," Berkemer, 468

U.S. at 442, and created a custodial situation requiring

appropriate Miranda warnings.

A person in police custody "must be warned that he has a

right to remain silent, that any statement he does make may be

used as evidence against him, and that he has a right to the

presence of an attorney." Miranda v. Arizona, 384 U.S. 436, 444

(1966). Statements made by an accused during custodial

interrogation and without proper Miranda warnings are
inadmissible as evidence. See Dean v. Commonwealth, 209 Va. 666,

667-68, 166 S.E.2d 228, 230 (1969).

Because Ford was not warned of his Miranda rights prior to

the questioning that led to his incriminating statements, I would

hold that the statements were obtained in violation of Ford's

Fifth Amendment rights and that all the evidence derived from his

statements was tainted under the rule of Wong Sun v. United
States, 371 U.S. 471, 488 (1963). Because the statements and

evidence should have been suppressed, I dissent.

- 16 -

16