COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Powell
Argued at Chesapeake, Virginia
KEVIN MARSHALL DAVIS
MEMORANDUM OPINION * BY
v. Record No. 1494-09-1 JUDGE CLEO E. POWELL
JULY 20, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Karen J. Burrell, Judge
Robert H. Knight, III, Assistant Public Defender (J. Barry
McCracken, Assistant Public Defender; Office of the Public
Defender, on brief), for appellant.
John W. Blanton, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Kevin Marshall Davis (“Davis”) was convicted of possession of cocaine, in violation of
Code § 18.2-250. On appeal, Davis contends that Officer Herbst lacked reasonable, articulable
suspicion to justify an investigatory detention of him because the information provided by the
dispatcher was “so nonspecific as to provide no reliable basis to take any actions based on the
officer’s own observations” and the victim provided no “specific information . . . on which to
form a reasonable basis to assume criminal activity on the part of” Davis. He also asserts that
Officer Herbst violated the Fourth Amendment by continuing into his residence to effectuate a
Terry stop when Officer Herbst stuck his hand into the closing front door without an exigent
circumstance to justify such action. Davis further contends that the stop exceeded the scope of a
Terry stop when he was handcuffed and placed in the police cruiser. Finally, Davis argues that
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
under Dixon v. Commonwealth, 270 Va. 34, 613 S.E.2d 398 (2005), Officer Herbst was required
to inform Davis of his Miranda rights and because Officer Herbst questioned Davis without
advising Davis of these rights, the statements Davis made should be suppressed. For the reasons
that follow, we disagree with Davis’s arguments and affirm his conviction.
I. BACKGROUND
On July 18, 2008, Officer Thomas John Herbst of the Norfolk Police Department was
dispatched to an apartment building on Orchid Street 1 based on a report of an assault in progress.
When he arrived, Officer Herbst saw a female jumping up and down. The woman was
screaming and pointing in the direction of a man, who was later identified as Davis, walking
away. She told Officer Herbst that the man hit her. The woman was disheveled and had an
abrasion on her right forearm.
Officer Herbst, who was approximately fifteen feet away from Davis at the time, yelled,
“stop police.” Although Officer Herbst made repeated requests for Davis to stop, Davis
continued walking. As Davis stepped inside an apartment building and the door began to close,
Officer Herbst stopped the door with his hand. The officer asked Davis to step outside, which he
did, and to sit down, which he refused to do.
When Davis stepped outside, Officer Herbst noticed that Davis “had a strong smell of
alcoholic beverage on him and a white powder substance on the top of his nose and on his lip
and even inside his nose.” Based upon his training and experience, Officer Herbst believed this
substance was powder cocaine. Officer Herbst told Davis that he was going to detain him for
further investigation and placed him in handcuffs in the police vehicle. Davis told the officer “he
got his drink going and ran some dope.”
1
Officer Herbst also identified this location as Orchid Avenue.
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In advance of trial, Davis filed a written motion to suppress alleging
that no probable cause or reasonable suspicion existed to seize
him, search his person and arrest him. Such seizure and arrest
being in violation of the Fourth Amendment as aforestated [sic].
The Defendant further represents that any statements attributed to
him were involuntary, that he was not advised of his Constitutional
rights prior to his custodial interrogation in violation of the Fifth
and Sixth Amendments, as aforestated [sic] and that all matters
seized pursuant to the seizure and detention, are “fruits of the
poisonous tree” and therefore must be suppressed.
At the hearing on the motion to suppress, 2 Davis made no argument in support of dismissing
and, in response to questioning from the trial court, stated that the only issue was the validity of
the arrest and agreed with the court that “[i]f the arrest was valid, everything comes in.” The
trial court denied Davis’s motion. Following a bench trial, the trial court convicted Davis of
possession of cocaine.
II. ANALYSIS
A. Whether the Officer Violated the Fourth Amendment
On appeal, Davis contends that Officer Herbst violated his Fourth Amendment rights
because Officer Herbst lacked reasonable, articulable suspicion to believe that Davis assaulted
the woman. Davis also argues that Officer Herbst’s actions violated the Fourth Amendment
because Officer Herbst exceeded the scope of a Terry stop when he entered Davis’s residence
and when he placed Davis in handcuffs in the back of the police car.
“In reviewing a trial court’s denial of a motion to suppress, ‘[t]he burden is upon [the
defendant] to show that th[e] ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.’” McGee v. Commonwealth, 25 Va. App. 193,
197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007,
1010, 265 S.E.2d 729, 731 (1980)). While we are bound to review de novo the ultimate
2
The motion to suppress hearing was held before Judge Charles E. Poston.
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questions of reasonable suspicion and probable cause, we “review findings of historical fact only
for clear error 3 and . . . give due weight to inferences drawn from those facts by resident judges
and local law enforcement officers.” Ornelas v. United States, 517 U.S. 690, 699 (1996)
(footnote added).
“In order for a seizure to occur, an individual must be under some physical restraint by an
officer or have submitted to the show of police authority.” Thomas v. Commonwealth, 24
Va. App. 49, 54, 480 S.E.2d 135, 137 (1997) (en banc). Here, Officer Herbst repeatedly asked
Davis to stop, but Davis disregarded the officer’s commands. Officer Herbst did not touch
Davis. Thus, Davis was not seized until he submitted to Officer Herbst’s authority by stepping
out of his apartment building when Officer Herbst ordered that he do so.
At the time that Davis submitted to Officer Herbst’s show of authority, Officer Herbst
had probable cause to arrest Davis.
[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.’” Buhrman v. Commonwealth, 275 Va. 501, 505, 659
S.E.2d 325, 327 (2008) (quoting Taylor v. Commonwealth, 222
Va. 816, 820, 284 S.E.2d 833, 836 (1981)); Robinson v.
Commonwealth, 273 Va. 26, 40, 639 S.E.2d 217, 225 (2007);
Parker v. Commonwealth, 255 Va. 96, 106, 496 S.E.2d 47, 53
(1998). In determining whether a police officer had probable
cause to arrest a defendant, a trial court must consider the totality
of the facts and circumstances presented and what those facts and
circumstances reasonably meant to a trained police officer.
Buhrman, 275 Va. at 505, 659 S.E.2d at 327; Brown v.
Commonwealth, 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005);
Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889
(1976).
Jones v. Commonwealth, 279 Va. 52, 59, 688 S.E.2d 269, 273 (2010).
3
“In Virginia, questions of fact are binding on appeal unless ‘plainly wrong.’” McGee, 25
Va. App. at 198 n.1, 487 S.E.2d at 261 n.1 (citations omitted).
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Contrary to Davis’s allegation that nothing supported the assertion that Davis assaulted
the woman, the evidence, viewed in the light most favorable to the Commonwealth, proved that
Officer Herbst responded to a report of an assault in progress, and when he arrived, he
encountered a woman who was jumping up and down, screaming, and pointing in the direction
of Davis. She told Officer Herbst that the man had hit her. The woman was disheveled and had
an abrasion on her right forearm. Officer Herbst attempted to detain Davis to investigate
whether he was the man who assaulted the woman, but he refused to stop. As Davis stepped
inside the main door to his apartment building and the door began to close, Officer Herbst
stopped the door with his hand. 4 He asked Davis to step outside, which he did. At that time,
Officer Herbst noticed that Davis “had a strong smell of alcoholic beverage on him and a white
powder substance on the top of his nose and on his lip and even inside his nose.” Officer Herbst
observed that Davis was “out of breath and disheveled.” Based on his observations and the
woman’s statement that Davis hit her, Officer Herbst had probable cause to arrest Davis for
assault. Moreover, upon seeing white powder on Davis’s face and in his nose, Officer Herbst,
based upon his training and experience, had probable cause to arrest Davis for possession of
powder cocaine. Therefore, Officer Herbst’s actions in handcuffing Davis and placing him in the
police car did not violate the Fourth Amendment, and the trial court did not err in denying
Davis’s motion to suppress.
4
Davis contends that Officer Herbst exceeded the scope of a Terry stop by entering his
apartment. “[A] suspect may not defeat an arrest which has been set in motion in a public
place . . . by the expedient of escaping to a private place.” United States v. Santana, 427 U.S. 38,
43 (1976); see Washington v. Commonwealth, 29 Va. App. 5, 15, 509 S.E.2d 512 (1999). As
Officer Herbst had probable cause to arrest Davis and not merely a reasonable, articulable
suspicion to detain Davis for questioning, Davis’s argument is without merit.
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B. Whether Davis’s Statements Should Be Suppressed Because He Was
Not Read His Miranda Rights Prior to Being Interrogated
Rule 5A:18 mandates that “[n]o ruling of the trial court . . . will be considered as a basis
for reversal unless the objection was stated together with the grounds therefor at the time of the
ruling . . . .” 5 “In order to preserve an issue for appeal, ‘an objection must be timely made and
the grounds stated with specificity.’” McDuffie v. Commonwealth, 49 Va. App. 170, 177, 638
S.E.2d 139, 142 (2006) (quoting Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d
167, 168 (1986)). “To satisfy the rule, ‘an objection must be made . . . at a point in the
proceeding when the trial court is in a position, not only to consider the asserted error, but also to
rectify the effect of the asserted error.’” Scialdone v. Commonwealth, 279 Va. 422, 437, 689
S.E.2d 716, 724 (2010) (quoting Johnson v. Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731
(2002)). Rule 5A:18 exists “‘to protect the trial court from appeals based upon undisclosed
grounds, to prevent the setting of traps on appeal, to enable the trial judge to rule intelligently,
and to avoid unnecessary reversals and mistrials.’” Reid v. Boyle, 259 Va. 356, 372, 527 S.E.2d
137, 146 (2000) (quoting Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52
(1988)). The Supreme Court of Virginia has consistently focused on whether the trial court had
the opportunity to rule intelligently on the issues. Scialdone, 279 Va. at 437, 689 S.E.2d at 724.
“If [the] opportunity [to address an issue] is not presented
to the trial court, there is no ruling by the trial court on the issue,
and thus no basis for review or action by this Court on appeal.”
Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d
416, 420 (2006). An appellate court can only “determine whether
5
Effective July 1, 2010, Rule 5A:18 was revised to state that “[n]o ruling of the trial
court . . . will be considered as a basis for reversal unless an objection was stated with reasonable
certainty at the time of the ruling . . . .” Because the proceedings below were completed prior to
this revision taking effect, we will rely on the language of Rule 5A:18 that was then in effect.
See Fails v. Virginia State Bar, 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the
Rule of Court in effect at the time of the proceedings below).
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or not the rulings and judgment of the court below . . . were
correct.” Jackson, 179 Va. at 651, 20 S.E.2d at 493.
Id.
Here, the trial court asked Davis a number of questions at the outset of the motion to
suppress to try to clarify what Davis meant in the vague motion to suppress that he filed.
Specifically, the trial court asked Davis if his argument was solely that “[i]f the arrest was valid,
everything comes in?” Davis agreed that it was. In so doing, Davis deprived the trial court of
the opportunity to rule intelligently on whether a Miranda violation occurred. See Scialdone,
279 Va. at 437, 689 S.E.2d at 724. As this issue is not properly preserved, we decline to
consider it.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s denial of Davis’s motion to suppress
because, based on the totality of the facts and circumstances when viewed in the light most
favorable to the Commonwealth, Officer Herbst had probable cause to arrest Davis. We
conclude that Davis failed to preserve his argument that his rights under the Fifth Amendment
were violated, and therefore, we decline to consider the issue.
Affirmed.
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Kevin Marshall Davis v. Commonwealth of Virginia
Combined Opinion