COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judges Duff and Hodges
Argued at Alexandria, Virginia
RONNELL WALLACE
OPINION BY
v. Record No. 0585-99-2 JUDGE ROSEMARIE ANNUNZIATA
MAY 23, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Charles L. McCormick, III, Judge
James T. Maloney (Joseph D. Morrissey;
Morrissey & Hershner, P.L.C., on brief), for
appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant, Ronnell Wallace, entered guilty pleas on the
charges of driving under the influence, driving after having
been declared an habitual offender, and possession of cocaine
with the intent to distribute, reserving his right to appeal the
trial court's ruling on his motion to suppress, the issue
presented here. 1 For the reasons that follow, we affirm.
1
Wallace was also convicted of assault and battery, which
was among the enumerated bases for appeal in his petition to
this Court. Although a three-judge panel granted the petition,
Wallace failed to brief the question. The issue is thus waived.
See Jenkins v. Commonwealth, 244 Va. 445, 423 S.E.2d 360 (1992);
Fitzgerald v. Bass, 6 Va. App. 38, 366 S.E.2d 615 (1988).
BACKGROUND
When an appellate court reviews a trial court's denial of a
motion to suppress, the court must view the facts in the light
most favorable to the prevailing party below and grant to that
party all reasonable inferences that are fairly deducible from
the evidence. See Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991). On appeal, we are bound by the
trial court's findings of historical fact unless the findings
are plainly wrong or without evidence to support them. See
McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261
(1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690,
699 (1996)).
In December, 1997, State Police Trooper R.A. Ruiz was
traveling west on Route 47, just outside the town limits of
South Hill, Virginia, when he observed Wallace traveling in the
opposite direction. Ruiz noted that Wallace was driving well
below the posted speed limit. Ruiz saw Wallace drift once "to
the right-hand side crossing the white line, or the fog line, on
the right side of the road," and decided to continue observing
Wallace to determine whether he was driving while intoxicated.
After Ruiz turned his car to follow Wallace, Wallace
accelerated, and Ruiz increased his following speed to match.
Wallace then made a right turn without signaling, and Ruiz
observed that Wallace continued accelerating as he went through
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the turn, as indicated by a "weight transfer" at the rear of the
vehicle, the right rear shifting up as the left rear shifted
down in the course of the turn. Ruiz was approximately 400 feet
behind the vehicle at this point. Wallace made "another abrupt
turn" without signaling, giving rise again to the weight shift
earlier noted. Wallace was not speeding, however, and Ruiz's
vehicle was the only car following Wallace into the turns, some
400 feet away. There is no evidence that Wallace ever lost
control over the vehicle.
Wallace made a third abrupt turn into a private driveway
without using a turn signal and turned the vehicle's lights off.
Ruiz, who was two or three houses away from Wallace when he made
the turn, pulled into the driveway behind Wallace, activated his
emergency lights, exited his cruiser, and approached Wallace's
vehicle.
Ruiz determined that Wallace was the operator of the
vehicle. In response to the trooper's request, Wallace produced
a registration card for the vehicle but could not produce a
driver's license. When Ruiz asked him his name, Wallace
identified himself as "Stevey Edmonds."
Based on the odor of alcohol Ruiz detected in the course of
his conversation with Wallace, Ruiz had Wallace step out of his
vehicle and sit with Ruiz inside the police cruiser. There,
Ruiz administered a number of field sobriety tests, which
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Wallace could not successfully complete. Ruiz also had the
state police dispatcher conduct a check on the name provided to
him by Wallace, and the dispatcher determined that the license
issued to Stevey Edmonds had been suspended. Ruiz decided to
conduct further agility tests outside the vehicle. Because
Wallace complained of being cold during the tests inside the
cruiser, Ruiz offered to retrieve Wallace's coat from his
vehicle before performing the agility tests. Wallace agreed,
and Ruiz retrieved Wallace's coat from the vehicle. To check
for weapons, Ruiz patted down the outside of the coat and felt a
hard object in the right-hand pocket. Ruiz retrieved the object
to determine if it was a weapon, and found what appeared to be a
bag of cocaine powder, crack cocaine and marijuana. Ruiz placed
the bag in his pants pocket and returned, with the coat, to the
cruiser. Wallace acknowledged the coat belonged to him.
DISCUSSION
The Commonwealth contends that because Wallace stopped his
car before Ruiz activated his emergency lights, Wallace was not
"seized" within the meaning of the Fourth Amendment. We
disagree. While no Virginia appellate court has addressed this
question, a number of our sister states have established that if
an officer stops his police cruiser behind a parked vehicle to
conduct an investigation and activates his cruiser's flashing
lights before he approaches the vehicle, an ensuing encounter
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with the vehicle's occupants will be construed as a seizure for
Fourth Amendment purposes. See Lawson v. Maryland, 707 A.2d
947, 951 (Md. Ct. Spec. App. 1998); Oregon v. Walp, 672 P.2d 374
(Or. Ct. App. 1983); Washington v. Stroud, 634 P.2d 316 (Wash.
Ct. App. 1981). "[T]he test for existence of a 'show of
authority' is an objective one: not whether the citizen
perceived that he was being ordered to restrict his movement,
but whether the officer's words and actions would have conveyed
that to a reasonable person." California v. Hodari D., 499 U.S.
621, 628 (1991); see United States v. Mendenhall, 446 U.S. 544,
554 (1980) (a Fourth Amendment seizure occurs when, in view of
all surrounding circumstances, "a reasonable person would not
have believed that he was free to leave"). A driver in
Wallace's position, with Ruiz's cruiser parked behind him and
its emergency lights flashing, would reasonably have believed he
or she was not free to leave the scene. Thus, Wallace was
seized within the meaning of the Fourth Amendment.
"'Ultimate questions of reasonable suspicion and probable
cause' . . . involve questions of both law and fact and are
reviewed de novo on appeal." McGee, 25 Va. App. at 197-98, 487
S.E.2d at 261 (quoting Ornelas, 517 U.S. at 691). In performing
this Fourth Amendment analysis, "we are 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
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inferences drawn from those facts by resident judges and local
law enforcement officers." Id. (citing Ornelas, 517 U.S. at
699).
The trial court found that Wallace's "attempt to elude"
Officer Ruiz, viewed in conjunction with other evidence before
the court, justified the stop. 2 We find no error in the court's
decision. "[W]hether [a] stop was justified is dependent upon
whether 'the facts available to the officer at the moment of the
seizure or the search [would] warrant a man of reasonable
caution in the belief that the action was appropriate.'"
Quigley v. Commonwealth, 14 Va. App. 28, 32, 414 S.E.2d 851,
853-54 (1992) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968))
(internal quotation omitted). See also Illinois v. Wardlow, 120
S. Ct. 673, 676 (2000) ("[F]light . . . is the consummate act of
evasion: it is not necessarily indicative of wrongdoing, but it
is certainly suggestive of such.").
2
The trial court stated its finding as follows:
Viewing the evidence as a whole, it's not
the reasonable articulable suspicion to
stop, with the particular –- with respect to
what I consider to be driving to elude. It
was the trooper's opinion that this car
-- that this defendant was driving to elude.
And . . . the defendant himself admitted
that he was driving to elude. . . . So that
would confirm, in my view, the officer's
suspicion of what he saw.
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Wallace contends the trial court erred as a matter of law
in finding that his "attempt to elude" was sufficient to justify
the stop. He argues that pursuant to Code § 46.2-817, a person
is not considered to be "eluding" unless the person has received
a "visible or audible signal by a law-enforcement officer."
Although Wallace correctly notes that he received no signal to
stop and that his conduct did not violate that statute, his
behavior was nevertheless sufficient to give rise to a
reasonable suspicion of criminal activity. We have previously
observed that evasive behavior in the presence of the police is
a pertinent factor in determining reasonable suspicion. See
Commonwealth v. Eaves, 13 Va. App. 162, 166, 408 S.E.2d 925, 927
(1991) ("Evasive action is a factor which can support an
inference of a consciousness of guilt."); see also Wardlow, 120
S. Ct. at 676. The trial court "[v]iew[ed] the evidence as a
whole," including Wallace's momentary swerve out of the lane of
travel, his initially slow speed followed by sudden acceleration
when Ruiz began to follow him, and his "elusive" series of
sudden turns made without decelerating, followed by his sudden
stop in a residential driveway. This course of conduct, viewed
as a whole, was sufficient to "'warrant a man of reasonable
caution in the belief'" that an investigatory stop was
appropriate. Quigley, 14 Va. App. at 32, 414 S.E.2d at 854
(quoting Terry, 392 U.S. at 21-22). We agree.
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We also find no merit to Wallace's further argument that
the trooper's search of the coat and ultimate retrieval of the
evidence used to convict him was illegal. At the time Ruiz
instructed Wallace to return with him to the state police
cruiser, Ruiz had detected the odor of alcohol on Wallace,
providing Ruiz with reasonable suspicion that Wallace was
driving while intoxicated in violation of Code § 18.2-266. He
was therefore authorized to conduct field sobriety tests on
Wallace to determine whether such a violation had taken place.
In the course of conducting this investigation, Ruiz discovered
that the driver's license issued to "Stevey Edmonds," the name
by which Wallace had identified himself, was expired. Ruiz thus
had probable cause to arrest Wallace for driving in violation of
Code § 46.2-301. When Wallace asked Ruiz to retrieve Wallace's
coat, Ruiz was thus entitled to conduct a pat-down search for
weapons. "[I]f the police have probable cause to effect an
arrest, a limited search may be justified even in the absence of
a formal arrest." Poindexter v. Commonwealth, 16 Va. App. 730,
733-34, 432 S.E.2d 527, 529 (1993) (citing Cupp v. Murphy, 412
U.S. 291, 295-96 (1973) (footnote omitted). "So long as
probable cause to arrest exists at the time of the search . . .
it is unimportant that the search preceded the formal arrest if
the arrest 'followed quickly on the heels of the challenged
search.'" Id. at 733, 432 S.E.2d at 529 (quoting Carter v.
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Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d 505, 506-07
(1990)) (additional citation omitted). The search of Wallace's
coat was therefore lawful.
For these reasons, we affirm the convictions.
Affirmed.
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