COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia
VICTORIA PRICE BROWN
OPINION BY
v. Record No. 2917-96-3 JUDGE JOSEPH E. BAKER
APRIL 7, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge
A. Benton Chafin, Jr. (Brian M. Ely; Chafin
and Chafin, P.C., on briefs), for appellant.
Ruth Ann Morken, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Victoria Price Brown (appellant) appeals from a judgment of
the Circuit Court of Washington County (trial court) that
approved a jury verdict convicting her for obstructing justice by
resisting arrest in violation of Code § 18.2-460. 1 Appellant
1
That section provides:
Obstructing justice.--A. If any person
without just cause knowingly obstructs a
. . . law-enforcement officer in the
performance of his duties as such or fails or
refuses without just cause to cease such
obstruction when requested to do so by such
. . . law-enforcement officer, he shall be
guilty of a Class 2 misdemeanor.
B. If any person, by threats or force,
knowingly attempts to intimidate or impede a
. . . law-enforcement officer, lawfully
engaged in his duties as such, or to obstruct
or impede the administration of justice in
any court, he shall be deemed to be guilty of
a Class 1 misdemeanor.
C. If any person by threats of bodily
harm or force knowingly attempts to
intimidate or impede a . . . law-enforcement
resisted an attempt to arrest her by police officers who were
acting pursuant to a capias issued for another person whose name
was "Vicki R. Edwards, AKA Vicki Edwards Brown." Appellant
contends that because the arrest was unlawful, she had the right
to resist. The Commonwealth asserts that because the attempt to
arrest was made in "good faith," it was lawful and, therefore,
appellant had no right to resist. For the reasons that follow,
we reverse the conviction.
Upon familiar principles, we state the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
The record discloses that on the afternoon of January 11, 1996,
Abingdon Police Officers Hay and Slagle were dispatched to
investigate a "domestic disturbance" at 284 B Street in Abingdon,
the address at which appellant resided. While en route, Hay
received a radio dispatch from Abingdon Police Sergeant Miller
stating that he had "a capias for the subject at this residence."
In fact, Miller had no such capias for appellant's arrest. In
relevant part, the capias to which Miller referred gave the
following authority to arrest:
officer, lawfully engaged in the discharge of
his duty, or to obstruct or impede the
administration of justice in any court
relating to a violation of or conspiracy to
violate § 18.2-248 or § 18.2-248.1(a)(3), (b)
or (c) he shall be guilty of a Class 5
felony.
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ARREST THIS RESPONDENT:
EDWARDS, VICKI R.
506 Lowry Drive, Apt. #1
Abingdon, VA 24210
AKA: Vicki Edwards Brown
W F 8 21 70 5 5 240 BR Br
XXX-XX-XXXX
* * * *
In re/V.
Vicki R. Edwards
The officers testified they knew appellant as Vicki Brown
and thought the capias was for appellant, notwithstanding that
Edwards' address was on the other side of town from appellant's
residence. 2
Officers Hay and Slagle arrived at appellant's house first.
When Sergeant Miller arrived, he gave the capias to Hay. The
officers' statements regarding what happened next vary and
sometimes conflict. Miller said that upon arrival at appellant's
house, they made no investigation "at all" and did not ask for
identification. Hay said that, while at the jail, appellant told
them she thought the capias was for a debt that had been
satisfied; Miller said she made that statement at her residence
as they attempted to serve the capias. Hay said that appellant
began to curse and kick and was sprayed with pepper gas as he was
reading her the warrant; Miller said appellant was not sprayed
until after she "wadded up the warrant and threw it on the
2
There was no evidence that appellant had ever been known as
Vicki Edwards or seen at Edwards' address. Likewise, there was
no evidence that the officers knew appellant as Vicki Edwards
Brown.
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floor." Slagle said Miller read the warrant to appellant; Hay
said he read the warrant to appellant. Miller said appellant
stayed on the couch where she kicked at one of the officers and
that she never stood or jumped up. Slagle claimed appellant
"jumped up" and "swung" at him. Hay contended appellant jumped
up and kicked but did not aim the kick at any officer. Miller
said it was aimed at one of the officers. None of the officers
ever said, "I have a warrant for Vicki R. Edwards, AKA Vicki
Edwards Brown."
It is apparent that the officers knew appellant as "Vicki
Brown" and that while they attempted to execute the capias,
appellant cursed, kicked without making any contact, and resisted
arrest. The Commonwealth concedes that appellant was not the
person named in the capias. Although the officers read the
warrant to appellant, none testified that they specifically told
appellant that the capias showed the warrant was to arrest
"Edwards, Vicki R. . . . AKA Vicki Edwards Brown," as it was in
fact.
When the Commonwealth rested, appellant moved to strike the
evidence against her. Appellant argued that because the capias
was for Vicki R. Edwards, who was shown to reside at an address
different from that of appellant, the attempt to arrest was "a
warrantless arrest," without probable cause, for a misdemeanor
not committed in the officers' presence. Appellant further
argued that, in Virginia, "a person has the absolute right to
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resist an illegal arrest by whatever force is necessary and
reasonable under the circumstances."
The Commonwealth contends that, notwithstanding the
officers' arrest of the wrong person, because the arrest was made
in good faith, appellant had no right to resist. We disagree.
In Polk v. Commonwealth, 4 Va. App. 590, 596, 358 S.E.2d
770, 773 (1987), this Court clearly established that "an
individual is not entitled to resist a lawful arrest." All
authorities are in agreement on this legal principle.
Contending that the arrest was lawful, the Commonwealth
cites several cases holding that erroneous arrests were held to
be lawful when made in "good faith." See, e.g., Hill v.
California, 401 U.S. 797 (1971); DeChene v. Smallwood, 226 Va.
475, 311 S.E.2d 749 (1984); Yeatts v. Minton, 211 Va. 402, 177
S.E.2d 646 (1970); Barnette v. Commonwealth, 23 Va. App. 581, 478
S.E.2d 707 (1996); Shears v. Commonwealth, 23 Va. App. 394, 477
S.E.2d 309 (1996). None of these cases address the specific
issue before us. For example, in Hill, Shears, and Barnette, the
issue was whether, when the officers arrested the defendants
erroneously but in good faith, the evidence of contraband found
during the search that followed the arrest should have been
suppressed. DeChene and Yeatts merely held that where the
erroneous arrests were made in good faith, the officers could not
be held liable for civil damages. Here, the issue is whether, or
to what extent, an arrestee may resist an arrest claimed to have
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been made in "good faith" but made without a lawful warrant or
probable cause to arrest for a misdemeanor not committed in the
presence of the arresting officers.
In Virginia, authorization to make a warrantless arrest is
limited to those situations provided for in the Code of Virginia.
See Code §§ 19.2-77, 19.2-81, 19.2-100. The lawfulness of an
attempted arrest is determined by those code sections. See Foote
v. Commonwealth, 11 Va. App. 61, 65, 396 S.E.2d 851, 854 (1990)
(citing Code § 19.2-81). Appellant's arrest was not made
pursuant to any of the cited code sections.
Cases that protect police officers from civil liability or
that apply the good faith exception to the exclusionary rule to
evidence acquired pursuant to an erroneous arrest are not
controlling.
It has long been held in Virginia that where an officer
attempts an unlawful arrest, the officer is an aggressor which
gives the arrestee the right to use self-defense to resist so
long as the force used is reasonable. See id. at 69, 396 S.E.2d
at 856; see also Annotation, Modern Status of Rules as to Right
to Forcefully Resist Illegal Arrest, 44 A.L.R. 3d 1078 (1972).
"[T]he amount of force used [always] must be reasonable in
relation to the harm threatened." Diffendal v. Commonwealth, 8
Va. App. 417, 421, 382 S.E.2d 24, 26 (1989).
When the issue on appeal is whether there is sufficient
evidence to support a criminal conviction, we view conflicting
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evidence in the light most favorable to the Commonwealth.
However, when the issues are the lawfulness of an arrest and the
reasonableness of force used to resist an unlawful arrest, the
ultimate questions involve law and fact and are reviewed de novo
on appeal. See Foote, 11 Va. App. at 65, 396 S.E.2d at 853-54;
see also McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United
States, 517 U.S. 690 (1996)).
The Commonwealth's evidence relevant to the confrontation
conflicts. One officer, Sergeant Miller, the supervisor who had
the capias in his vehicle, testified that appellant did not jump
from the sofa but instead that her entire resistance was by
cursing and kicking while remaining seated on the sofa. Hay, who
had been given the capias to read to appellant, said that
appellant "jumped" from the sofa and kicked, but that the kicking
was not "aimed" at any of the officers. None of those acts
constituted the use of unreasonable force to resist an unlawful
arrest.
Moreover, even a casual reading of the capias discloses that
the officers were authorized to arrest only Vicki R. Edwards or a
person sometimes known as Vicki Edwards Brown. Careless reading
of the capias cannot divest a wrongly accused person of a right
otherwise possessed by law. The officers' mistaken belief that
appellant was the person named in the capias did not make the
capias an instrument upon which the police could lawfully arrest
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appellant, even if that mistake was made in good faith.
The police officers became aggressors when they attempted to
arrest a person not named in the capias upon which they relied
for the arrest, and they were at fault in the confrontation. See
Foote, 11 Va. App. at 69, 396 S.E.2d at 856. Appellant was not
required to surrender to the officers based on the capias issued
for another person's arrest. Because the arrest was unlawful,
appellant had the right to resist upon self-defense principles.
The Commonwealth cannot expunge that right even by showing the
officers acted in "good faith."
Accordingly, for the reasons stated, we reverse the judgment
of the trial court and dismiss appellant from further prosecution
on the charge.
Reversed and dismissed.
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