Barry Scott Hill v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia
BARRY SCOTT HILL
MEMORANDUM OPINION * BY
v. Record No. 0405-00-3 JUDGE ROBERT J. HUMPHREYS
MARCH 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Diane McQ. Strickland, Judge
Deborah Caldwell-Bono for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Barry Scott Hill appeals his conviction, after entering a
conditional guilty plea, for possession of a firearm after having
been convicted of a felony. Hill contends that the trial court
erred in failing to suppress the evidence against him, which he
argues was obtained as a result of an illegal stop and seizure.
"At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant's Fourth Amendment
rights." Reel v. Commonwealth, 31 Va. App. 262, 265, 522 S.E.2d
881, 882 (2000). "[However,] [i]t is well established that, on
appeal, appellant carries the burden to show, considering the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
evidence in the light most favorable to the Commonwealth, that
the denial of a motion to suppress constitutes reversible
error." Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437
S.E.2d 232, 233 (1993). "Ultimate questions of reasonable
suspicion and probable cause . . . involve questions of both law
and fact and are reviewed de novo on appeal. This Court is
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 inferences drawn from those facts by resident
judges and local law enforcement officers." Neal v.
Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d 422, 424 (1998)
(citations omitted).
Prior to trial, Hill submitted a motion to suppress the
evidence against him arguing that it was seized in violation of
the "rights afforded him by the United States Constitution and
in violation of the Constitutional Rights afforded him by the
Commonwealth of Virginia." The evidence presented during the
hearing on the motion established that on September 20, 1999,
Vinton Police Officer John R. Munsey received a "be on the
lookout" dispatch while he was patrolling the streets of Vinton
in his patrol car. The dispatch alerted officers to watch for a
"blue Toyota pickup truck" with Virginia license plate "LEGO-2."
Officer Munsey testified, without objection, that the dispatcher
told him the request was based upon information from the Roanoke
City Police Department indicating that a Roanoke police officer
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was taking a report from a complainant regarding a crime of
brandishing a firearm in the City of Roanoke.
Shortly thereafter, the vehicle driven by Hill pulled out
of a fast-food restaurant parking lot, in front of Officer
Munsey's patrol car. The description of the vehicle and the
license plate matched the description given in the dispatch.
Officer Munsey stopped the vehicle and identified the driver as
Hill. Officer Munsey then asked Hill if there were any firearms
in the vehicle, and Hill informed the officer that there was a
gun in the truck.
At a hearing on his motion, Hill argued that the arrest was
illegal pursuant to Code § 19.2-81, which applies to warrantless
arrests. 1 After the Commonwealth responded in argument that the
incident involved an investigatory stop, as opposed to an
arrest, Hill then argued that the incident "fell short of even a
constitutional Terry stop to be on the lookout for a vehicle
because a person is making a complaint." The trial court
overruled the motion to suppress finding that there was no
"arrest at the point the stop was made" and that even if there
was an "arrest," there was no constitutional violation which
1
Code § 19.2-81 provides the following, in pertinent part,
"[s]uch officers may arrest, without a warrant, any person who
commits any crime in the presence of the officer and any person
whom he has reasonable grounds or probable cause to suspect of
having committed a felony not in his presence . . . ."
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would require suppression of the evidence. We agree with the
trial court.
We first note that, on appeal, Hill does not raise the
issue of whether the stop constituted an "arrest" falling within
the purview of Code § 19.2-81, despite his focus on this
contention before the trial court. Instead, Hill expands upon
his brief argument to the trial court that the incident fell
short of a constitutional investigatory stop.
[W]hen the police stop a motor vehicle and
detain an occupant, this constitutes a
seizure of the person for Fourth Amendment
purposes. In order to justify an
investigatory stop of a vehicle, the officer
must have some reasonable, articulable
suspicion that the vehicle or its occupants
are involved in, or have recently been
involved in, some form of criminal activity.
To determine whether an officer has
articulated a reasonable basis to suspect
criminal activity, a court must consider the
totality of the circumstances, including the
officer's knowledge, training, and
experience.
Neal, 27 Va. App. at 237, 498 S.E.2d at 424 (citations omitted).
"[W]hether [a] stop [i]s 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." Jackson
v. Commonwealth, 22 Va. App. 347, 352, 470 S.E.2d 138, 141
(1996) (citations omitted). However, "[t]he mere broadcast by
the police to be on the lookout for an individual, without more,
does not provide a patrol officer receiving such broadcast
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articulable and reasonable suspicion that criminal activity is
afoot." Motley, 17 Va. App. at 440-41, 437 S.E.2d at 233
(because there was no evidence presented at the suppression
hearing explaining the reason for the police broadcast, the
source or reliability of the information received, or any
corroboration by the arresting officer, the officer had no basis
to conduct a Terry stop).
Here, however, Officer Munsey based his stop of Hill's
vehicle on more than a "mere broadcast by the police to be on
the lookout for an individual." Officer Munsey was told to be
on the lookout for a vehicle of a specific description,
including the full license plate number. He was further
informed that the reason for the police dispatch was that a
Roanoke City police officer was "taking a report from a
complainant at the time" of the dispatch and that the basis of
the complaint was a brandishing of a firearm incident that had
occurred in Roanoke City. From this, Officer Munsey could
reasonably infer that the officer was taking the information in
a face-to-face interview with the complainant and that Hill, who
was driving the vehicle specifically described in the dispatch,
had been involved in the crime. At that point, Officer Munsey
had reason to stop Hill "for purposes of investigating possibly
criminal behavior, and in the course of the investigation
[Officer Munsey could] make reasonable inquiries . . . in order
to determine [Hill's] identity or to maintain the status quo
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momentarily while obtaining more information." Jones v.
Commonwealth, 230 Va. 14, 19, 334 S.E.2d 536, 540 (1985)
(citations omitted).
Thus, viewing the evidence in the light we must, we affirm
the trial court's holding that no constitutional violation
occurred and that there was, therefore, no basis upon which to
require suppression of the evidence obtained as a result of the
stop.
Affirmed.
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