Reva Nicole English v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Chaney, Raphael and Callins
UNPUBLISHED
Argued at Richmond, Virginia
REVA NICOLE ENGLISH
MEMORANDUM OPINION* BY
v. Record No. 0470-22-2 JUDGE STUART A. RAPHAEL
FEBRUARY 21, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Ricardo Rigual, Judge
Andrew J. Cornick (Andrew J. Cornick, LLC, on brief), for
appellant.
Rebecca M. Garcia, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Appellant Reva Nicole English appeals her conviction following a jury trial for assault
and battery on a law-enforcement officer in violation of Code § 18.2-57. She claims that her
arrest was unlawful and argues that the common law permitted her to use reasonable force to
resist. The trial court rejected that argument, concluding that English had only been detained,
not arrested. Applying Commonwealth v. Hill, 264 Va. 541 (2002), the court concluded that the
common-law privilege to use reasonable force to resist an unlawful arrest did not apply to her
detention. We affirm on different grounds. Assuming without deciding that English was
arrested, we conclude that her arrest was not unlawful because it was supported by probable
cause. Thus, she did not have the right to resist a lawful arrest.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND1
Shortly before 9:00 p.m. on January 12, 2019, Bonita Hernandez called 911 to report a
domestic assault. She said that English had used a bottle to hit her brother, Randall Branch, and
that, to defend Branch, Hernandez had struck English with a flashlight. Hernandez also said that
English was intoxicated. Spotsylvania County Sheriff’s Deputy Kenneth Camp was dispatched
to Hernandez’s residence to investigate.2 The dispatcher relayed Hernandez’s report and further
informed Camp of English’s criminal record, which included multiple convictions for crimes of
violence. Using DMV records, the dispatcher also provided English’s “[h]eight, weight, skin
color, [and] eye color.”
At 9:07 p.m., Deputy Camp found English walking along the road, about a tenth of a mile
from the residence. Snow had fallen that night, the temperature was below freezing, and English
wore only a light hoodie, pants, and a shirt. She appeared to have been in a fight. She held a
paper towel to her eyebrow, nursing a head injury, and she had blood on her chest.
Deputy Camp approached English to confirm her identity and asked if she needed help.
English gave her name but denied needing medical attention. Camp radioed for medical
assistance anyway. At 9:10 p.m., Camp “detained” English. He told English that she was
reportedly “the primary aggressor” in the domestic incident. Camp “searched” English, placed
her in handcuffs, and transported her in the backseat of his cruiser to the residence, arriving at
9:15 pm. The record does not reveal the extent of the search performed by Camp.
1
“Under established principles of appellate review, we will state the evidence in the light
most favorable to the Commonwealth, the prevailing party in the trial court, and will accord the
Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.”
Hill, 264 Va. at 543.
2
Camp testified that he was accompanied by a “ride-along” who was in “training.”
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Deputy Jason Hager arrived in his cruiser about a minute later. Camp walked up to the
front door of the residence to speak with Hernandez while Hager stayed by Camp’s patrol car.
Deputy Kyle McGinnis also responded to the scene and joined Camp.
Hernandez repeated to Camp that English had struck Branch with a bottle and that
Hernandez had hit English in the head with a flashlight. But she would not let Camp inside,
claiming that Branch had left. After Camp threatened to charge her with obstruction, however,
Hernandez allowed Camp to search for Branch; he was not there.
In the meantime, Deputy Hager stood by the patrol car, with English sitting in the
backseat. Video from Hager’s body camera was admitted into evidence at trial. Hager testified
that, when he arrived at the scene, he understood that English had not been arrested and was
simply being detained. According to standard procedure, Camp would have informed Hager
upon his arrival if Camp had arrested English.
When Hager asked English if she needed medical attention, English became irate and
repeatedly insulted him. Hager said that he read English her Miranda3 rights to err on the side of
caution. At about 9:24 p.m., Hager noticed that English had slipped out of her handcuffs. He
removed English from the car to put them back on. English asked—“do I [have] to go to an
ambulance, with handcuffs, with my head bleeding?”—to which Hager responded, “yes.” At
about the same time, emergency medical responders arrived to treat English’s injuries, and Camp
returned from the house.
While they all stood outside the patrol car and Hager struggled to “double-lock” the
handcuffs, English became more agitated, yelling racial epithets and profanity, and threatening to
fight Hager. English suddenly turned and “bucked” at him, headbutting his chest and striking
him with her shoulder. She then “mule kicked [his] right knee.”
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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The deputies arrested English for assault on a law-enforcement officer. In total, 23
minutes had elapsed from when English was first detained until she attacked Hager. Deputy
Camp tried but failed to locate Branch. Unable to find the “primary victim,” Camp concluded
his investigation. Camp testified that he would have released English if she had not assaulted
Hager.
A grand jury indicted English for assault on a law-enforcement officer in violation of
Code § 18.2-57(C). Before trial, English moved to dismiss the indictment. She argued that by
handcuffing and searching her, transporting her in a patrol car, and reading Miranda warnings to
her, the deputies effected a de facto arrest without probable cause. English argued that she used
reasonable force to resist that illegal arrest. Alternatively, English asked the trial court to find
that her arrest was unlawful and to let the jury decide whether her resistance was reasonable.
The prosecution responded that English’s seizure was merely an investigatory detention until she
was arrested for assaulting Hager. The circuit court agreed, finding that English had been
“detained clearly for investigative purposes.”
After the close of evidence, the trial court denied English’s motion to strike and again
rejected her claim that her detention was unlawful. The court found that English “was being
detained temporarily” and that “there was an active investigation going on based on a credible
report corroborated by physical evidence that a domestic assault had occurred.” The court noted
that every witness, including English, testified that “she was told that she was being detained and
not arrested.” The court observed that the investigation continued even after English’s arrest for
assaulting Deputy Hager. The court concluded that “the circumstances and length of her
detention were not unreasonable” and there “was no evidence” that her detention was unlawful.
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The jury found English guilty of assaulting a law-enforcement officer, and the court
sentenced her to a year’s imprisonment with five months suspended. English noted a timely
appeal.
ANALYSIS
“[W]hen 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.” Doscoli v. Commonwealth, 66 Va. App. 419, 424-25 (2016) (quoting Brown v. City of
Danville, 44 Va. App. 586, 603 (2004)). We likewise “review de novo whether a police officer
had probable cause to make an arrest.” Id. at 424.
“The common law of England, insofar as it is not repugnant to the principles of the Bill
of Rights and Constitution of this Commonwealth, shall continue in full force within the same,
and be the rule of decision, except as altered by the General Assembly.” Code § 1-200. “Under
the common law, a citizen generally is permitted to use reasonable force to resist an illegal
arrest.” Hill, 264 Va. at 546. “The underlying rationale supporting this common law right is the
‘provocation’ of an illegal arrest, which operates to excuse an assault directed at thwarting the
unlawful arrest.” Id. at 547. “Because of the danger of violence implicated in resisting arrest,
‘the overall trend in a majority of states has been toward abrogation of the common law right to
use reasonable force to resist an unlawful arrest.’” Doscoli, 66 Va. App. at 426 n.2 (quoting Hill,
264 Va. at 548 n.2). But we have recognized that, however wise it might be to change the
common-law rule, “the authority to abrogate the common law rests with the General Assembly
and not with this Court.” Id.Still, the Supreme Court held in Hill that the common-law privilege to use reasonable
force to resist an unlawful arrest does not apply when the person is seized as part of an
investigative detention. 264 Va. at 547. The Court reasoned that an “investigative detention
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constitutes a brief, though not inconsequential, restriction on an individual’s freedom of
movement.” Id. So there is no right to use force to resist a detention, even an “unlawful” one.
Id. at 548.
A. We assume without deciding that English was arrested.
Both sides agree that the threshold question is whether English was detained or arrested
when Camp handcuffed her, placed her in the backseat of his cruiser, and transported her to the
scene of the reported assault on Branch. “During [an investigatory] stop, the individual is not
free to leave, but he is not under arrest.” White v. Commonwealth, 267 Va. 96, 104 (2004).
There can be “difficult line-drawing problems in distinguishing an investigative stop from a de
facto arrest.” United States v. Sharpe, 470 U.S. 675, 685 (1985). No rigid time limitations or
bright-line rules differentiate them. Id. The “scope of the intrusion permitted [during an
investigatory stop] will vary” with each case. Florida v. Royer, 460 U.S. 491, 500 (1983).
When evaluating the suspect’s “custodial status,” a court “must determine ‘how a
reasonable person in the suspect’s situation would have understood his circumstances.’”
Keepers v. Commonwealth, 72 Va. App. 17, 34 (2020) (quoting Alvarez Saucedo v.
Commonwealth, 71 Va. App. 31, 41 (2019)). Courts consider, among other factors, “whether the
police used physical restraints, displayed their weapons, engaged in physical contact, or told the
suspect he was free to leave.” Id. “The number of officers present and whether the police
‘engaged in other incidents of formal arrest such as booking’ are also probative of custodial
status.” Id. (quoting Alvarez Saucedo, 71 Va. App. at 41). Courts may also “consider ‘the extent
to which the officers’ beliefs concerning the potential culpability of the individual being
questioned were manifested to the individual.’” Id. at 35 (quoting Harris v. Commonwealth, 27
Va. App. 554, 565 (1998)). “No single factor is dispositive . . . .” Id. (quoting Aldridge v.
Commonwealth, 44 Va. App. 618, 642 (2004)).
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The Commonwealth argues that Deputy Camp merely detained English pending his
investigation into whether she had assaulted Branch. The Commonwealth notes that both
deputies described English as having been “detained,” not arrested, and that English herself
testified that Deputy Camp told her, “I wasn’t under arrest, but in order to ride in the car that was
procedure for him to put the cuffs on me.” The Commonwealth argues that Deputy Camp’s
“search” of English was not necessarily a search incident to arrest, but a Terry frisk—something
that also qualifies as a Fourth Amendment “search,” albeit one limited to checking for weapons
to protect the safety of the officer and others. Terry v. Ohio, 392 U.S. 1, 27 (1968). The
Commonwealth also points to our opinion in Lawson v. Commonwealth, 55 Va. App. 549(2010), where we said that “[d]rawing weapons, handcuffing a suspect, placing a suspect in a
patrol car for questioning, or using or threatening to use force does not necessarily elevate a
lawful stop into a custodial arrest for Miranda purposes.” Id. at 559 (quoting Harris, 27
Va. App. at 566).
On the other hand, our Supreme Court held in Dixon v. Commonwealth, 270 Va. 34(2005), that the combination of “being restrained in handcuffs and being locked in a police patrol
car” can lead a reasonable person to believe that he has been arrested, thereby triggering his
entitlement to Miranda warnings. Id. at 40-41. The Court said that
[w]hile the presence of either of these factors, in the absence of the
other, may not result in a curtailment of freedom ordinarily
associated with a formal arrest, the presence of both factors
compels the conclusion that a reasonable person subjected to both
restraints would conclude that he was in police custody.
Id. at 41. But see Thomas v. Commonwealth, 16 Va. App. 851, 857-58 (1993) (holding that the
defendant who was handcuffed and transported in the backseat of a police cruiser was detained,
not arrested, when he implicitly consented to be transported to the scene of the reported crime),
aff’d en banc, 18 Va. App. 454 (1994).
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We find it unnecessary to resolve whether English was detained or arrested, however, for
even assuming that English’s detention amounted to an arrest, we conclude below that the arrest
was supported by probable cause. Resolving this appeal on that basis is thus “the best and
narrowest grounds” for the decision. Esposito v. Va. State Police, 74 Va. App. 130, 134 (2022).
B. Probable cause supported English’s arrest for assault and battery.
“While a person is entitled to use reasonable force to resist an unlawful arrest, he is not
entitled to resist a lawful arrest.” McCracken v. Commonwealth, 39 Va. App. 254, 262 (2002)
(en banc). Probable cause for a lawful arrest “exists when the facts and circumstances known to
the officer ‘are sufficient to warrant a person of reasonable caution to believe that an offense has
been or is being committed.’” Park v. Commonwealth, 74 Va. App. 635, 646 (2022) (quoting Al-
Karrien v. Commonwealth, 38 Va. App. 35, 47 (2002)). Although probable cause requires “more
than a ‘mere suspicion,’ it is not necessary for the facts to be ‘sufficient to convict’ the accused
of the offense.” Slayton v. Commonwealth, 41 Va. App. 101, 107 (2003) (quoting Gomez v.
Atkins, 296 F.3d 253, 262 (4th Cir. 2002)). “It ‘requires only a probability or substantial chance
of criminal activity, not an actual showing of such activity.’” District of Columbia v. Wesby, 138
S. Ct. 577, 586 (2018) (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n.13 (1983)). “Probable
cause ‘is not a high bar.’” Id. (quoting Kaley v. United States, 571 U.S. 320, 338 (2014)).
Probable cause “is an objective standard that focuses on the totality of the facts and
circumstances.” Park, 74 Va. App. at 646. “To determine whether an officer had probable cause
for an arrest, ‘we examine the events leading up to the arrest, and then decide “whether these
historical facts, viewed from the standpoint of an objectively reasonable police officer, amount
to” probable cause.’” Wesby, 138 S. Ct. at 586 (quoting Maryland v. Pringle, 540 U.S. 366, 371
(2003)). “[T]he proper inquiry focuses on what an objective officer could reasonably believe.”
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Curley v. Commonwealth, 295 Va. 616, 622 (2018) (alteration in original) (quoting Evans v.
Commonwealth, 290 Va. 277, 287 (2015)).
Sheriff’s deputies may lawfully arrest a suspect “without a warrant for an alleged
misdemeanor not committed in their presence involving . . . assault and battery . . . when any
such arrest is based on probable cause upon reasonable complaint of the person who observed
the alleged offense.” Code § 19.2-81(G).4 The Fourth Amendment does not prohibit arrests for
misdemeanors “committed outside the presence of the arresting state officer.” Penn v.
Commonwealth, 13 Va. App. 399, 407 (1991), aff’d, 244 Va. 218 (1992) (per curiam).5
We find that Deputy Camp had probable cause to arrest English for the reported
misdemeanor assault on Branch. Hernandez told the 911 operator that English hit Branch with a
bottle and that, to defend her brother, Hernandez had struck English with a flashlight. Hernandez
was therefore “the person who observed the alleged offense.” Code § 19.2-81(G). The
dispatcher relayed that report to Deputy Camp and also advised him of English’s multiple
convictions for crimes of violence, as well as English’s height, weight, skin color, and eye color.
See White v. Commonwealth, 24 Va. App. 234, 240 (“[S]o long as the officer . . . has knowledge
of facts establishing probable cause, it is not necessary for the officers actually making the arrest
or conducting the search to be personally aware of those facts.” (quoting United States v.
Laughman, 618 F.2d 1067, 1072 (4th Cir. 1980))), aff’d en banc, 25 Va. App. 662 (1997).
4
See also Code § 18.2-57(A) (“Any person who commits a simple assault or assault and
battery is guilty of a Class 1 misdemeanor . . . .”).
5
Although the Supreme Court of the United States has not yet resolved “whether the
Fourth Amendment entails an ‘in the presence’ requirement for purposes of misdemeanor
arrests,” Atwater v. City of Lago Vista, 532 U.S. 318, 340 n.11 (2001), “lower courts have rather
consistently concluded” that an officer can “make a warrantless arrest on probable cause for a
misdemeanor not occurring in his presence,” 3 Wayne R. LaFave, Search & Seizure: A Treatise
On The Fourth Amendment § 5.1(b) (6th ed. 2022).
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Seven minutes after the 911 call, Deputy Camp encountered English. She was walking
along the snowy road, about a tenth of a mile away from the reported crime scene. English
matched the suspect’s description and correctly identified herself. She was not dressed
appropriately for the inclement weather. English had an injury to her head, consistent with
Hernandez’s report that she had hit English with a flashlight to protect her brother after English
reportedly hit him with a bottle. A reasonable officer could find from those facts “a probability
or substantial chance,” Wesby, 138 S. Ct. at 586, that English had committed an assault and
battery on Branch and was leaving the scene, thus allowing for English’s arrest under Code
§ 19.2-81(G).
To be sure, Deputy Camp and Deputy Hager both testified that they had only “detained”
English, not arrested her. And when Deputy Camp could not locate Branch, he concluded his
investigation, never charging English with the reported assault on Branch. Deputy Camp even
said that he would have released English had she not assaulted Deputy Hager.
But in examining whether a reasonable officer in Camp’s position had probable cause to
arrest English for the reported assault and battery on Branch, the deputies’ explanation of what
they subjectively thought at the time “does not affect our analysis.” Park, 74 Va. App. at 646
n.3. “[T]he Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be
taken in certain circumstances, whatever the subjective intent.” Whren v. United States, 517 U.S.
806, 814 (1996). Thus, an “officer’s ‘action is “reasonable” under the Fourth Amendment,
regardless of the individual officer’s state of mind, “as long as the circumstances, viewed
objectively, justify the action.”’” Mason v. Commonwealth, 64 Va. App. 292, 301 (2015) (en
banc) (quoting Brigham City v. Stuart, 547 U.S. 398, 404 (2006)). In other words, the “‘officer’s
subjective characterization of observed conduct is not relevant’ to an objective application of the
Fourth Amendment.” Id. at 302 (quoting Jones v. Commonwealth, 279 Va. 665, 673 (2010)).
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“So strong is this principle that, even when an officer’s testimony shows that he misjudged the
legal basis for the stop, his subjective misjudgment does not undermine the objective validity of
a stop that could be based on a wholly different legal basis.” Id. at 302 n.5.6
Nor does it matter to the probable-cause analysis that it may well have been wiser for
Deputy Camp to have more diligently investigated the assault and battery allegations before
arresting English. For “[w]hile best practices may dictate that the police obtain both sides of a
story where practicable, the law simply does not mandate such diligence. Once probable cause is
established, ‘an officer is under no duty to investigate further or to look for additional evidence
which may exculpate the accused.’” Cameron v. Craig, 713 F.3d 1012, 1019 (9th Cir. 2013)
(quoting Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003)).
In short, because Deputy Camp had probable cause to arrest English for the reported
assault and battery on Branch, it does not matter that Deputies Camp and Hager both described
English as having been only detained, not arrested.
CONCLUSION
Deputy Camp had probable cause to arrest English for the reported assault and battery on
Branch. So even assuming for argument’s sake that English’s detention amounted to an arrest,
she “had no legal right to resist the lawful arrest.” Doscoli, 66 Va. App. at 430.
Affirmed.
6
It likewise does not matter that English was ultimately charged and convicted for a
different crime from the one for which she could have been lawfully arrested earlier. See
Doscoli, 66 Va. App. at 429; Slayton, 41 Va. App. at 108-09; Golden v. Commonwealth, 30
Va. App. 618, 624-25 (1999).
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