William Bill Clark v. Commonwealth of Virginia ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Elder and Senior Judge Willis
Argued at Chesapeake, Virginia
WILLIAM BILL CLARK
MEMORANDUM OPINION * BY
v. Record No. 0946-10-1 JUDGE LARRY G. ELDER
SEPTEMBER 20, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge 1
John E. Robins, Jr. (Office of the Public Defender, on brief), for
appellant.
Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli,
II, Attorney General, on brief), for appellee.
William Bill Clark (appellant) appeals from his bench trial convictions for robbery, Code
§ 18.2-58; use of a firearm in the commission of robbery, Code § 18.2-53.1; wearing a mask in
public, Code § 18.2-422; and breaking and entering while armed, Code § 18.2-91. On appeal, he
contends police had neither reasonable suspicion to detain him nor probable cause to arrest. He
contends further that the arresting officer’s trial testimony conflicted with her testimony at the
suppression hearing and, thus, provided insufficient credible evidence to support the
investigative detention. As a result, he argues, the trial court erred in denying both his pre-trial
motion to suppress and his renewed motion, made at the close of the Commonwealth’s evidence
at trial. We hold the evidence was sufficient to support a finding that the police developed, first,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Judge Bonnie L. Jones ruled on appellant’s pre-trial motion to suppress. Judge Hutton
presided over appellant’s trial, including the renewal of his motion to suppress, and sentencing.
reasonable suspicion for the detention and, then, probable cause for appellant’s arrest. Thus, we
affirm the challenged convictions. 2
In reviewing the denial of a pre-trial motion to suppress, we consider the evidence
adduced at both the suppression hearing and at trial to determine whether the denial of the
motion was error. Rodriguez v. Commonwealth, 40 Va. App. 144, 149 n.1, 578 S.E.2d 78, 80
n.1 (2003). We view the evidence in the light most favorable to the prevailing party, here the
Commonwealth, granting to the evidence all reasonable inferences fairly deducible therefrom.
Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). “[T]he trial court,
acting as fact finder [on the suppression issue], must evaluate the credibility of the witnesses . . .
and resolve the conflicts in their testimony . . . .” Witt v. Commonwealth, 215 Va. 670, 674, 212
S.E.2d 293, 297 (1975); see Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d
258, 259 (1989) (“It is firmly imbedded in the law of Virginia that the credibility of a witness
who makes inconsistent statements on the stand is a question . . . for the . . . [trier of the facts]
. . . .”). “[W]e are bound by the trial court’s findings of historical fact unless ‘plainly wrong’ or
without evidence to support them,” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d
259, 261 (1997) (en banc), whereas we review de novo the application of defined legal standards,
such as whether reasonable suspicion or probable cause supported a seizure, Ornelas v. United
States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911, 920 (1996).
Fourth Amendment jurisprudence recognizes three categories of police-citizen contact:
“(1) consensual encounters, (2) brief, minimally intrusive . . . Terry stops, and (3) highly
intrusive arrests and searches founded on probable cause.” Wechsler v. Commonwealth, 20
2
Appellant presents a third assignment of error challenging the sufficiency of the
evidence to support his conviction assuming his motion to suppress was improperly denied.
Because we hold the trial court’s refusal to suppress the evidence was not error, we do not reach
appellant’s third assignment of error.
-2-
Va. App. 162, 169, 455 S.E.2d 744, 747 (1995) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968)). “A seizure occurs when an individual is either physically restrained or
has submitted to a show of authority” under circumstances in which “a reasonable person would
have believed that he or she was not free to leave.” McGee, 25 Va. App. at 199-200, 487 S.E.2d
at 262.
An officer may effect an investigatory detention if he becomes aware of facts that “lead[]
him reasonably to conclude in light of his experience that criminal activity may be afoot” and
that the person he detains is or was involved in it. Terry, 392 U.S. at 30, 88 S. Ct. at 1884, 20
L. Ed. 2d at 911. Reasonable suspicion “need not rule out the possibility of innocent conduct.”
United States v. Arvizu, 534 U.S. 266, 277, 122 S. Ct. 744, 753, 151 L. Ed. 2d 740, 752 (2002).
Whether an officer has reasonable suspicion for a Terry stop is based on an assessment of the
totality of the circumstances, “which includes ‘the content of information possessed by police
and its degree of reliability,’ i.e.[,] ‘quantity and quality.’” Jackson, 267 Va. at 673, 594 S.E.2d
at 599 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301,
309 (1990)). An officer who develops such reasonable suspicion concerning a person may stop
that person “in order to identify him, to question him briefly, or to detain him briefly while
attempting to obtain additional information” in order to confirm or dispel his suspicions. Hayes
v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705, 711 (1985).
Probable cause, although requiring a higher quantum of evidence than reasonable
suspicion, nevertheless
relates to probabilities that are based upon the factual and practical
considerations in everyday life as perceived by reasonable and
prudent persons . . . . [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.
-3-
Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981). “‘The substance of all
the definitions of probable cause is a reasonable ground for belief of guilt. And this means less
than evidence which would justify condemnation or conviction.’” Slayton v. Commonwealth, 41
Va. App. 101, 107, 582 S.E.2d 448, 451 (2003) (quoting Brinegar v. United States, 338 U.S. 160,
175, 69 S. Ct. 1302, 1310, 93 L. Ed. 2d 1879, 1890 (1949) (citations and internal quotation
marks omitted)). Thus, evidence sufficient to provide probable cause to arrest for a crime need
not be evidence sufficient to convict for that offense. Id.
Finally, we evaluate the existence of reasonable suspicion and probable cause under a
standard of objective reasonableness: “An 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.’ The officer’s subjective motivation is irrelevant.” Brigham
City v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650, 658 (2006) (quoting
Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168, 178 (1978)).
Appellant concedes that Officer Partlow’s initial encounter with him was consensual.
However, he contends that his placement in the back seat of the police car constituted an arrest
for which probable cause was required and that police had neither probable cause nor reasonable
suspicion to effect such a seizure at that time. We hold the evidence supports the trial court’s
rulings to the contrary.
First, the evidence supports the conclusion that appellant had merely been detained, not
arrested, when Officer Partlow put him in the police car. Lawson v. Commonwealth, 55
Va. App. 549, 559, 687 S.E.2d 94, 99 (2010) (upholding Terry detention in police car while
awaiting arrival of canine). Even “[b]rief, complete deprivations of a suspect’s liberty, including
handcuffing, ‘do not convert [a Terry stop] into an arrest so long as the methods of restraint used
are reasonable to the circumstances.’” Thomas v. Commonwealth, 16 Va. App. 851, 857, 434
-4-
S.E.2d 319, 323 (1993) (quoting United States v. Crittendon, 883 F.2d 326, 329 (4th Cir. 1989)),
aff’d on reh’g en banc, 18 Va. App. 454, 444 S.E.2d 275 (1994).
Further, the evidence, viewed objectively in the light most favorable to the
Commonwealth, supports a finding that, at the time of the seizure, reasonable suspicion existed
to believe appellant may have been involved in a crime. When Officer Partlow first approached
appellant at 10:26 p.m., she engaged him in a consensual encounter that lasted seven minutes.
Partlow knew when she began the encounter that appellant was walking away from the general
vicinity in which a restaurant robbery had occurred a few minutes earlier. She also knew he fit
the robbers’ general description in that he was of the same race and was wearing dark clothing.
When Officer Partlow spoke to appellant concerning his presence in the area, he admitted
he had just come from the shopping center in which the robbery had occurred, although he
claimed to have been at the nearby convenience store rather than at the restaurant. Appellant
also claimed to have walked only on the sidewalk, but his shoes had water droplets, grass, and
mud on them, supporting the inference that he had not been honest about the path he had taken.
He also had sweat on his brow despite the fact that “it was very cold out.” Further, appellant
claimed to have gone to the convenience store to use the phone to call his girlfriend, with whom
he said he had had an argument, but Officer Partlow had observed appellant carrying and talking
on a cell phone immediately before she approached him on the street, suggesting he was not
being truthful about his phone and the reason for his trip to the shopping center. When Officer
Partlow asked appellant about this inconsistency, he claimed he had run out of minutes on his
cell phone and had held it up while walking down the street because he was talking to himself
and did not want to look foolish. He also made inconsistent statements to Officer Partlow about
whether the disagreement he claimed to have had with his girlfriend had occurred during the
phone call from the convenience store or in person earlier in the day.
-5-
It was against this backdrop that Officer Partlow acquired the more specific information
in the updated “be-on-the-lookout” alert (BOL) at 10:33 p.m. That BOL included information
that the first suspect was “shorter,” “[a]pproximately five foot two to five foot seven,” “[a]
hundred and twenty to a hundred and forty pounds,” and was “last seen wearing a dark hooded
sweatshirt, dark jeans that were faded in the front and back,” and “black shoes.” Officer Partlow
noted appellant, like the description of the shorter suspect, had on black shoes and dark faded
jeans. Further, the judge who ruled on appellant’s pre-trial motion to suppress found the BOL’s
description of the height, size, and weight of the robbers supported the investigatory seizure.
Implicit in this finding is that appellant generally matched the height, size, and weight of the
smaller perpetrator. This evidence, coupled with the fact that appellant appeared to have been
running through the grass from the area where the robbery occurred but lied about it when
questioned, provided reasonable suspicion for the stop.
Once the seizure had occurred, the officers worked to confirm or dispel the suspicions
supporting the detention. Within minutes of the 10:33 p.m. seizure, Detectives Felder and Mayer
arrived with a witness who had seen a man behind the business shortly after the robbery.
Appellant was removed from the car for a show-up, but the witness said appellant was not the
person she saw. Appellant was then allowed to smoke a cigarette before reentering the vehicle.
At 10:42 p.m., less than ten minutes after appellant’s detention had begun, Officer Boyd
and his canine, Falco, arrived on the scene. At 10:19 p.m., Boyd and Falco had started near the
scene of the robbery and tracked the “freshest” scent based on “where the suspect was last seen.”
They started from “the corner of [the restaurant],” adjacent to the laundromat next door, and after
winding through some condominiums and the grassy area around a school, during which they
found several dollar bills and a black sweatshirt, Falco reached the location where appellant was
-6-
being detained. Falco alerted on appellant’s portion of the police car by pawing the door and
window, indicating appellant was the person whose scent he had tracked from the scene.
In sum, the robbers fled the restaurant at 10:12 p.m., and Officer Partlow engaged
appellant in a consensual encounter fourteen minutes later, at 10:26 p.m., about one mile from
the restaurant. Seven minutes after that, at 10:33 p.m., Officer Partlow converted that encounter
into an investigative detention based upon her receipt of a further description of the robbers,
which appellant met. Nine minutes later, at 10:42 p.m., Officer Boyd and canine Falco, who
tracked the freshest scent from the restaurant and found money and discarded clothing along the
way, arrived at the scene of the detention. Falco immediately alerted on the door of the police
car through which appellant had entered, pawing at the door and window. Thus, by 10:42 p.m., a
mere thirty minutes after the robbers fled the restaurant, the evidence, viewed objectively,
provided probable cause for appellant’s arrest. See Noell v. Angle, 217 Va. 656, 662-63, 231
S.E.2d 330, 334-35 (1977) (in a malicious prosecution case, relying on a police dog’s tracking
from the crime scene to the criminal defendant’s front door to hold probable cause existed to
charge the defendant with the crime).
Due to the objective nature of the Fourth Amendment reasonableness standard, the fact
that the officers did not formally arrest appellant until 11:48 p.m. is not dispositive. “Law
enforcement officers are under no constitutional duty to call a halt to a criminal investigation the
moment they have the minimum evidence to establish probable cause, a quantum of evidence
which may fall far short of the amount necessary to support a criminal conviction.” Hoffa v.
United States, 385 U.S. 293, 310, 87 S. Ct. 408, 417, 17 L. Ed. 2d 374, 386 (1966).
Finally, even if the evidence that police had gathered by 10:42 p.m. was insufficient to
provide probable cause for arrest, the officers continued their investigation, and as soon as
Detective Mayer returned to the restaurant and viewed the surveillance video of the robbery, he
-7-
was able to identify the “very distinctive” faded jeans he had just seen on appellant as the same
jeans worn by the shorter of the two robbers in the video. The court heard Detective Mayer’s
specific testimony describing the jeans and also had an opportunity to examine the jeans before
making its factual finding about their distinctive nature. Thus, the evidence supports the finding
that when Detective Mayer radioed the “supervisors out by [appellant] . . . to go ahead and place
him in custody,” the totality of the circumstances, viewed objectively, including Detective
Mayer’s observations about the jeans, provided probable cause for that arrest. When the arrest
occurred at 11:48 p.m., appellant had been in custody for one hour fifteen minutes, during which
the police (a) uncovered no evidence that dispelled their suspicions about appellant and
(b) continued to gather evidence contributing to the establishment of probable cause. See United
States v. Sharpe, 470 U.S. 675, 685-86, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605, 615 (1985)
(declining to adopt a “hard-and-fast time limit for a permissible Terry stop” in favor of allowing
“common sense and ordinary human experience [to] govern over rigid criteria”); Lawson, 55
Va. App. at 559, 687 S.E.2d at 98 (holding “police diligently pursued their investigation of
Lawson’s vehicle for narcotics by dispatching the canine unit to the scene within twenty to
twenty-five minutes”); Limonja v. Commonwealth, 8 Va. App. 532, 544, 383 S.E.2d 476, 483
(1989) (en banc) (holding that detaining the defendant for twenty-two minutes while waiting for
a drug canine to arrive did not exceed the bounds of a reasonable Terry stop and noting other
courts had upheld detentions of up to seventy-five minutes under similar circumstances), cited
with approval in Lawson, 55 Va. App. at 558-59, 687 S.E.2d at 98.
For these reasons, we hold the evidence supports the denial of appellant’s motion to
suppress. Accordingly, we affirm appellant’s convictions.
Affirmed.
-8-