Jason D. Hailey, s/k/a Jason Duane Hailey v. CW ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Humphreys
Argued at Richmond, Virginia
JASON D. HAILEY, s/k/a
JASON DUANE HAILEY
MEMORANDUM OPINION * BY
v. Record No. 0627-99-3 JUDGE ROBERT J. HUMPHREYS
AUGUST 15, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
David W. Shreve for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Jason D. Hailey, appellant, appeals from his convictions for
driving a motor vehicle on a suspended license and driving under
the influence of alcohol, second offense. On appeal, he contends
the trial court erred in denying his motion to dismiss that was
argued "on the basis that the detention and subsequent seizure of
the Defendant and his arrest were unlawful." In his brief,
appellant questions whether the police officer had "an objectively
reasonable particularized suspicion that [he] was engaged in or
had recently been engaged in criminal activity."
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Appellant failed to make any constitutional arguments in the
trial court. Therefore, we affirm his convictions.
FACTS
At 2:45 p.m., on October 19, 1998, Officer B.K. Dudley "heard
"a vehicle engine 'rev' and tires squeal" and "saw a light gray
and white older model Chevrolet pickup truck with a camper shell
on the back slide onto Pocket Road from an adjacent parking lot
and head away from Main Street." 1 Dudley tried "to pursue" the
vehicle, but was unable to locate it. He could not identify the
driver or the license plate.
Dudley returned to the police department. "Before or at
3:00 p.m.," a "lady came to the Police Department" and told Dudley
that she had seen a pickup truck speeding on Pocket Road. The
lady "named the two occupants of the vehicle." Although Dudley
"was familiar with" the lady, she "did not want her identity . . .
revealed," so Dudley refused to identify her by name.
After the lady left, Dudley "saw the same truck he had seen
earlier and about which the unidentified lady had told him on
Pocket Road." Dudley followed the vehicle. Although he saw the
driver commit no traffic infractions, Dudley stopped the vehicle.
Appellant "was the driver." The summons indicated an arrest time
of 4:45 p.m.
1
The record does not contain a transcript of the hearing or
trial, therefore we rely on the recitation of facts from the
written statement of facts signed by the trial judge.
- 2 -
PROCEDURAL BACKGROUND
On January 14, 1999, appellant filed a motion to dismiss on
the ground that "Dudley's actions in detaining [him] were
occasioned by a complaint made sometime earlier in the day by a
citizen of the community." In the motion, appellant argued that
the charges
be dismissed inasmuch as, he was arrested
without a warrant and the arresting Officer
did not have personal knowledge acquired by
his personal sense that the offense was
committed in his presence inasmuch as, there
was no offense committed with the presence
of the Officer when he had direct personal
knowledge, through his sight, hearing or
other senses that it was then and there
being committed.
By order dated February 18, 1999, the trial court denied the
motion to dismiss. The order contains no explanation or reason
for the trial court's decision. The statement of facts does not
recite that appellant asserted a constitutional claim at trial.
DISCUSSION
The Court of Appeals will not consider arguments on appeal
which were not presented to the trial court. See Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)
(citing Rule 5A:18). The purpose of the rule is "to give the
trial court an opportunity to rule intelligently." Marshall v.
Goughnour, 221 Va. 265, 269, 269 S.E.2d 801, 804 (1980).
Appellant's argument in his motion to dismiss is based solely
on a statutory violation of Code § 19.2-81. In that motion,
- 3 -
appellant suggested that the stop was based solely on the speeding
violation and that the officer did not see appellant speed.
However, a violation of Code § 19.2-81 does not require the
exclusion of evidence absent a constitutional violation. See
Vinson v. Commonwealth, 258 Va. 459, 469, 522 S.E.2d 170, 177
(1999) (even if there was violation of Code § 19.2-81, suppression
not required absent constitutional violation); Thompson v.
Commonwealth, 10 Va. App. 117, 121, 390 S.E.2d 198, 200-01 (1990)
(confession obtained during period of statutorily invalid arrest
not subject to exclusion when accused constitutionally in custody
and confessed voluntarily).
On appeal, appellant contends the stop violated the Fourth
Amendment; however, nothing in the record indicates that appellant
ever made a constitutional argument to the trial court.
Therefore, Rule 5A:18 bars our review of that issue. See Cottrell
v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 438, 441 (1991)
(Rule 5A:18 barred consideration of constitutional question not
raised in trial court); cf. Jacques, 12 Va. App. at 593, 405
S.E.2d at 631 (refusing to address statutory violation where
motion to suppress was based solely on constitutional grounds).
Because the record fails to show that appellant made a
constitutional argument to the trial court, we will not consider
this issue for the first time on appeal. See Rule 5A:18.
- 4 -
Accordingly, we affirm the trial court.
Affirmed.
- 5 -