Commonwealth of Virginia v. Michael R. Carosella

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued by teleconference
COMMONWEALTH OF VIRGINIA
v. Record No. 0619-98-4
BENJAMIN S. CREWE
COMMONWEALTH OF VIRGINIA
v. Record No. 0620-98-4
PADERIC HOWELL CONROY MEMORANDUM OPINION * BY
CHIEF JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA AUGUST 25, 1998
v. Record No. 0621-98-4
PHILIP C. MANISCALCO
COMMONWEALTH OF VIRGINIA
v. Record No. 0622-98-4
MICHAEL R. CAROSELLA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellant.
Clifford Y. Rose (Rose & Wall, P.C., on
brief), for appellee Benjamin S. Crewe.
Benjamin H. Woodbridge, Jr. (Woodbridge &
Reamy, on brief), for appellee Paderic Howell
Conroy.
Arthur L. Grace for appellee Philip C.
Maniscalco.
(Albert H. Jacoby, on brief), for appellee
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Michael R. Carosella.
Benjamin S. Crewe and Paderic H. Conroy (appellees) were
each indicted on three counts of grand larceny and one count of
throwing a missile at an occupied vehicle. Philip C. Maniscalco
and Michael R. Carosella (appellees) were each indicted on three
counts of grand larceny, one count of throwing a missile at an
occupied vehicle, and one count of felony destruction of
property. Appellees filed pretrial motions to suppress their
statements and property turned over to police, arguing: 1) the
police officer's investigatory stop of their vehicle was
unlawful, and 2) their subsequent statements were tainted as
fruit of the illegal stop. The trial court granted the
suppression motions, and the Commonwealth appeals pursuant to
Code § 19.2-398(2). For the following reasons, we reverse.
I.
At 4:03 a.m. on July 23, 1997, the Stafford County Sheriff's
Office received a call from a clerk at a 7-Eleven store
requesting that the police investigate suspicious activity
outside the store. The clerk indicated that four individuals had
exited a white Ford Explorer, and two were outside at the rear of
the store and two were at the side of the store. The police
dispatcher relayed this information to Deputy Mike Jenkins, who
arrived at the store approximately ten seconds later. Jenkins
testified that although the location of the 7-Eleven was not a
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high crime area, the early morning hours were the "most
dangerous" for twenty-four-hour convenience stores, and the
clerk's description of the individuals' behavior was "a classic
example of people casing the area."
As Jenkins turned into the 7-Eleven parking lot, he saw a
white Ford Explorer leave the lot and drive onto Route 3. He saw
the driver's eyes widen in "a surprised facial expression." The
officer scanned the parking lot, noting that the clerk was in the
store and no other individuals or vehicles were present. As
Jenkins turned to follow the truck, the passengers in the truck
watched him, and he recognized Crewe, who was sitting in the
right rear seat, as a former jail inmate. Jenkins followed the
truck on Route 3 for approximately two-tenths of a mile and
observed the passengers in the rear seat "leaning forward" with
"furtive movements," as if they were putting something under the
seat or in the side panel. The officer requested additional
information from the dispatcher regarding the suspicious
circumstances call from the store clerk, but the dispatcher had
nothing further to report. Jenkins also attempted to check the
license tag number of the vehicle, but because it was a temporary
tag, he was unable to acquire information about the owner. He
observed no traffic or other violations, but based on the
reported suspicious activity, the driver's surprise, and the
passengers' furtive movements, Jenkins suspected "possible
criminal activity," and he initiated a traffic stop.
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During the traffic stop, Jenkins checked the identification
of each of the five occupants, the four appellees and a juvenile,
C.W. Jenkins also searched the truck and photographed the
contents, which included long-handled screw drivers, baseball
bats, gloves, a flashlight, automobile compact disc players,
compact disc player face plates, golf clubs, a cellular phone,
sunglasses, two cases of compact discs, and several cans of
Surge, a sports drink. After approximately twenty minutes, the
officer allowed the occupants of the truck to leave without
making an arrest or issuing a summons. The traffic stop
concluded at approximately 4:30 a.m.
At approximately 5:00 a.m., Deputy Jenkins was advised of
multiple reports of vandalism and items having been stolen from
cars. One report involved a store window that had been broken
with a Surge soda can, and a second report described someone in a
vehicle throwing a Surge can at another vehicle on the road.
Additional reports of stolen items, including golf clubs and
automobile compact disc players, matched Jenkins' recollection of
the items he observed in the white Ford Explorer.
Between 8:00 and 8:30 a.m., Deputy Jenkins, accompanied by
several deputies, went to the home of Conroy, the owner and
driver of the white Explorer. Jenkins asked Conroy whether he
knew why they were there, and he said that he did. The officer
then told Conroy that "[t]here was a lot of damage done last
night, vandalism done last night, and that's what we're here to
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talk about." Conroy was advised of his rights under Miranda,
completed a voluntary statement form, and gave written and oral
statements implicating himself, Crewe, Maniscalco, Carosella, and
C.W. in numerous offenses committed earlier that evening. Conroy
then showed the deputies some of the stolen compact discs located
in his bedroom and told them Maniscalco had left with the rest of
the stolen property.
When the officers conducted a consensual search of the
bedroom they found Crewe hiding under the bed. When asked why he
was under the bed, Crewe replied that he did not want to go to
jail. The deputies advised Crewe of his rights under Miranda and
told him that Conroy had given them written and oral statements
about the events of the evening. Crewe completed a voluntary
statement form and gave written and oral statements which
implicated the other occupants of the vehicle.
Before leaving, Deputy Jenkins asked Conroy to contact the
others and have them all come to the police station for
questioning that night at 9:30 p.m. and to bring any stolen
property with them. Conroy and Crewe arrived at the station at
approximately 10:00 p.m. that evening. Deputy Jenkins again
advised Conroy and Crewe of their rights under Miranda and that
neither was under arrest when he interviewed them for the second
time. Conroy gave an oral statement implicating Carosella,
Maniscalco, and C.W. Crewe stated that the idea to break into
the cars was mutual and further implicated Maniscalco and C.W.
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While Jenkins did not arrest either Conroy or Crewe at that
time, he told them he would be obtaining warrants for their
arrest and he would give them until 8:00 p.m. on the next day to
get back to him and to bring in any stolen items. Conroy gave no
further statement and had no additional contact with police until
his arrest. He did not give a post-arrest statement. Crewe was
arrested on July 30, 1997, and his post-arrest statement was
videotaped at the police station.
At approximately 3:00 a.m. on July 24, 1997, nearly
twenty-four hours after the initial stop, Maniscalco and
Carosella arrived at the police station. As Deputy Jenkins met
them in the lobby, before he asked them any questions, Carosella
gave him one of the stolen compact disc player face plates.
Jenkins advised Maniscalco and Carosella of their rights
under Miranda. Both appellees signed voluntary statement forms
and provided statements implicating each other as well as Crewe,
Conroy and C.W. In response to Jenkins' question whether he
possessed any additional property taken from the vehicles that
night, Maniscalco retrieved the stolen golf clubs from the trunk
of his car. When Jenkins asked where the rest of the stolen
property was, Maniscalco replied that it was at Carosella's
house. After advising Maniscalco and Carosella that he would be
obtaining warrants for their arrest and they had until 8:00 p.m.
to get back to him and to bring in any additional stolen items,
Jenkins concluded the interviews. None of the appellees appeared
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at 8:00 p.m. on July 24 as Jenkins had requested.
In the course of an interview with C.W. on July 27, 1997,
Deputy Jenkins learned for the first time that Maniscalco and
Carosella had been involved in two incidents of vandalism at the
county garage during the month of February. On July 28, 1997,
when Maniscalco notified Jenkins that he would be bringing more
stolen property to the police station, Jenkins invited Detective
Ernie Jones, the investigating officer on the county garage
offenses, to be present during the interview.
Maniscalco arrived on July 28 and immediately turned over a
plastic bag with several stolen items in it. Deputy Jenkins
informed Maniscalco that he had a warrant for his arrest, but he
did not execute the warrant. Jenkins and Detective Jones advised
Maniscalco of his rights under Miranda and conducted an
interview, during which Maniscalco made incriminating statements
concerning his involvement in the July 23 offenses and the county
garage offenses. He was allowed to leave with the agreement that
he would return the following day. He did return the following
day, July 29, 1997, and was again advised of his rights and
interviewed by Detective Jones. Maniscalco gave additional
incriminating statements about the July 23 offenses and the
county garage offenses. At the close of the July 29 interview,
Maniscalco was arrested and taken into custody.
Carosella had no further contact with police until August 5,
1997, when he gave a post-arrest statement describing his
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involvement in both the July 23 vandalism and the county garage
offenses.
After a hearing limited to the issue of the reasonableness
of the stop, the trial court issued a letter opinion enumerating
the undisputed facts. Relying on Ewell v. Commonwealth, 254 Va.
214, 491 S.E.2d 721 (1997), the trial court concluded that "the
totality of these facts do not, and did not, grant the police
officer a reasonable suspicion" of criminal activity.
II.
The threshold question is whether the officer had reasonable
suspicion of criminal activity when he stopped the vehicle.
"'Ultimate questions of reasonable suspicion and probable cause'
. . . involve questions of both law and fact and are reviewed de
novo on appeal." McGee v. Commonwealth, 25 Va. App. 193, 197,
487 S.E.2d 259, 261 (1997) (quoting Ornelas v. United States, 517
U.S. 690, 691 (1996)). Consequently, we review the undisputed
facts and the trial court's application of the relevant law de
novo.
"'[W]hen the police stop a motor vehicle and detain an
occupant, this constitutes a seizure of the person for Fourth
Amendment purposes.'" Logan v. Commonwealth, 19 Va. App. 437,
441, 452 S.E.2d 364, 367 (1994) (quoting Zimmerman v.
Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988)). "In
order to justify an investigatory stop of a vehicle, the officer
must have some reasonable, articulable suspicion that the vehicle
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or its occupants are involved in, or have recently been involved
in, some form of criminal activity." Logan, 19 Va. App. at 441,
452 S.E.2d at 367. "Actual proof that criminal activity is afoot
is not necessary; the record need only show that it may be
afoot." Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d
77, 79 (1992).
"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." Freeman v.
Commonwealth, 20 Va. App. 658, 661, 460 S.E.2d 261, 262 (1995).
We may also consider "'the "characteristics of the area" where
the stop occurs, the time of the stop, whether late at night or
not, as well as any suspicious conduct of the person accosted
such as an obvious attempt to avoid officers or any nervous
conduct on the discovery of their presence.'" Commonwealth v.
Thomas, 23 Va. App. 598, 611, 478 S.E.2d 715, 721 (1996) (quoting
Smith v. Commonwealth, 12 Va. App. 1100, 1103, 407 S.E.2d 49,
51-52 (1991)).
Additionally, we acknowledge that "'a trained law
enforcement officer may [be able to] identify criminal behavior
which would appear innocent to an untrained observer.'" Freeman,
20 Va. App. at 661, 460 S.E.2d at 262 (quoting Taylor v.
Commonwealth, 6 Va. App. 384, 388, 369 S.E.2d 423, 425 (1988)).
For example, in Logan v. Commonwealth, the only evidence
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providing reasonable suspicion was a broken vent window in the
defendant's vehicle. 19 Va. App. 437, 452 S.E.2d 364 (1994). We
held that the stop was lawful based on the officer's testimony
that "[h]er experience and training suggested that a broken vent
window on this type of vehicle often indicated that the vehicle
had been broken into and stolen." Id. at 439-40, 452 S.E.2d at
366.
In the instant case, a vehicle carrying at least four
passengers drove into a 7-Eleven parking lot at 4:00 a.m. After
exiting the vehicle, two pairs of occupants walked around the
7-Eleven, one pair going to the side and the other to the rear of
the building. There was no reported attempt to enter or approach
the building's public entrance. Deputy Jenkins testified that in
his experience these actions comprised a classic example of
individuals casing a store. Jenkins was also aware that the
store clerk had reported this activity and requested assistance
during the most dangerous time for an all-night convenience
store. As Jenkins arrived on the scene to investigate these
unusual circumstances, the officer observed the white Ford
Explorer described by the store clerk leaving the parking lot and
a surprised expression on the driver's face as he noticed the
officer's presence. Once Jenkins began to follow the vehicle,
the passengers turned to look at him and made furtive gestures,
as if they were concealing items. At this time, Jenkins also
recognized one of the passengers as a former jail inmate. Based
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on these facts, Jenkins made an investigatory stop of the
vehicle.
Citing Ewell v. Commonwealth, 254 Va. 214, 491 S.E.2d 721(1997), appellees contend the stop was unlawful because the
officer lacked an articulable reasonable suspicion that the
occupants of the vehicle were engaged in criminal activity.
However, the instant facts are distinguishable from the facts of
Ewell, in which the Supreme Court suppressed evidence seized as a
result of an unlawful stop. In Ewell, an officer entered a
parking lot around 12:30 a.m. and noticed a vehicle parked next
to an apartment suspected of being the site of narcotics
activity. The officer focused his attention on the vehicle
because he did not recognize the car or its driver, Ewell, as a
resident of the adjoining apartment complex. Moreover, Ewell
attempted to leave the parking lot immediately upon the officer's
arrival. Based on these facts the officer stopped the vehicle.
The Supreme Court found that the stop violated the Fourth
Amendment because "nothing about Ewell's conduct was suspicious."
Id. at 217, 491 S.E.2d at 723. The Court emphasized this by
stating that "Ewell acted as any other person might have acted
under similar circumstances." Id.In the case before us, the officer stated the following
facts as the basis of the stop. Deputy Jenkins arrived at the
twenty-four-hour convenience store in response to a call about
suspicious behavior in its parking lot. This suspicious behavior
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consisted of four men exiting a parked vehicle and walking around
to the side and rear of the store at 4:00 a.m., the most
dangerous time in the operation of such a business. Upon
arrival, the officer focused his attention on appellees' vehicle
not because he thought it did not belong there, but because the
store clerk specifically described the vehicle. Moreover, rather
than acting "as any other person might have acted under similar
circumstances," id., the occupants of the vehicle displayed
surprise and "'nervous conduct on discovery of [the presence of
the officer].'" Thomas, 23 Va. App. at 611, 478 S.E.2d at 721(citation omitted).
For the foregoing reasons, we hold that the totality of the
circumstances disclose articulable facts both before and after
the officer's arrival that justified his reasonable suspicion and
the investigatory stop. 1 Consequently, the decisions of the
trial court are reversed.
Reversed and remanded.
1
The Commonwealth also appealed the trial court's ruling
that appellees' statements and the property they turned over to
police were inadmissible fruit of the illegal investigatory stop.
In light of our holding that the investigatory stop was
justified by reasonable articulable suspicion, the admissibility
of evidence obtained subsequent to the stop is moot, and we need
not address it.
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