COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Frank

Argued at Chesapeake, Virginia

DARRYL LEE KNIGHT

MEMORANDUM OPINION* BY

v. Record No. 0029-00-1 JUDGE ROBERT P. FRANK

DECEMBER 19, 2000

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

H. Thomas Padrick, Jr., Judge

Richard Carl Clark, Assistant Public Defender

(Patrick J. McKenna, Assistant Public

Defender, on brief), for appellant.

Linwood T. Wells, Jr., Assistant Attorney

General (Mark L. Earley, Attorney General, on

brief), for appellee.

Darryl Lee Knight, appellant, was convicted in a bench trial,

of robbery in violation of Code 18.2-58, conspiracy in violation

of Code 18.2-22, and use of a firearm in the commission of a

felony in violation of Code 18.2-53.1. On appeal, he contends

the trial court erred in denying his motion to suppress. For the

reasons stated herein, we reverse the judgment of the trial court.

I. BACKGROUND

At a hearing on appellant's motion to suppress, Officer James

Marafka testified that during the early evening hours of February

27, 1999, he received a radio message that a robbery had just

occurred in an apartment complex near Birdneck Road and Route 44,

approximately one-quarter of a mile from his location. Marafka

was told that four subjects were involved in the robbery. All of

the suspects were described as young black males wearing dark

clothes.

Marafka said that as he was headed toward the scene of the

robbery, another officer radioed that he had seen suspects running

south from the scene to an area that Marafka had just passed.

Marafka said he then made a "U-turn" and drove to that area,

setting up a "perimeter."

At that point, Marafka said he saw someone running away from

him, toward the back of a house. Marafka then showed Officer

Carila, a K-9 officer, the direction in which the suspect started

running. Carila and his dog began to track in the direction the

suspect ran.

Marafka testified he followed Carila and then received a

radio message from Officer Garrett "that he had a subject running

across the street and had him on Birdneck Road, which was the

direction we were heading."

When Marafka and Carila arrived at Birdneck Road, Officer

Garrett was detaining a black male, who was later determined to be

appellant.

Marafka testified that only thirty seconds elapsed from the

time he saw the person running toward the back of the house to the

time when he received the message that appellant had been stopped.

No one else was in the area.

Marafka said that appellant matched the general description

of the robbery suspects. He was wearing dark clothing and a black

sweater or sweatshirt was next to him. Marafka said appellant was

sweating or "winded." On cross-examination, Marafka admitted he

could not tell if the person he saw running toward the back of the

house was appellant. Marafka stated he handcuffed appellant and

placed him in the back of a police car because appellant matched

the description broadcast earlier. At that point, Marafka stated

appellant was "investigatively detained" and was not free to

leave.

Officer Carila testified he received information over the

radio that a robbery was in progress. Before he arrived, however,

another police unit radioed him that several subjects were running

in the area of the school at Route 44 and Birdneck Road. He

testified that, as he came upon the area, he saw a suspect

running. He then deployed his dog. The dog, however, failed to

pick up a track, and the suspect ran between two houses toward

Birdneck Road. Officer Marafka told Carila he had seen the

suspect and showed Carila where he last saw the man. Carila and

the dog began tracking at that point.

Carila testified that when he reached the front of the

houses, he saw a black male detained by another officer and a

citizen in the median of Birdneck Road. Carila stopped the dog

from tracking at Birdneck Road because "it wasn't necessary for me

to endanger my dog in crossing the street at that point with

traffic." However, appellant was in the direct line of the dog's

track.

Detective Annette Pennypacker testified she took the victim

of the robbery, Cynthia Sorensen, to the location where appellant

was detained to give Sorensen the opportunity to identify

appellant. However, Sorensen was unable to identify appellant as

one of the men who robbed her. Pennypacker testified, "She said

she couldn't tell for sure." After speaking to another suspect,

Pennypacker ultimately directed the officers to take appellant to

the detective bureau "for further interview."

Officer Marafka testified he transported appellant to the

detective bureau. When asked, on cross-examination, what items

were taken from appellant, he stated, "[T]hat would have been done

at headquarters."

At the detective bureau, appellant was advised of his Miranda

rights and was interrogated. Appellant, according to Pennypacker,

then implicated himself and others in the robbery.

In his suppression argument at trial, appellant conceded his

initial detention by the police was proper. Yet, he contended the

police had no probable cause to "arrest" him when he was taken

into custody, handcuffed, and placed in the rear of the police

vehicle. He further contended that, when the victim failed to

identify him as the perpetrator of the robbery, the police were

obligated to release him from custody.

The trial court found there was probable cause to arrest,

denied the motion to suppress, accepted appellant's conditional

plea of guilty, and found appellant guilty of robbery, conspiracy,

and use of a firearm.

II. ANALYSIS

On appeal, appellant argues the probable cause issue raised

in the trial court and also contends there was no "reasonable

suspicion" to permit the initial stop. We will not address the

validity of the initial stop since appellant conceded at trial

that the initial detention, based on the "be on the lookout" was

proper. Appellant is bound by that concession and cannot raise

the issue. Timbers v. Commonwealth, 28 Va. App. 187, 194, 503

S.E.2d 233, 236 (1998); Rule 5A:18.

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. See Simmons v.

Commonwealth, 238 Va. 200, 204, 380 S.E.2d

656, 659 (1989). On appeal, we view the

evidence in the light most favorable to the

prevailing party, granting to it all

reasonable inferences fairly deducible

therefrom. See Commonwealth v. Grimstead,

12 Va. App. 1066, 1067, 407 S.E.2d 47, 48

(1991); see also Ornelas v. United States,

517 U.S. 690, 699, 116 S. Ct. 1657, 1659,

134 L.Ed.2d 911 (1996). We review de novo

the trial court's application of defined

legal standards such as probable cause and

reasonable suspicion to the particular facts

of the case. See Shears v. Commonwealth, 23

Va. App. 394, 398, 477 S.E.2d 309, 311

(1996); see also Ornelas, 517 U.S. at 699,

116 S. Ct. at 1659.

Reel v. Commonwealth, 31 Va. App. 262, 265, 522 S.E.2d 881, 882

(2000).

Police-citizen confrontations generally

fall into one of three categories. Payne v.

Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d

869, 869-70 (1992); Iglesias v.

Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d

170, 173 (1988). First, there are

consensual encounters which do not implicate

the Fourth Amendment. Iglesias, 7 Va. App.

at 99, 372 S.E.2d at 173. Next, there are

brief investigatory stops, commonly referred

to as "Terry" stops, which must be based

upon reasonable, articulable suspicion that

criminal activity is or may be afoot.

United States v. Sokolow, 490 U.S. 1, 7, 109

S. Ct. 1581, 1585, 104 L.Ed.2d 1 (1939).

Finally, there are "highly intrusive,

full-scale arrests" or searches which must

be based upon probable cause to believe that

a crime has been committed by the suspect.

Id.; see also Wechsler v. Commonwealth, 20

Va. App. 162, 169, 455 S.E.2d 744, 746-47

(1995).

McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261

(1997) (en banc).

"'Whether a warrantless arrest was

constitutionally valid depends upon whether,

at the moment the arrest was made, the

officers had probable cause to make it.'"

Jefferson v. Commonwealth, 27 Va. App. 1,

12, 497 S.E.2d 474, 479 (1998) (citations

omitted). If so, such "arrest of a

suspect . . . is a reasonable intrusion

under the Fourth Amendment" and, "that

intrusion being lawful, a search incident to

the arrest requires no additional

justification." United States v. Robinson,

414 U.S. 218, 235, 94 S. Ct. 467, 38 L.Ed.2d

427 (1973). Conversely, however, "a

warrantless arrest that is not based upon

probable cause is unconstitutional and

evidence seized as a result of an

unconstitutional arrest is inadmissible,

without regard to the officer's good faith

and reasonable belief that he was not

factually or legally mistaken." Ford v.

City of Newport News, 23 Va. App. 137, 145,

474 S.E.2d 848, 852 (1996).

"'[P]robable cause is measured against

an objective standard.'" Taylor v.

Commonwealth, 10 Va. App. 260, 266, 391

S.E.2d 592, 595-96 (1990) (citations

omitted). It "'exists where "the facts and

circumstances within the arresting officers'

knowledge and of which they had reasonably

trustworthy information are sufficient in

themselves to warrant a man of reasonable

caution in the belief that" an offense has

been or is being committed.'" Jefferson, 27

Va. App. at 12, 497 S.E.2d at 479 (citation

omitted). "'In assessing an officer's

probable cause for making a warrantless

arrest, no less strict standards may be

applied than are applicable to a

magistrate's determination that an arrest

warrant should issue.'" Ford, 23 Va. App.

at 144, 474 S.E.2d at 851 (citation

omitted).

Golden v. Commonwealth, 30 Va. App. 618, 622-23, 519 S.E.2d 378,

379-80 (1999). "The Commonwealth must show, based on a totality

of circumstances, 'a probability or substantial chance of

criminal activity' to establish probable cause." Yancey v.

Commonwealth, 30 Va. App. 510, 516, 518 S.E.2d 325, 328 (1999)

(quoting Ford, 23 Va. App. at 143-44, 474 S.E.2d at 851).

"[I]f the police have probable cause to

effect an arrest, a limited search may be

justified even in the absence of a formal

arrest." Poindexter v. Commonwealth, 16 Va.

App. 730, 733-34, 432 S.E.2d 527, 529 (1993)

(citing Cupp v. Murphy, 412 U.S. 291,

295-96, 93 S. Ct. 2000, 2003-04, 36 L.Ed.2d

900 (1973)) (footnote omitted). "So long as

probable cause to arrest exists at the time

of the search . . . it is unimportant that

the search preceded the formal arrest if the

arrest 'followed quickly on the heels of the

challenged search.'" Id. at 733, 432 S.E.2d

at 529 (quoting Carter v. Commonwealth, 9

Va. App. 310, 312, 387 S.E.2d 505, 506-07

(1990)) (additional citation omitted).

Wallace v. Commonwealth, 32 Va. App. 497, 505, 528 S.E.2d 739,

742-43 (2000). "If the officer lacked probable cause to arrest,

however, any evidence seized pursuant to the arrest will be

excluded from trial." Clarke v. Commonwealth, 32 Va. App. 286,

294, 527 S.E.2d 484, 488 (2000) (citing Lugar v. Commonwealth,

214 Va. 609, 611, 202 S.E.2d 894, 897 (1974)).

In this case, the initial detention was valid through, and

including, Sorenson's attempt to identify appellant based on the

"be on the lookout" that was broadcast on the police radios.

However, we find the initial detention never ripened into the

probable cause necessary for the police to involuntarily

transport appellant to the detective bureau. See Dunaway v. New

York, 442 U.S. 200, 206-07 (1979) (holding the involuntary

transportation of Dunaway to the police station constituted a

seizure within the meaning of the Fourth Amendment and rejecting

the state's argument that, although the police lacked probable

cause, the seizure was permissible because the police had "a

'reasonable suspicion' that [Dunaway] possessed 'intimate

knowledge about a serious and unsolved crime'"). Detective

Pennypacker testified she directed that appellant be taken to

the detective bureau for "further interview" after she spoke to

another suspect. However, she did not testify as to what the

other suspect told her with regard to appellant. The police

based their probable cause conclusion on appellant's match with

the description broadcast in the "be on the lookout," Sorenson's

statement that she could not tell for sure whether he was one of

the men who committed the robbery, and some unknown statement

made to Detective Pennypacker by another suspect. We find that,

on the record before us, the facts and circumstances within the

officers' knowledge were not sufficient to warrant the belief

that appellant had committed the robbery and, thus, the officers

did not have probable cause to arrest appellant. We, therefore,

hold that the incriminating statements made by appellant at the

detective bureau and the items obtained in the search of

appellant's person at the detective bureau should have been

suppressed.

For these reasons, we reverse the convictions and remand

for further proceedings if the Commonwealth be so advised.

Reversed and remanded.

* Pursuant to Code 17.1-413, this opinion is not

designated for publication.

We do not address whether Sorenson's inability to identify

appellant terminated the reasonable suspicion.

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