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                 COURT OF APPEALS OF VIRGINIA



Present:  Judges Benton, Coleman and Moon
Argued at Salem, Virginia


JEFFREY SCOTT WRIGHT
                                                                                                                                               MEMORANDUM OPINION BY
v.   Record No. 2528-96-3                 JUDGE SAM W. COLEMAN III
                       DECEMBER 9, 1997
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                J. Samuel Johnston, Jr., Judge

         Robert R. Feagans, Jr., for appellant.

         Daniel J. Munroe, Assistant Attorney General
         (James S. Gilmore, III, Attorney General, on
         brief), for appellee.


    Jeffrey Scott Wright was convicted in a bench trial for
possession of LSD, a Schedule I controlled substance, in
violation of Code   18.2-250.  On appeal, he contends that the
trial court erred by denying his motion to suppress the LSD that
was seized when he was arrested.  Specifically, Wright alleges
that because the arresting officer was beyond his territorial
jurisdiction the arrest was unlawful, and, therefore, the
evidence was illegally seized in the search incident to an
unlawful arrest.  We disagree and affirm the conviction.
                         I.  BACKGROUND
    During roll call, Investigator Danny Viar of the Lynchburg
Police Department learned of an outstanding capias for the arrest
of Jeffrey Scott Wright for his having failed to appear in court.
Viar testified that he did not know from which jurisdiction the
capias had been issued or that the charge for failure to appear
was for a misdemeanor offense.
    Viar, who was familiar with Wright and his vehicle, spotted
Wright while driving through Campbell County.  Viar radioed the
Campbell County dispatcher to send an officer to serve the
capias.  In the meantime, Viar stopped the appellant's vehicle in
Campbell County, which was beyond Viar's jurisdictional limit in
the City of Lynchburg.
      Viar approached the appellant's vehicle, showed appellant
his badge and told the appellant that a Campbell County officer
was en route to arrest appellant on the capias.  Although Viar
did not physically restrain Wright, Viar told him to stay until
the Campbell County deputy arrived and that Wright was "not going
to leave."  Ten minutes after Viar stopped Wright, a Campbell
County officer arrived and arrested Wright.  In a search incident
to the arrest, the Campbell County officer found LSD in Wright's
pocket.
    At trial, Wright filed a motion to suppress the LSD
contending it was obtained in a search incident to an illegal
arrest.  The trial court found that although Investigator Viar
had exceeded the scope of his jurisdiction as a Lynchburg police
officer by arresting Wright, Viar had legally arrested him as a
private citizen.  Accordingly, the trial court denied the motion
to suppress.  The correctness of that ruling is the issue before
us on appeal.
                         II.  ANALYSIS
    Investigator Viar's detention of the appellant was an arrest
and was not, as the Commonwealth argues, merely an investigative
stop.  Viar was not briefly detaining the appellant for the
purpose of conducting an investigation of suspected criminal
activity.  Rather, Viar had restricted Wright from leaving the
roadside, he had told Wright that he was not free to leave, and
that Wright had to remain there until the Campbell County deputy
arrived to formally take him into custody.  Under the
circumstances, a person of ordinary intelligence and
understanding would believe that he was not free to leave and
was, therefore, under "arrest."  See United States v. Mendenhall,
446 U.S. 544, 553-54 (1980); Castell v. Commonwealth, 21 Va. App.
78, 81-82, 461 S.E.2d 438, 439 (1995).  Accordingly, the trial
court did not err in holding that Viar had arrested Wright
without a warrant.  Thus, we must next determine whether Viar's
extraterritorial arrest of Wright would require the exclusion of
the evidence seized in the search incidental to such an arrest.
    Generally, an arresting officer may search an individual as
an incident to a lawful arrest.  DePriest v. Commonwealth, 4 Va.
App. 577, 583, 359 S.E.2d 540, 543 (1987).  If, however, the
arrest is illegal in that it violates federal constitutional
protections, any evidence seized from a search pursuant to such
arrest is subject to the exclusionary rule, as mandated by Mapp
v. Ohio, 367 U.S. 643 (1961).  See Penn v. Commonwealth, 13 Va.
App. 399, 406, 412 S.E.2d 189, 193 (1991), aff'd per curiam, 244
Va. 218, 420 S.E.2d 713 (1992).
    However, in Penn, we held that "[i]n the absence of any
deprivation of constitutional rights, an arrest in violation of
state statute does not require exclusion of any evidence obtained
as a result of the arrest."  13 Va. App. at 408, 412 S.E.2d at
194.  The exclusionary rule adopted in Mapp does not operate to
exclude evidence from an arrest that is statutorily defective,
but otherwise constitutionally valid, id. at 406-07, 412 S.E.2d
at 193, and the Virginia Supreme Court has rejected the
invitation to adopt a state exclusionary rule for arrests that
are constitutionally valid but which may violate a statutory
provision.  See Horne v. Commonwealth, 230 Va. 512, 519, 339
S.E.2d 186, 191 (1986).  Therefore, in this case, even if Viar's
arrest of Wright was "illegal" because he was a Lynchburg police
officer who had exceeded his authority to arrest in Campbell
County or a private citizen who had no authority to arrest for a
misdemeanor, the dispositive issue is whether Viar's arrest of
Wright violated any federal constitutional guarantees which the
exclusionary rule, as enunciated in Mapp, was designed to
protect.
    The Fourth Amendment does not prohibit the state or a police
officer from making a warrantless arrest or seizure of a person
provided that the state or officer has probable cause to believe
that a crime has been or is being committed.  See Thompson v.
Commonwealth, 10 Va. App. 117, 121, 390 S.E.2d 198, 201 (1990)
(citing United States v. Watson, 423 U.S. 411 (1976)).  A police
officer has probable cause to arrest if the officer "had
knowledge of sufficient facts and circumstances to warrant a
reasonable man in believing that an offense has been committed."
DePriest, 4 Va. App. at 583, 359 S.E.2d at 543.
    Here, Investigator Viar had probable cause to arrest Wright
because he had learned at roll call that a capias for Wright's
arrest was outstanding, charging him with having failed to appear
in court.  The information provided Viar with sufficient facts to
reasonably believe that Wright had committed a criminal offense.
Wright does not contest this.
    Wright asserts that the LSD was seized from him in a search
pursuant to an unlawful arrest because Viar exceeded his
jurisdictional authority under Code   19.2-250.  However, that
claim of illegality as to the arrest does not involve a claim
that federal constitutional protections were violated which would
implicate the exclusionary rule.  Even if Investigator Viar
violated Code   19.2-250 or exceeded the common law authority of
a private citizen in arresting Wright for a misdemeanor, he
nonetheless constitutionally detained Wright.  Under the holding
in Penn, the exclusionary rule does not apply.  Accordingly, the
trial court properly denied the appellant's motion to suppress
the evidence.
    For these reasons, we affirm the conviction.
         Affirmed.                        

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