Barry Scott Hill v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 20, 2001
• Docket: 0405003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Agee Argued at Salem, Virginia

BARRY SCOTT HILL MEMORANDUM OPINION * BY v. Record No. 0405-00-3 JUDGE ROBERT J. HUMPHREYS MARCH 20, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROANOKE COUNTY Diane McQ. Strickland, Judge

Deborah Caldwell-Bono for appellant.

Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Barry Scott Hill appeals his conviction, after entering a

conditional guilty plea, for possession of a firearm after having

been convicted of a felony. Hill contends that the trial court

erred in failing to suppress the evidence against him, which he

argues was obtained as a result of an illegal stop and seizure.

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

881, 882 (2000). "[However,] [i]t is well established that, on

appeal, appellant carries the burden to show, considering the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. evidence in the light most favorable to the Commonwealth, that

the denial of a motion to suppress constitutes reversible

error." Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437

S.E.2d 232, 233 (1993). "Ultimate questions of reasonable

suspicion and probable cause . . . involve questions of both law

and fact and are reviewed de novo on appeal. This Court is

bound by the trial court's findings of historical fact unless

plainly wrong or without evidence to support them and we give

due weight to the inferences drawn from those facts by resident

judges and local law enforcement officers." Neal v.

Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d 422, 424 (1998)

(citations omitted).

Prior to trial, Hill submitted a motion to suppress the

evidence against him arguing that it was seized in violation of

the "rights afforded him by the United States Constitution and

in violation of the Constitutional Rights afforded him by the

Commonwealth of Virginia." The evidence presented during the

hearing on the motion established that on September 20, 1999,

Vinton Police Officer John R. Munsey received a "be on the

lookout" dispatch while he was patrolling the streets of Vinton

in his patrol car. The dispatch alerted officers to watch for a

"blue Toyota pickup truck" with Virginia license plate "LEGO-2."

Officer Munsey testified, without objection, that the dispatcher

told him the request was based upon information from the Roanoke

City Police Department indicating that a Roanoke police officer

- 2 - was taking a report from a complainant regarding a crime of

brandishing a firearm in the City of Roanoke.

Shortly thereafter, the vehicle driven by Hill pulled out

of a fast-food restaurant parking lot, in front of Officer

Munsey's patrol car. The description of the vehicle and the

license plate matched the description given in the dispatch.

Officer Munsey stopped the vehicle and identified the driver as

Hill. Officer Munsey then asked Hill if there were any firearms

in the vehicle, and Hill informed the officer that there was a

gun in the truck.

At a hearing on his motion, Hill argued that the arrest was

illegal pursuant to Code § 19.2-81, which applies to warrantless

arrests. 1 After the Commonwealth responded in argument that the

incident involved an investigatory stop, as opposed to an

arrest, Hill then argued that the incident "fell short of even a

constitutional Terry stop to be on the lookout for a vehicle

because a person is making a complaint." The trial court

overruled the motion to suppress finding that there was no

"arrest at the point the stop was made" and that even if there

was an "arrest," there was no constitutional violation which

1 Code § 19.2-81 provides the following, in pertinent part, "[s]uch officers may arrest, without a warrant, any person who commits any crime in the presence of the officer and any person whom he has reasonable grounds or probable cause to suspect of having committed a felony not in his presence . . . ."

- 3 - would require suppression of the evidence. We agree with the

trial court.

We first note that, on appeal, Hill does not raise the

issue of whether the stop constituted an "arrest" falling within

the purview of Code § 19.2-81, despite his focus on this

contention before the trial court. Instead, Hill expands upon

his brief argument to the trial court that the incident fell

short of a constitutional investigatory stop.

[W]hen the police stop a motor vehicle and detain an occupant, this constitutes a seizure of the person for Fourth Amendment purposes. In order to justify an investigatory stop of a vehicle, the officer must have some reasonable, articulable suspicion that the vehicle or its occupants are involved in, or have recently been involved in, some form of criminal activity. 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.

Neal, 27 Va. App. at 237, 498 S.E.2d at 424 (citations omitted).

"[W]hether [a] stop [i]s justified is dependent upon

whether the facts available to the officer at the moment of the

seizure or the search [would] warrant a man of reasonable

caution in the belief that the action was appropriate." Jackson

v. Commonwealth, 22 Va. App. 347, 352, 470 S.E.2d 138, 141

(1996) (citations omitted). However, "[t]he mere broadcast by

the police to be on the lookout for an individual, without more,

does not provide a patrol officer receiving such broadcast

- 4 - articulable and reasonable suspicion that criminal activity is

afoot." Motley, 17 Va. App. at 440-41, 437 S.E.2d at 233

(because there was no evidence presented at the suppression

hearing explaining the reason for the police broadcast, the

source or reliability of the information received, or any

corroboration by the arresting officer, the officer had no basis

to conduct a Terry stop).

Here, however, Officer Munsey based his stop of Hill's

vehicle on more than a "mere broadcast by the police to be on

the lookout for an individual." Officer Munsey was told to be

on the lookout for a vehicle of a specific description,

including the full license plate number. He was further

informed that the reason for the police dispatch was that a

Roanoke City police officer was "taking a report from a

complainant at the time" of the dispatch and that the basis of

the complaint was a brandishing of a firearm incident that had

occurred in Roanoke City. From this, Officer Munsey could

reasonably infer that the officer was taking the information in

a face-to-face interview with the complainant and that Hill, who

was driving the vehicle specifically described in the dispatch,

had been involved in the crime. At that point, Officer Munsey

had reason to stop Hill "for purposes of investigating possibly

criminal behavior, and in the course of the investigation

[Officer Munsey could] make reasonable inquiries . . . in order

to determine [Hill's] identity or to maintain the status quo

- 5 - momentarily while obtaining more information." Jones v.

Commonwealth, 230 Va. 14, 19, 334 S.E.2d 536, 540 (1985)

Thus, viewing the evidence in the light we must, we affirm

the trial court's holding that no constitutional violation

occurred and that there was, therefore, no basis upon which to

require suppression of the evidence obtained as a result of the

stop.

Affirmed.

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