Preview:

COURT OF APPEALS OF VIRGINIA Present: Judges Benton, Elder and Bumgardner Argued by teleconference ANGELO LEWIS FORD v. Record No. 0119-97-2

COMMONWEALTH OF VIRGINIA

OPINION BY JUDGE RUDOLPH BUMGARDNER, III SEPTEMBER 1, 1998

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge D. Gregory Carr (Bowen, Bryant, Champlin & Carr, on brief), for appellant. Richard B. Smith, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Angelo Ford was convicted of grand larceny during a bench trial. The appellant contends the court erred by denying his (1) the stop was invalid; (2) the

motion to suppress because:

appellant was subjected to custodial interrogation without being given Miranda warnings; and (3) the show-up was unduly suggestive. In addition, the appellant alleges the trial court

erred in denying his motion challenging the sufficiency of the evidence. decision. The evidence at the appellant's trial proved that, on November 27, 1995, Detective J.A. Capocelli observed the appellant walking with two women in the parking lot of the Cloverleaf shopping mall. plastic bag. The appellant was carrying a white For the following reasons, we affirm the trial court's

As they approached a wooded area on the east side

of the lot, the appellant and the two women looked over their shoulders several times. The appellant then separated from the

two women and entered a wooded area adjacent to the parking lot. Detective Capocelli lost sight of the appellant for the minute or two he was in the wooded area. The appellant then exited the

woods without the white plastic bag and returned to the two women. The appellant and one of the women started walking toward

the woods together but then turned back and joined the second woman. All three then walked into the mall.

After the appellant and the two women entered the mall, Detective Capocelli went into the wooded area and "after about ten seconds of searching, . . . found a white plastic bag hidden underneath two old mattresses that were disposed in the woods." The bag was similar in appearance to the one he had earlier seen the appellant carry into the wooded area. found. No other white bag was

Inside the bag were five pieces of women's clothing that The clothing had store tags indicating they There was no sales slip

were "rolled up."

came from a store named "Lane Bryant." or receipt inside the bag.

Detective Capocelli replaced the

clothing and the bag in the wooded area and returned to his car. About thirty to forty-five minutes after Detective Capocelli had seen the appellant and the two women enter the mall, the detective observed them exit the mall and walk east on Midlothian Turnpike. Detective Capocelli and three uniformed police

officers, who had been informed of the detective's observations, - 2 2

stopped the appellant and the two women by approaching them in vehicles with blue police lights activated. Detective Capocelli

exited his vehicle and approached the appellant while two officers exited their cars and approached the two women. Detective Raymond Michael Louth attempted to ascertain whether the appellant had been in Lane Bryant that day. Detective Capocelli asked the appellant for his name and any identification. The appellant provided neither. While most

questions were geared toward identification, Detective Capocelli did ask the appellant if he could explain his actions in the parking lot. Early during the stop, the appellant denied being

on the mall property, denied carrying a bag, and denied knowing the two females with him. Detective Capocelli testified at trial

that the appellant was not free to leave and that he asked the appellant many questions more than once. The appellant was read

his Miranda rights about thirty minutes after he was stopped. The appellant subsequently asked for an attorney. Detective Louth, who had observed the appellant and the two women in the mall, retrieved the white bag from the woods after Detective Capocelli had told him where it was located. Louth then took the clothing in the bag to Lane Bryant. Detective He drove

a store clerk to where Detective Capocelli was talking to the appellant, but the clerk did not recognize him. Detective Louth

then transported another clerk, Nicole Dance El, to the scene of the appellant's stop. Although Ms. El had not previously given a - 3 3

description of the appellant to Detective Louth, she told him that the people being detained had been in the store that day; she recognized a hat worn by one of the women. Ms. El recalled

the appellant and the two women because they were one of only two customers she had assisted that day. She had noted nothing

unusual about the appellant's behavior in the store. Ms. El testified that when items are purchased from Lane Bryant, the store's practice is to have the cashier tear off the bottom half of the store tag. She also stated that the value of

the clothing in the bag was between $340-$350. I. Motion to Suppress

When a motion to suppress is reviewed on appeal, the burden is on the appellant to show that the ruling, when the evidence is considered in the light most favorable to the Commonwealth, constituted reversible error. See Fore v. Commonwealth, 220 Va.

1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980). We review the trial court's findings of historical fact

only for "clear error," but we review de novo the trial court's application of defined legal standards, such as "reasonable suspicion" and "custodial interrogation," to the particular facts of a case. See Shears v. Commonwealth, 23 Va. App. 394, 398, 477

S.E.2d 309, 311 (1996); see also Ornelas v. United States, 517 U.S. 690, 700 (1996). A police officer may stop and detain a person "for purposes of investigating possible criminal behavior even though there is - 4 4

no probable cause to make an arrest."

Terry v. Ohio, 392 U.S. 1,

22 (1968); DePriest v. Commonwealth, 4 Va. App. 577, 585, 359 S.E.2d 540, 544-45 (1987), cert. denied, 488 U.S. 985 (1988). Investigative stops must be based on articulable facts supporting a reasonable suspicion that, based on the totality of circumstances, the suspect detained has committed or is about to commit a crime. See United States v. Cortez, 449 U.S. 411,

417-18 (1981); Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982) (a stop requires a less stringent test than probable cause); DePriest, 4 Va. App. at 584, 359 S.E.2d at 543. A trained and experienced police officer may be able to

detect criminal behavior that might appear innocent to an untrained observer. See Cortez, 449 U.S. at 418; Taylor v.

Commonwealth, 6 Va. App. 384, 388, 369 S.E.2d 423, 425 (1988). We hold that Detective Capocelli had a reasonable, articulable suspicion that the appellant had committed a crime at the time he was stopped. The detective observed the appellant

walking from the mall toward a wooded area while carrying a white plastic bag and looking over his shoulder several times. He then

observed the appellant walk into a wooded area and emerge a few minutes later without the bag. The detective retrieved the bag

moments later and discovered it contained what appeared to be stolen items of women's clothing. Based on these facts,

Detective Capocelli could reasonably surmise that the appellant had engaged in criminal activity. - 5 5 See Cortez, 449 U.S. at

421-22.

In addition, the record established that the detective

communicated this information to the other officers who assisted in the stop. Detaining suspects expeditiously to avoid their

possible flight or remaining at large promotes the government's interest in solving crimes and bringing offenders to justice, United States v. Hensley, 469 U.S. 221, 229 (1985), and in this case, Detective Capocelli and the other officers acted with dispatch. As such, we cannot say that the trial court erred when

it concluded that the investigative stop was valid. Next we consider whether the appellant was in custody when questioned. An investigative stop requires Miranda safeguards See

when, considering all factors, a suspect is "in custody."

Wass v. Commonwealth, 5 Va. App. 27, 32, 359 S.E.2d 836, 839 (1987); Commonwealth v. Milner, 13 Va. App. 556, 558, 413 S.E.2d 352, 353 (1992) (citing Berkemer v. McCarty, 468 U.S. 420, 440 (1984)). Whether a suspect is "in custody" under Miranda is

determined by the circumstances of each case, and "the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) A temporary detention for purposes of

(citation omitted).

investigation, without more, does not necessarily render a person "in custody." See United States v. Brignoni-Ponce, 422 U.S. 873,

881-82 (1975); DePriest, 4 Va. App. at 587, 359 S.E.2d at 545; Dixon v. Commonwealth, 11 Va. App. 554, 556, 399 S.E.2d 831, - 6 6

832-33 (1991). In this case, the evidence supports the trial court's finding that the appellant was not in custody at the time his statements were made. The appellant was detained on a public Although he was not free While

street in the middle of the afternoon.

to leave, he was not restrained, handcuffed, or searched.

four officers were present with police vehicles, there were three suspects, and one officer was ascertaining whether the appellant had been in the store. The appellant was not surrounded, and Most of the

only Detective Capocelli asked him questions.

questions were related to identification, and police may, within the scope of an investigative stop, ask a suspect to explain suspicious circumstances. 881-82. See Brignoni-Ponce, 422 U.S. at

Detective Capocelli testified that he never told the

appellant that he was being apprehended for alleged grand larceny. Under these circumstances, we cannot say that a

reasonable person in the appellant's position would have believed that his encounter with the officers had escalated from an investigative detention to an arrest. The thirty-minute detention before Miranda warnings were issued does not affect our decision. Much as a "bright line" rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria. * * * * * * *

In assessing whether a detention is too - 7 7

long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. United States v. Sharpe, 470 U.S. 675, 685-86 (1985). United States v. Alpert, 816 F.2d 958 (4th Cir. 1987) (fifty-minute delay for obtaining narcotics dog is permissible); Thomas v. Commonwealth, 16 Va. App. 851, 856-57, 434 S.E.2d 319, 322-23 (1993), aff'd, 18 Va. App. 454, 444 S.E.2d 275 (1994) (en banc) (lawful to handcuff and transport suspect in police vehicle to victim's house for identification); Burgess v. Commonwealth, 14 Va. App. 1018, 1022, 421 S.E.2d 664, 666 (1992) (forty-minute detention in police vehicle is permissible where police are determining whether car was stolen). Here, the appellant was subjected to an investigative stop for the purpose of determining whether he had been in the Lane Bryant store. The police saw him walking away from the mall and As a See

acted quickly to detain him for investigative purposes.

result of the stop, Detective Capocelli's suspicions were further aroused. The appellant made statements that contradicted the In addition, Detective Louth

detective's personal observations.

recovered the white plastic bag from the wooded area and determined that the clothing it contained had been stolen and that the appellant had been in Lane Bryant earlier in the day. The officers acted diligently and without unnecessary or - 8 8

deliberate delay to effectuate the purpose of the stop.

Thus, we

conclude that the trial court properly denied the appellant's motion to suppress. The appellant also contends the show-up was unduly suggestive and violated his due process rights. We disagree.

Pre-trial show-ups are not per se violative of constitutional rights. Reliability of the show-up is determined See Neil v.

by considering the totality of circumstances.

Biggers, 409 U.S. 188, 198-99 (1972); Yarborough v. Commonwealth, 15 Va. App. 638, 643, 426 S.E.2d 131, 134 (1993), rev'd on other grounds, 247 Va. 215, 441 S.E.2d 342 (1994). Courts should

consider the opportunity of the witness to observe the suspect at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the suspect, the level of certainty demonstrated by the witness' confrontation, and the length of time between the crime and the confrontation. See Neil, 409 U.S. at 199-200. In this case, the purpose of the identification was to determine whether the appellant had been in the store. store clerk did not recognize the appellant. the appellant with certainty. The first

Ms. El identified

She had observed the appellant in

her store, recalled speaking with one of the women with him, and very little time had elapsed between her observation of them in the store and the confrontation. expeditiously as possible. The show-up was conducted as

Based on these circumstances, we - 9 9

conclude that the show-up was not impermissibly suggestive. II. Motion to Strike

When an appeal challenges the sufficiency of the evidence, the evidence is viewed in the light most favorable to the Commonwealth, granting to it all reasonable inferences deducible therefrom. A judgment will not be disturbed unless plainly wrong See Code

Download 0119972.pdf

Virginia Law