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DORSEY v. COMMONWEALTH




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DORSEY

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Clements

Argued at Alexandria, Virginia

Record No. 2316-02-4

MICHAEL BERNARD DORSEY

v.

 

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY CHIEF JUDGE JOHANNA L. FITZPATRICK

NOVEMBER 25, 2003

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

R. Terrence Ney, Judge

Robert F. Horan, III (Hart & Horan, P.C., on brief), for
appellant.

Virginia B. Theisen, Assistant Attorney General (Jerry W.
Kilgore,

Attorney General, on brief), for appellee.

Michael Bernard Dorsey (appellant) contends the trial court
erred in denying his motion to

suppress evidence because the police lacked probable cause to
arrest him and seize evidence from

his person and car. At trial, a jury convicted him of grand
larceny in violation of Code ? 18.2-95,

two counts of petit larceny in violation of Code ? 18.2-96,
credit card theft in violation of Code

? 18.2-192, credit card forgery in violation of Code ?
18.2-193, and two counts of fraudulent use of

a credit card in violation of Code ? 18.2-195. Finding no
error, we affirm.

I. BACKGROUND

"On appeal from a denial of a suppression motion, we must
review the evidence in the

light most favorable to the Commonwealth, giving it the benefit
of any reasonable inferences."

Barkley v. Commonwealth, 39 Va. App. 682, 687, 576 S.E.2d 234,
236 (2003); see also Bass v.

Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000).

On March 2, 2001, Kenneth Leahman went to Tyson’s Corner Mall
and parked his car

beneath the Lord and Taylor department store. He entered the
mall to wait for his family.

Shortly thereafter, he returned to the car and immediately saw
that the passenger window had

been broken and several things were missing from his car,
including a laptop computer, a palm

pilot, business cards, a checkbook, and a credit card. Leahman
called 911 to report the incident.

On the same day, Barbara Holmes (Holmes) and Rosalind Daniel
(Daniel) also went to

Tyson’s Corner Mall. While there, Daniel received a call from
her brother telling her to contact

the Fairfax County Police. Fairfax Detective Mulvey took Daniel
and Holmes to Daniel’s car.

At the car, they discovered glass from the car window on the
garage floor. A coat, an electronic

organizer, and a pair of shoes belonging to Daniel had been
taken, and a coat and electronic pad

belonging to Holmes were also missing.

Later that day, Detective Scott Powell (Powell) of the Fairfax
Police Department saw

appellant run a stop sign near Nordstrom’s department store,
at Tyson’s Corner Mall, "at a high

rate of speed." He had a passenger in the front seat.
Appellant was wearing a brown suede coat.

Powell found the car parked in front of Bloomingdale’s
department store within one minute of

seeing it run the stop sign. Powell identified it as the same
vehicle that ran the stop sign because

of its red color, rental plates, and passenger.

Powell saw the passenger, Kenyota Williams, leave the car, take
clothing, bags, and a

briefcase from the passenger side backseat, and put them
underneath a car parked next to him.

He then took items from the driver’s side backseat and put
them underneath a car on the driver’s

side. Williams began pacing and talking on a cell phone, and
entered the mall. Powell followed

him inside. Detective Kuemmel, who remained near the car,
retrieved a white index card that

contained the name of Kenneth Leahman from underneath one of the
cars where Williams had

hidden the items. Kuemmel took the card and a day planner to
Bloomingdale’s Loss Prevention

Office in an attempt to identify the owner of the items.

After entering the mall, Powell recognized appellant as the
driver of the red car and saw

him purchase an item from the camera shop with a credit card. He
identified appellant as the

driver of the car because he was wearing the same brown coat he
wore when running the stop

sign. While Powell watched appellant, Kuemmel told Powell that
he had found items belonging

to Kenneth Leahman near the car and that Leahman was a
complainant in one of the vehicle

tampering and destruction of property cases on hold that day. At
that time, Powell identified

himself as a police officer and stopped appellant. He handcuffed
appellant, conducted a

pat-down, and discovered a screwdriver in his pocket. He placed
appellant in the backseat of his

police car.

The complainants from the tampering cases identified some of the
recovered items as

their property. Powell then told appellant he was under arrest
for possession of stolen property,

and searched him incident to the arrest. Powell found receipts
from Bloomingdale’s in

appellant’s pants pocket, and a D.C. driver’s license and a
credit card in the name of Kenneth

Leahman.

At the conclusion of the suppression hearing, the trial court
found that there was more

than a reasonable, articulable suspicion for Powell to detain
appellant inside the mall, place him

in handcuffs, and escort him out of the mall. Further, the trial
court found that the evidence

available to Powell at the time of the stop constituted probable
cause to believe that appellant

was involved in the tampering incidents and possessed stolen
property, even though only a

reasonable, articulable suspicion was necessary. The court also
found that the use of handcuffs

at the time of the initial stop did not convert the
investigative stop into an arrest. Finally, the trial

court determined that after finding the screwdriver in appellant’s
pocket, Powell had probable

cause to arrest appellant and denied the motion to suppress.

II. MOTION TO SUPPRESS

"In reviewing a trial court’s denial of a motion to
suppress, ‘[t]he burden is upon [the

defendant] to show that th[e] ruling, when the evidence is
considered most favorably to the

Commonwealth, constituted reversible error.’" McGee v.
Commonwealth, 25 Va. App. 193,

197, 487 S.E.2d 259, 261 (1997) (en banc) (alterations in
original) (quoting Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
"‘Ultimate questions of

reasonable suspicion and probable cause to make a warrantless
search’ involve questions of both

law and fact and are reviewed de novo on appeal."
Id. (quoting Ornelas v. United States, 517

U.S. 690, 691 (1996)). "Similarly, the question whether a
person has been seized in violation of

the Fourth Amendment is reviewed de novo on appeal."
Reittinger v. Commonwealth, 260 Va.

232, 236, 532 S.E.2d 25, 27 (2000). However, "‘we are
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.’" Londono v. Commonwealth, 40 Va. App. 377,
396, 579 S.E.2d 641, 650 (2003)

(quoting McGee, 25 Va. App. at 198, 487 S.E.2d at 261 (citing
Ornelas, 517 U.S. at 699)). Our

review of the record includes evidence adduced at both the trial
and the suppression hearing.

Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138,
139 (1994).

Appellant argues on appeal that the trial court erred in denying
his motion to suppress

because Officer Powell’s initial detention of appellant was an
arrest unsupported by probable

cause. We disagree. "The Supreme Court has recognized that
a police officer in appropriate

circumstances may detain a person for the purpose of
investigating possibly criminal behavior,

even though there is no probable cause to make an arrest."
Whitfield v. Commonwealth, 265 Va.

358, 361, 576 S.E.2d 463, 464 (2003). An investigatory detention
is justified "if the officer’s

action is supported by reasonable suspicion to believe that
criminal activity ‘may be afoot.’"

United States v. Arvizu, 534 U.S. 266, 273 (2002). This level of
suspicion does not "rise to the

level required for probable cause" and "falls
considerably short of satisfying a preponderance of

the evidence standard." Id. at 274. To justify such a
seizure, the officer must have possessed "a

reasonable and articulable suspicion of criminal activity on the
part of the defendant,"

Commonwealth v. Holloway, 9 Va. App. 11, 15, 384 S.E.2d 99, 101
(1989), based upon "the

totality of the circumstances." Wells v. Commonwealth, 6
Va. App. 541, 551, 371 S.E.2d 19, 24

(1988) (quoting United States v. Cortez, 449 U.S. 411, 417-18
(1981)).

The circumstances known to Powell at the time of the stop
satisfy this standard. He saw

appellant run through a stop sign at a high rate of speed, then
found the automobile parked near

Bloomingdale’s with the motor running and appellant missing.
The passenger was removing

items from the automobile and placing them underneath adjacent
automobiles. Before Powell

detained appellant, Kuemmel informed Powell by telephone that
some of the property under the

automobile belonged to a person who had reported a theft from
his automobile. These activities

alone provided a basis for the initial stop.

Appellant argues that Powell’s detention of appellant was an
arrest. There is no

litmus-paper test for distinguishing when a seizure exceeds the
bounds of an investigative stop.

Florida v. Royer, 460 U.S. 491 (1983). A brief but complete
restriction of a suspect’s liberty is

valid under Terry, and the police are permitted to use methods
of restraint that are reasonable

under the circumstances. See Thomas v. Commonwealth, 16 Va. App.
851, 857, 434 S.E.2d

319, 323 (1993). An officer may place handcuffs on a suspect
during such a seizure when

reasonable, and the use of handcuffs does not itself transform
the detention into an arrest. See id.

We agree with the trial court’s analysis that the initial stop
was an investigative detention.

Powell feared that appellant might notice he was being watched,
and flee. He recognized

appellant as the driver of the car that ran through the stop
sign because of his brown jacket. He

also obtained information that stolen items were located near
the same car. The investigative

detention lasted only long enough for Powell to take appellant
outside the mall and conduct the

pat-down search that revealed the screwdriver. Powell was
justified in taking appellant out of the

mall under the circumstances. Placing appellant in handcuffs did
not convert the "Terry stop" into

an arrest. Only after the complainants in the vehicle tampering
cases positively identified the

recovered merchandise as stolen, did Powell place appellant
under arrest and conduct a search

incident to the arrest.[2]

Finding no error, we affirm the judgment of the trial court.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]The trial
court also found that if probable cause was necessary at the time of the initial

stop, the officer had probable cause to arrest appellant at that
time. We agree.


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