Home / Fulltext Opinions / Virginia Court of Appeals / BROWN v. COMMONWEALTH

BROWN v. COMMONWEALTH




NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.


BROWN

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank

Argued at Salem, Virginia

Record No. 0328-03-3

ROSSER LEE BROWN

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE ROBERT P. FRANK

DECEMBER 16, 2003

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG

J. Leyburn Mosby, Jr., Judge

B. Leigh Drewry, Jr. (Cunningham & Drewry, on brief), for

appellant.

Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

Rosser Lee Brown (appellant) was convicted in a bench trial of
one count of statutory

burglary with the intent to commit robbery while armed with a
deadly weapon, in violation of Code

? 18.2-90; four counts of robbery, in violation of Code ?
18.2-58; and four counts of 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 not granting his motion to suppress. He
argues the police did not have reasonable

suspicion to stop his vehicle and did not have probable cause to
arrest him. As we find the police

had reasonable suspicion for the stop and developed probable
cause for his arrest, we affirm the

judgments of the trial court.

BACKGROUND

On the evening of November 20, 2001, William Cofflin was driving
up to his home in

Lynchburg when he saw an unfamiliar, gray Jeep Cherokee parked
on a pile of leaves in front of his

house. He also saw four black males walking down the street. As
Cofflin pulled into his driveway,

he could see the Jeep’s windows were rolled down, although it
was a chilly day. The keys were in

the car’s ignition. Cofflin thought it peculiar that a
"nice vehicle" would be parked in a pile of

leaves.

Cofflin telephoned the police and reported a suspicious vehicle
parked in front of his house.

He provided his address, a description of the vehicle, and the
license number. Cofflin testified,

"that’s all I told them." He did not report the
reasons that he characterized the Jeep as suspicious.

When Cofflin looked again, the vehicle was driving off down the
street in the direction of

the Parkwood Trailer Park. Cofflin could not see who was in the
car. He found it odd that the

headlights were not illuminated, as it was dark.

Officer Ferron received the dispatch referencing the suspicious
vehicle in front of Cofflin’s

house. The dispatch gave Ferron the tag number of the vehicle
and its make, a "gray Jeep." As

Ferron approached the address, Cofflin flagged down the officer
and told him that the Jeep had just

driven away. Ferron drove in the same direction as the Jeep.[2]Cofflin
testified he did not provide

the reasons why he found the Jeep "suspicious" until
the police called him later that evening.

As Officer Ferron was looking for the Jeep, he received a second
dispatch about an armed

robbery at the Parkwood Trailer Court.[3]
The suspects were described as four or five black males.

Ferron testified at the suppression hearing that he believed
"there was [a] possibility that the

suspicious vehicle [Cofflin] had told me about and this robbery
may be connected." The officer

knew the trailer park was in the "next block down"
from Cofflin’s house.

Officer Ferron proceeded to the Parkwood Trailer Court. After
Ferron interviewed the

robbery victims, he advised the dispatcher to "put out a be
on the lookout for [the Jeep]." Ferron

believed the suspicious vehicle reported by Cofflin might be
connected to the robbery because it

was parked a block away from the trailer court. Over appellant’s
objection, Ferron was allowed to

testify how he connected the suspicious vehicle with the
robbery:

I knew the location of the suspicious vehicle. It was a block
away

from the trailer court where the robbery supposedly occurred.

Both calls, the suspicious vehicle call, had four to five black
males

leaving the vehicle. The robbery call was four black males.

Officer Ferron did not indicate that anyone at the scene of the
robbery had seen the suspects drive

away in a Jeep.

Investigator Danny Viar was monitoring the police radio
bulletins while driving in his

personal car to the police station. Viar testified he heard the
dispatch advising that several black

males, driving a Jeep with license plate number of YGW6976, were
suspects in a robbery. He then

saw the Jeep parked at a convenience store. Investigator Viar
observed several black males exit the

convenience store and drive away in the Jeep.

On Investigator Viar’s order, Officer Sexton activated the
lights on his police vehicle and

stopped the Jeep.[4]
He and other officers approached the Jeep with their guns drawn. They removed

the occupants, including appellant, who was driving. The
suspects were handcuffed and held at the

scene of the stop for a "drive by lineup." The police
drove each robbery victim by the Jeep to

determine if any of them could identify the suspects as the
assailants. Several victims recognized

the suspects by their clothing. No one could recognize their
faces.

Investigator Viar was informed that the victims had identified
the suspects. Officers at the

scene of the stop observed a gun and several items taken during
the robbery, including a Sony Play

Station and CDs, on the back floorboard of the Jeep in plain
view. Based upon this information,

Viar ordered the officers on the scene to transport the suspects
to police headquarters. During the

drive to the police station, appellant spontaneously asked if he
could have the BB gun from the Jeep

because his mother used it to shoot stray dogs.

During a videotaped interview at the police station, taken
within two hours of the offense,

appellant initially denied any involvement in the offense.
However, he later admitted taking his gun

into the trailer and stealing a car radio. He claimed his
cohorts actually committed the robberies.

During the suppression hearing, appellant argued his detention
and arrest were unlawful,

contending all evidence flowing from the stop should be
suppressed. The trial court found the

police had reasonable suspicion to stop the Jeep. The court also
held the victims’ identification of

the men by their clothing and the fruits of the crime in the
vehicle provided probable cause for

appellant’s arrest.

ANALYSIS

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." Fore v. Commonwealth, 220
Va.

1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017

(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. Ornelas v.
United

States, [517 U.S. 690, 691,]116 S. Ct. 1657, 1659, 134 L.Ed.2d

911 (1996). In performing such analysis, 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. Id. at [699,] 116 S. Ct. at 1663. We
analyze

a trial judge’s determination whether the Fourth Amendment was

implicated by applying de novo our own legal analysis of
whether

based on those facts a seizure occurred. See Satchell v.

Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253, 256

(1995) (en banc); see also Watson v. Commonwealth, 19 Va.
App.

659, 663, 454 S.E.2d 358, 361 (1995).

McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc)

(footnote omitted).

If the articulated facts support "a reasonable suspicion
that a person has committed a

criminal offense, that person may be stopped in order to
identify him, to question him briefly, or

to detain him briefly while attempting to obtain additional
information." Hayes v. Florida, 470

U.S. 811, 816 (1985). In reviewing the record to make a
determination of reasonable suspicion,

we consider the "totality of the circumstances and view
those facts objectively through the eyes

of a reasonable police officer with the knowledge, training, and
experience of the investigating

officer." Murphy v. Commonwealth, 9 Va. App. 139, 144, 384
S.E.2d 125, 128 (1989).

Applying these principles to the present case, we conclude the
police had reasonable

suspicion to stop the Jeep. During the motion to suppress,
Officer Ferron testified he was

dispatched to investigate a "suspicious" Jeep parked
on Parkwood Avenue. The dispatcher

described the vehicle by its make and license number. When
Ferron arrived at Parkwood

Avenue, Cofflin "flagged" him down. Although the
officer tried to testify that Cofflin told him

why the vehicle was suspicious, the trial court sustained
appellant’s objection to that testimony.

As Ferron drove off in the direction that the Jeep left, he
heard a dispatch that four black

males had committed a robbery at a nearby trailer park. At this
point, he knew that a vehicle,

considered "suspicious" by a known citizen informer,[5]had
been parked close to the scene of a

robbery at the same time as the robbery. He also knew that four
or five black males were seen

leaving the suspicious vehicle and that four black males were
involved in the robbery. He knew

the Jeep had departed the area at approximately the same time
the robbers were leaving the area.

Based on this information, Officer Ferron had reasonable
suspicion to request issuance of

a "be on the look out" for the Jeep. When Investigator
Viar saw the Jeep and asked Officer

Sexton to initiate the stop, he was not acting merely on an
unparticularized "hunch," but on

reasonable suspicion. See Ramey v. Commonwealth, 35 Va. App.
624, 629, 547 S.E.2d 519,

522 (2001). This exact vehicle was observed, parked
suspiciously, close to the scene of a

robbery at approximately the time of the robbery. The vehicle
then left the area at the same time

that the robbers were leaving the area. The same number of men
that were involved in the

robbery were seen getting out of the vehicle. Based on these
factors, the officers could stop

appellant, who was driving the Jeep, "to determine his
identity or to maintain the status quo

momentarily while obtaining more information."[6]
Adams v. Williams, 407 U.S. 143, 146

(1972). See also Miller v. Commonwealth, 16 Va. App. 977,
979-80, 434 S.E.2d 897, 899-900

(1993).

Appellant also argues the police did not have probable cause to
arrest him after the stop.

We disagree. Based on the information collected during the
investigative stop, the police did

have probable cause to arrest appellant and take him to the
police station.

A law enforcement officer may lawfully arrest, without a
warrant,

for a felony or upon "reasonable suspicion" that a
felony has been

committed by the arrested person. Muscoe v. Commonwealth, 86

Va. 443, 10 S.E. 534 (1890). See also Byrd v. Commonwealth,

158 Va. 897, 164 S.E. 400 (1932).

The test of constitutional validity is whether at the moment of

arrest the arresting officer had knowledge of sufficient facts
and

circumstances to warrant a reasonable man in believing that an

offense has been committed. Brinegar v. United States, 338 U.S.

160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); Fierst v.

Commonwealth, 210 Va. 757, 173 S.E.2d 807 (1970).

Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250
(1970). The officers in this

case had sufficient facts to warrant a belief that appellant was
involved in the commission of an

armed robbery.

The officers knew that appellant was driving a vehicle seen in
the vicinity of the trailer

park both before and after the robbery. He and his companions
matched the general description

of the robbers. Although the victims could not identify them by
their faces, several of the

victims indicated that appellant and his companions were wearing
clothes that the robbers were

wearing. Additionally, the police observed a gun and several
items taken during the robbery in

the Jeep. Based on the "totality of the
circumstances," the officers had probable cause to arrest

appellant. See Washington v. Commonwealth, 219 Va. 857, 862, 252
S.E.2d 326, 329 (1979).

As the evidence supports the trial court’s finding that the
officers had reasonable

suspicion to stop the Jeep and probable cause to arrest
appellant, we affirm the convictions.

Affirmed.

 

FOOTNOTES:

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

 

[2]When Ferron
began to testify what Cofflin told him to explain why he thought the

vehicle was suspicious, the trial court sustained appellant’s
objection to the hearsay. Therefore,

Ferron was not allowed to testify about the information given to
him by Cofflin. The trial court

only allowed Ferron to testify as to the information contained
in the dispatch.

 

[3]The robbery
was reported at 8:15 p.m. Cofflin’s call came in sixteen minutes earlier.

 

[4]Sexton did not
observe any criminal behavior or traffic violations before he stopped the

vehicle.

 

[5]On appeal,
appellant attempts to argue Cofflin was not a reliable informant and attempts

to equate his observations to those of an anonymous tipster.
However, he did not present this

argument to the trial court, therefore, he did not preserve this
issue for appeal. See Rule 5A:18;

Scott v. Commonwealth, 31 Va. App. 461, 464-65, 524 S.E.2d 162,
163-64 (2000).

 

[6]Appellant
attempts to argue on appeal that the length and circumstances of the initial

detention changed the nature of the stop into an arrest, for
which no probable cause existed.

However, at trial he argued that "when the arrest was
actually made, which was the transport

down to [the police station], it was insufficient grounds to do
that." Again, as appellant did not

present his argument regarding the length and circumstances of
the detention to the trial court,

we cannot not consider that argument on appeal. See Rule 5A:18;
Scott, 31 Va. App. at 464-65,

524 S.E.2d at 163-64.


Scroll To Top