Commonwealth of Virginia v. James Charles Dunigan ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 3013-00-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 29, 2001
JAMES CHARLES DUNIGAN
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
John R. Prosser, Judge
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellant.
Roger A. Inger (Massie, Inger & Iden, P.C.,
on brief), for appellee.
James Charles Dunigan (defendant) was indicted for driving
after having been declared an habitual offender, in violation of
Code § 46.2-357, driving while under the influence of alcohol, in
violation of Code § 18.2-266, and unreasonable refusal to submit
to a breath test, in violation of Code § 18.2-268.3. Defendant
filed a motion to suppress the evidence from the traffic stop on
the ground that the police lacked reasonable articulable suspicion
to stop the vehicle. The trial court granted the suppression
motion, and the Commonwealth appeals that ruling. We reverse the
trial court's ruling.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
On the evening of October 16, 1999 at approximately
10:00 p.m., Deputy Pat Grim (Grim) of the Frederick County
Sheriff's Office was on patrol in the parking lot of Delco Plaza.
A security officer from the Belle Star Restaurant approached Grim
and pointed out three men who were walking toward a van in the
parking lot. He told Grim that he believed the men were too
intoxicated to drive. Grim approached the three men and spoke
with them. Grim determined that they had been drinking. The men
agreed not to drive, to go to Waffle House to get something to eat
and to call someone to come and "get them."
An hour later Grim returned to the parking lot and noticed
the same van driving toward him. When the van got close enough
for the driver and Grim to make eye contact, the van made a 45
degree turn in front of Grim, pulled up to the curb of the parking
lot and "the driver got out and ran." Grim did not give chase but
put out a radio broadcast of the driver's description. Defendant
and another passenger remained in the van and spoke with Grim.
Grim took the two men back to the Waffle House. Grim observed the
defendant and the other man for about fifteen minutes and noticed
that they were still "intoxicated too much to drive."
Shortly before midnight Grim met with and spoke to Trooper
Reginald Hoelen (Hoelen) of the Virginia State Police. Grim
pointed out the van, which was about 200 yards away, and told
Hoelen, "[i]f you see that van later, the guy is probably
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intoxicated because he bailed out and ran." Grim informed Hoelen
that he believed "that the original driver was probably hiding
somewhere waiting for the police to kind of disappear and come
back and get his van," since that happens often if the vehicle is
not towed.
At approximately "1:10/1:15, . . . an hour and a half or
hour and forty-five minutes later," Hoelen returned to the area
and saw that the van was gone. Hoelen drove toward Front Royal
searching for the van. Just before Airport Road, Hoelen saw the
van and paced the vehicle at 46 miles per hour in a 55 mile per
hour zone. The van appeared "to be very tenuous or cautious
about everything they did." The van turned onto Papermill Road
and pulled off the road next to a cemetary. There were no
houses or open businesses nearby. Hoelen activated his
emergency equipment as he pulled to the side of the road. The
defendant got out of the driver's side of the van. Hoelen asked
him for his driver's license and registration. Defendant
admitted that he was driving on a restricted license and was
arrested.
Hoelen testified that driving 46 miles per hour in a 55
mile per hour zone is unusual when there is no one else on the
road and that it often is an indication of intoxication.
Defendant filed a motion to suppress, contending the officer
lacked reasonable articulable suspicion to initiate the traffic
stop. The trial court found that "the Trooper had plenty of
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cause or reasonable, articulable suspicion to fall in behind the
van and follow it and observe it and keep it under surveillance"
but that Hoelen lacked reasonable, articulable suspicion to stop
the van because it was driven in a lawful manner. The
Commonwealth appeals that ruling.
II.
In reviewing the trial court's ruling on a motion to
suppress, we consider the evidence in the light most favorable
to the prevailing party below, the defendant, granting to that
evidence all reasonable inferences, and the trial court's
decision will not be disturbed unless it is plainly wrong or
without evidence to support it. See Miller v. Commonwealth, 16
Va. App. 977, 979, 434 S.E.2d 897, 899 (1993). "'"Ultimate
questions of reasonable suspicion and probable cause"' . . .
involve questions of both law and fact and are reviewed de novo
on appeal." Wallace v. Commonwealth, 32 Va. App. 497, 503, 528
S.E.2d 739, 742 (2000) (quoting McGee v. Commonwealth, 25 Va.
App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) (quoting
Ornelas v. United States, 517 U.S. 690, 691 (1996))). However,
we are bound by the trial court's factual determinations unless
plainly wrong or without evidence to support them, granting
deference to inferences reasonably drawn from those facts by
police officers and "independently determine whether under the
established law those facts satisfy the constitutional
standard." Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d
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921, 924 (2000) (citing Ornelas, 517 U.S. at 697-99); see also
Giles v. Commonwealth, 32 Va. App. 519, 522, 529 S.E.2d 327, 329
(2000).
In order for a stop to be reasonable, the officer "'must be
able to point to specific articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant'" the stop. Buck v. Commonwealth, 20 Va. App. 298, 302,
456 S.E.2d 534, 536 (1995) (quoting Terry v. Ohio, 490 U.S. 1,
21 (1968)). "A reasonable articulable suspicion is more than an
'unparticularized suspicion or "hunch"'" requiring "at least a
minimal level of objective justification" for the stop. Bass,
259 Va. at 475, 525 S.E.2d at 923 (citations omitted).
"Suspicion of a 'particular crime' is not necessary 'to justify'
a Terry stop, provided 'the officer can, based on the
circumstances before him at the time, articulate a reasonable
basis' for a 'general suspicion of some criminal activity.'"
Miller, 16 Va. App. at 979-80, 434 S.E.2d at 899 (quoting
Hatcher v. Commonwealth, 14 Va. App. 487, 490, 419 S.E.2d 256,
258 (1992); Wells v. Commonwealth, 6 Va. App. 541, 551, 371
S.E.2d 19, 24 (1988)). "The court must consider the totality of
the circumstances in determining whether a police officer had a
particularized and objective basis for suspecting that a person
stopped may be involved in criminal activity." Bass, 259 Va. at
475, 525 S.E.2d at 924. The court must consider in determining
if reasonable suspicion exists that "'[t]rained and experienced
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police officers . . . may be able to perceive and articulate
meaning given conduct which would be wholly innocent to the
untrained observer.'" Buck, 20 Va. App. at 302, 456 S.E.2d at
536 (quoting Richards v. Commonwealth, 8 Va. App. 612, 616, 383
S.E.2d 268, 271 (1989) (citing United States v. Brignoni-Ponce,
422 U.S. 873, 883-84 (1975))).
Applying those standards to the instant case, we find the
trial court erred. Hoelen knew of the two confrontations Grim
had with the three intoxicated men and the van that evening.
Grim identified the van to Hoelen. Hoelen noted its distinctive
coloring and tag number. Hoelen, based on information provided
by Grim, a trained police officer, was aware that during the
second encounter with the van, the driver, upon making eye
contact with the officer, got out of the van and fled. We have
previously held that flight from a police officer standing alone
may not necessarily indicate criminal activity, but it is a
factor in determining reasonable suspicion. See Wallace, 32 Va.
App. at 504, 528 S.E.2d at 742; Buck, 20 Va. App. at 303, 456
S.E.2d at 536; see also Illinois v. Wardlow, 528 U.S. 119,
124-26 (2000). From his first interaction with the three men
and the van, Grim observed that all of the men were too
intoxicated to drive the van. They were told not to drive, and
the three men agreed to call someone to pick them up. A short
time later, Grim saw the van in motion and when the driver made
eye contact with Grim, he fled the scene. The driver's flight
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in the totality of these circumstances reasonably led Grim to
believe that the driver was not someone other than the three men
who were still too intoxicated to drive. It was clear at that
point that contrary to their agreement not to drive, they had in
fact done so.
Although Hoelen was not a part of the initial
confrontations, he had a reasonable basis to believe that the
driver of the van might be intoxicated that evening. Grim told
him "[i]f you see that van later, the guy is probably intoxicated
because he bailed out and ran." Hoelen was also told "that the
original driver was probably hiding somewhere waiting for the
police to kind of disappear and come back and get his van." Thus,
when Hoelen observed that the van was no longer in the parking lot
he reasonably believed that the driver, along with the passengers
who had been drinking and were too intoxicated to drive, had
returned to the van and driven away. After Hoelen found the van,
further evidence corroborated Grim's statements to him that the
driver was likely intoxicated. As Hoelen followed the van, the
"vehicle appeared to be very tenuous or cautious about everything
they did" as it drove only 46 miles per hour in a 55 mile per hour
zone. Hoelen testified that these are possible signs of an
intoxicated driver. See Freeman v. Commonwealth, 20 Va. App. 658,
662, 460 S.E.2d 261, 263 (1995) (holding that driving at a slow
speed is a factor to be considered in determining reasonable
suspicion).
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This is not a case where Hoelen received information about
a possible crime from an anonymous informant. Hoelen obtained
his information from Grim, a law enforcement officer, in person.
Grim had firsthand knowledge of the criminal activity and
explained the basis of that knowledge to Hoelen. See generally
Giles, 32 Va. App. at 524, 529 S.E.2d at 329 (holding that a
report from a citizen obtained by a police officer in person is
different from an anonymous tip because the officer is able to
"assess their credibility and the reliability of their
information" particularly when they explain the source of their
information). Thus, we find that Hoelen was justified in
relying upon the information he obtained from Grim.
Defendant also argues that since Hoelen did not know who the
driver was, it could have been a third party the three men told
Grim they would call to drive them home. Thus, defendant argues
that it was possible that no criminal activity was taking place.
However, the standard is not whether a criminal act is occurring
but whether the officer had a reasonable articulable suspicion
that the person may be involved in criminal activity. See Bass,
259 Va. at 475, 525 S.E.2d at 924. After learning of Grim's
interactions with the three men and the van and that the three men
were too intoxicated to drive, Hoelen observed conduct that was,
as defendant asserts, ambiguous and susceptible to an innocent
explanation. However, the observed conduct also supported
Hoelen's reasonable belief that the driver who fled from Grim had
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returned and was still too intoxicated to drive the van.
Accordingly we hold that reasonable articulable suspicion
supported Hoelen's stop of the van. For the foregoing reasons,
the ruling of the trial court is reversed, and the case is
remanded for trial.
Reversed and remanded.
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