Brown v. Com.

• Decision Date: 07 April 1998
• Docket Number: No. 2917-96-3,2917-96-3
• Citation: Brown v. Com., 497 S.E.2d 527, 27 Va.App. 111 (Va. App. 1998)
• Parties: Victoria Price BROWN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 527

497 S.E.2d 527

27 Va.App. 111

Victoria Price BROWN v.COMMONWEALTH of Virginia.

Record No. 2917-96-3.

Court of Appeals of Virginia Salem.

April 7, 1998.

A. Benton Chafin, Jr.(Brian M. Ely; Chafin and Chafin, P.C., on briefs), Abingdon, for appellant.

Ruth Ann Morken, Assistant Attorney General(Richard Cullen, Attorney General, on brief), for appellee.

Present: BAKER, COLEMAN and OVERTON, JJ.

BAKER, Judge.

Victoria Price Brown(appellant) appeals from a judgment of the Circuit Court of Washington County (trial court) that approved a jury verdict convicting her for obstructing justice by resisting arrest in violation of Code§ 18.2-460.¹Appellant resisted an attempt to arrest her by police officers who were acting pursuant to a capias issued for another person whose name was "Vicki R. Edwards, AKA Vicki Edwards Brown."Appellant contends that because the arrest was unlawful, she had the right to resist.The Commonwealth asserts that because the attempt to arrest was made in "good faith," it was lawful and, therefore, appellant had no right to resist.For the reasons that follow, we reverse the conviction.

Upon familiar principles, we state the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.SeeMartin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418(1987).The record discloses that on the afternoon of January 11, 1996, Abingdon Police Officers Hay and Slagle were dispatched to investigate a "domestic disturbance"at 284 B Street in Abingdon, the address at which appellant resided.While en route, Hay received a radio dispatch from Abingdon Police Sergeant Miller stating that he had "a capias for the subject at this residence."In fact, Miller had no such capias for appellant's arrest.In relevant part, the capias to which Miller referred gave the following authority to arrest:

ARREST THIS RESPONDENT:

EDWARDS, VICKI R.

506 Lowry Drive, Apt. # 1

Abingdon, VA 24210

AKA: Vicki Edwards Brown

W F 8 21 70 5 5 240 BR Br

224-39-9684

* * * *

In re/V.

Vicki R. Edwards

The officers testified they knew appellant as Vicki Brown and thought the capias was for appellant, notwithstanding that Edwards' address was on the other side of town from appellant's residence.²

Officers Hay and Slagle arrived at appellant's house first.When Sergeant Miller arrived, he gave the capias to Hay.The officers' statements regarding what happened next vary and sometimes conflict.Miller said that upon arrival at appellant's house, they made no investigation "at all" and did not ask for identification.Hay said that, while at the jail, appellant told them she thought the capias was for a debt that had been satisfied; Miller said she made that statement at her residence as they attempted to serve the capias.Hay said that appellant began to curse and kick and was sprayed with pepper gas as he was reading her the warrant; Miller said appellant was not sprayed until after she"wadded up the warrant and threw it on the floor."Slagle said Miller read the warrant to appellant; Hay said he read the warrant to appellant.Miller said appellant stayed on the couch where she kicked at one of the officers and that she never stood or jumped up.Slagle claimed appellant"jumped up" and "swung" at him.Hay contended appellant jumped up and kicked but did not aim the kick at any officer.Miller said it was aimed at one of the officers.None of the officers ever said, "I have a warrant for Vicki R. Edwards, AKA Vicki Edwards Brown."

It is apparent that the officers knew appellant as "Vicki Brown" and that while they attempted to execute the capias, appellant cursed, kicked without making any contact, and resisted arrest.The Commonwealth concedes that appellant was not the person named in the capias.Although the officers read the warrant to appellant, none testified that they specifically told appellant that the capias showed the warrant was to arrest "Edwards, Vicki R. ...AKA Vicki Edwards Brown," as it was in fact.

When the Commonwealth rested, appellant moved to strike the evidence against her.Appellant argued that because the capias was for Vicki R. Edwards, who was shown to reside at an address different from that of appellant, the attempt to arrest was "a warrantless arrest," without probable cause, for a misdemeanor not committed in the officers' presence.Appellant further argued that, in Virginia, "a person has the absolute right to resist an illegal arrest by whatever force is necessary and reasonable under the circumstances."

The Commonwealth contends that, notwithstanding the officers' arrest of the wrong person, because the arrest was made in good faith, appellant had no right to resist.We disagree.

In Polk v. Commonwealth, 4 Va.App. 590, 596, 358 S.E.2d 770, 773(1987), this Court clearly established that "an individual is not entitled to resist a lawful arrest."All authorities are in agreement on this legal principle.

Contending that the arrest was lawful, the Commonwealth cites several cases holding that erroneous arrests were held to be lawful when made in "good faith."See, e.g., Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484(1971);DeChene v. Smallwood, 226 Va. 475, 311 S.E.2d 749(1984);Yeatts v. Minton, 211 Va. 402, 177 S.E.2d 646(1970);Barnette v. Commonwealth, 23 Va.App. 581, 478 S.E.2d 707(1996);Shears v. Commonwealth, 23 Va.App. 394, 477 S.E.2d 309(1996).None of these cases address the specific issue before us.For example, in Hill, Shears, and Barnette, the issue was whether, when the officers arrested the defendants erroneously but in good faith, the evidence of contraband found during the search that followed the arrest should have been suppressed.DeChene and Yeatts merely held that where the erroneous arrests were made in good faith, the officers could not be held liable for civil damages.Here, the issue is whether, or to what extent, an arrestee may resist an arrest claimed to have been made in "good faith" but made without a lawful warrant or probable cause to arrest for a misdemeanor not committed in the presence of the arresting officers.

In Virginia, authorization to make a warrantless arrest is limited to those situations provided for in the Code of Virginia.SeeCode§§ 19.2-77, 19.2-81, 19.2-100.The lawfulness of an attempted arrest is determined by those code sections.SeeFoote v. Commonwealth, 11 Va.App. 61, 65, 396 S.E.2d 851, 854(1990)(citingCode§ 19.2-81).Appellant's arrest was not made pursuant to any of the cited code sections.

Cases that protect police officers from civil liability or that apply the good faith exception to the exclusionary rule to evidence acquired pursuant to an erroneous arrest are not controlling.

It has long been held in Virginia that where an officer attempts an unlawful arrest, the officer is an aggressor which gives the arrestee the right to use self-defense to resist so long as the force used is reasonable.Seeid. at 69, 396 S.E.2d at 856; see also Annotation, Modern status of rules as to right to forcefully resist illegal arrest, 44 A.L.R.3d 1078(1972)."[T]he amount of force used [always] must be reasonable in relation to the harm threatened."Diffendal v. Commonwealth, 8 Va.App. 417, 421, 382 S.E.2d 24, 26(1989).

When the issue on appeal is whether there...