Com. v. Hill

• Decision Date: 01 November 2002
• Docket Number: Record No. 012526.
• Parties: COMMONWEALTH of Virginia v. John Howard HILL, Jr.
• Court: Virginia Supreme Court

570 S.E.2d 805

264 Va. 541

COMMONWEALTH of Virginia v. John Howard HILL, Jr.

Record No. 012526.

Supreme Court of Virginia.

November 1, 2002.

Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellant.

Denise Winborne, Assistant Public Defender, for appellee.

Present: All the Justices.

Opinion by Justice BARBARA MILANO KEENAN.

In this appeal, we consider whether the Court of Appeals erred in reversing a defendant's conviction and dismissing an indictment on the ground that the common law right to use reasonable force to resist an illegal arrest also confers a right to use reasonable force to resist an illegal detention.

John H. Hill, Jr., was indicted for assault and battery of a law enforcement officer, in violation of Code § 18.2-57(C). Hill was accused of striking Officer K.I. Fromme of the City of Suffolk Police Department while Fromme was attempting to conduct a "pat down" search of Hill to determine whether he was carrying a weapon. Hill was convicted of the offense in the Circuit Court of the City of Suffolk. The court sentenced him to a term of three years' imprisonment and suspended two and one-half years of that sentence.

Hill appealed from his conviction to the Court of Appeals, which reversed the trial court's judgment and dismissed the indictment. Hill v. Commonwealth, 37 Va.App. 1, 9, 553 S.E.2d 529, 533 (2001). The Court of Appeals concluded, among other things, that Hill's physical resistance "to an illegal detention and search was reasonable and proportionate to the conduct of the police." Id. The Commonwealth appeals the Court of Appeals' judgment.

Under established principles of appellate review, we will state the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court, and will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence. Armstrong v. Commonwealth, 263 Va. 573, 576, 562 S.E.2d 139, 140 (2002); Stephens v. Commonwealth, 263 Va. 58, 59-60, 557 S.E.2d 227, 228 (2002). The evidence showed that on July 9, 1999, at 1:21 a.m., Officer Fromme received a dispatch report, which was based on an anonymous telephone call, stating that two black males were "possibly dealing firearms" in front of a green house in the 400 block of Briggs Street. Fromme was familiar with that part of Briggs Street as "an area where drugs are bought and sold." A few minutes later, he arrived at the scene and was met shortly thereafter by two other police officers.

At that time, Officer Fromme saw Hill sitting in the driver's seat of a car, which had the driver's side door opened and was parked in front of a green house in the 400 block of Briggs Street. The officers did not observe any suspicious activity as they approached the car. Hill and his companion did not attempt to run away and Hill complied with the officers' request that he get out of the car.

Officer Fromme explained to the two men that he had received a complaint about two suspects "possibly dealing weapons," and that, for reasons concerning safety, he wanted to "pat them down" to determine whether they carried any firearms. Fromme "patted down" Hill's left side without encountering any resistance from Hill. However, as Fromme attempted to "pat down" Hill's right side, Fromme noticed a bulge in the right pocket of Hill's pants. Hill pushed Fromme's hand away in an attempt to prevent him from "patting down" that pocket.

Officer Fromme again told Hill that he only wanted to determine whether Hill carried any weapons. As Fromme reached toward the right pocket of Hill's pants, Hill placed his hand in that pocket. When Fromme grabbed Hill's hand and removed it from the pocket, Hill turned and tried to run away.

As Hill turned away from Officer Fromme, he struck the officer in the mouth with his open hand, splitting Fromme's lip. Hill was able to run a short distance before all three officers struggled with him in an attempt to force him to the ground and restrain him. During the struggle, Hill struck Fromme "a couple of times" before the officers were able to place Hill in handcuffs.

Officer Fromme searched the right pocket of Hill's pants and discovered "a corner of a plastic baggie" concealed inside of a black pen cap. The plastic baggie contained about 0.17 grams of cocaine. In Hill's right hand, Officer Fromme discovered a film canister containing five "rocks" of crack cocaine, which weighed a total of 5.01 grams. The officers did not find any weapons on Hill's person or in the vehicle he had occupied.

Before trial, Hill filed a motion to suppress the seized evidence on the ground that his detention was illegal because Officer From me did not have reasonable suspicion that Hill was armed and dangerous or was involved in any criminal activity. At a hearing that was later made part of the trial record, Hill testified that he consented to a "pat down" search for weapons, and that he did not resist Fromme's actions until Fromme tried to reach into Hill's pocket. Hill also testified that he "accidentally hit" Fromme while attempting to run away.

The trial court denied Hill's motion. The court concluded that given the nature of the dispatch report, Officer Fromme "made a reasonable pat down or attempt at a pat down for officer safety. And it was the [resistance to] that pat down that led to ... the arrest."

In a bench trial, the court found Hill guilty of the felonious assault charge. After this conviction, but before Hill's sentencing, the United States Supreme Court published Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).

In J.L., the Court considered the issue "whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer's stop and frisk of that person." Id. at 268, 120 S.Ct. 1375. The Court concluded that "reasonable suspicion... requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." Id. at 272, 120 S.Ct. 1375. The Court held that "an anonymous tip lacking indicia of reliability... does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm." Id. at 274, 120 S.Ct. 1375.

Before his sentencing hearing, Hill filed a motion to set aside his conviction, relying on the Supreme Court's holding in J.L. The trial court concluded that under the decision in J.L., Hill was unlawfully detained. However, the court held that Hill's actions were unlawful because his resistance was disproportionate to Officer Fromme's attempt to remove Hill's hand from his pocket. On this basis, the court denied the motion to set aside the conviction.

In his appeal to the Court of Appeals, Hill argued that his conviction should be reversed "because he used reasonable force to repel an illegal arrest." Hill, 37 Va.App. at 2-3, 553 S.E.2d at 530. The Court of Appeals concluded that Hill was the subject of an illegal detention, not an illegal arrest. Id. at 5, 553 S.E.2d at 531. However, the Court held that the common law doctrine allowing an individual to use reasonable force to resist an illegal arrest applies also to a detainee's efforts to resist an illegal detention. Id. at 5-6, 553 S.E.2d at 531-32.

The Court further concluded that Hill did not use excessive force to resist the detention because he struck Officer Fromme with an "open hand," he "did not aggressively pursue or attack" Fromme, and he only struck Fromme in attempting "to get away from the officer's assault." Id. at 7, 553 S.E .2d at 532. Based on this holding, the Court reversed Hill's conviction and dismissed the indictment. Id. at 9, 553 S.E.2d at 533.

On appeal to this Court, the Commonwealth argues that the Court of Appeals erred in extending the common law right to use reasonable force to resist an unlawful arrest to an incident involving only an unlawful detention. The Commonwealth asserts that there is a significant distinction between a detention and an arrest because a detention involves only a temporary deprivation of the detainee's liberty, while an arrest is the initial stage of a criminal prosecution that restricts the arrested person's freedom for an extended period of time. The Commonwealth contends that a rule permitting a detainee to resist an illegal detention would escalate the danger of violence to law enforcement officers engaged in the reasonable performance of their duties. Thus, the Commonwealth maintains that the determination whether a detention is legal "should be left solely to the courts, not the fist of the suspect."

In response, Hill argues that the "pat down" search conducted by Officer Fromme was unlawful because he did not have a basis for concluding that Hill may have been armed and dangerous or engaged in criminal activity. Hill contends that Fromme's actions gave Hill the right to use reasonable force to resist...