Commonwealth v. Suluki, Record No. 2068-17-2

CourtCourt of Appeals of Virginia
Docket NumberRecord No. 2068-17-2
Decision Date05 June 2018


Record No. 2068-17-2


JUNE 5, 2018


Present: Judges Beales, Decker and Senior Judge Haley
Argued by teleconference


Clarence N. Jenkins, Jr., Judge

Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

Lauren Whitley, Deputy Public Defender, for appellee.

Amir Fareed Suluki (the defendant) was indicted for robbery, use of a firearm in the commission of robbery, and possession of a firearm by a violent felon, in violation of Code §§ 18.2-58, -53.1, and -308.2. The defendant filed a pretrial motion to suppress evidence, which he alleged was obtained during an unlawful search. After a hearing, the circuit court granted the motion and suppressed the evidence. Pursuant to Code §§ 19.2-398 and -400, the Commonwealth appeals that pretrial ruling. The Commonwealth contends that the discovery of the evidence was reasonable under the Fourth Amendment to the United States Constitution because, among other things, the defendant was lawfully handcuffed during an investigative detention and his resistance to the efforts to handcuff him provided probable cause to arrest for obstruction of justice, thereby legitimizing the search of his person and the bundle he was carrying. The record, viewed under the appropriate standard, supports the conclusion that the circuit court erred as a matter of law by

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rejecting this analysis. Consequently, we reverse the circuit court's ruling suppressing the evidence and remand the case for further proceedings consistent with this opinion.


At 4:46 p.m. on June 28, 2017, Officer Cole Kelly of the City of Richmond Police Department was dispatched in response to a "hold-up" alarm notification from a convenience store. He arrived at the store within sixty to ninety seconds.2 Kelly received information indicating that a tall male of a particular race, who was armed with a gun and wore a black mask, ran out of the store. The store's cashier told Kelly that the robber "took all [the] money" and was wearing "all black." The cashier also said that he knew who the perpetrator was. Another man at the store reported to Officer Kelly that he also knew the robber and had just seen him "on T Street." Less than a minute after Officer Kelly arrived at the store, he was back in his marked police car traveling toward T Street.

As Kelly arrived in the area two to three blocks away, he saw someone who matched the armed robber's description entering an apartment building. Kelly parked and got out of his car without activating any of its emergency equipment. As the man, the defendant, looked back toward Kelly, the officer motioned to him to come outside the building. The defendant complied and spoke with Kelly, the only officer present at the time, just outside the doors of the apartment

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building.3 During the interaction, the defendant held a "bundle" in his left hand that consisted of a black sweatshirt or jacket wrapped around a white plastic bag.4 An older man with a cane stood nearby during the encounter.

Officer Kelly asked the defendant if he was "just out on T Street." The defendant said no and that he was "[t]here to see [his] father." Officer Kelly replied that he had seen the defendant "just coming away from T Street" and someone "said there was a guy wearing all black," adding that the defendant was "not in trouble." The defendant, pointing toward T Street, then said, "Oh, I came from right there, talking to the old schools on the corner." Officer Kelly asked if the defendant had "a mask or anything like that" in his bundle. The defendant politely replied, "No, sir." He looked the officer in the eyes as he did so and expressed no surprise regarding the question.

Kelly then asked the defendant if he could "check" the bundle. The defendant replied much more emphatically, "Why? I don't have anything." Officer Kelly responded that it was because the defendant had a black hoodie, black shirt, and black pants. Kelly then specifically asked what the defendant had "in the bag." The defendant said, "What," looked down at the bundle, and continued, "This [is] my, um, my food, I'm trying to keep it cause it's hot." Kelly asked, "Ok, what is it?" The defendant refused to tell him, stating twice that "[i]t doesn't matter what it is." Kelly asked to "see" the contents of the bag, and the defendant again refused.

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At that point, Officer Kelly saw an additional police car pulling up to the curb in front of the apartment building. Kelly said to the defendant, "Just come here," and told him to "put [his] hands behind [his] back for a second." Kelly simultaneously moved behind the defendant, who turned and positioned his left hand, which still held the bundle, away from the officer. At the same time, Kelly's back-up, Officers Morley and Ellerbe, walked up to the defendant. Officer Kelly pulled the defendant's right arm behind his back, but the defendant continued to hold the bundle in his left hand in front of his body.5 Officer Morley told the defendant that she would "tase [him] if [he did] anything stupid."6 Officer Kelly, speaking simultaneously with Officer Morley, again told the defendant to put his "hand" behind his back "right now, ok?" Officer Morley said, "Drop it, drop it, drop what's in your hand [or] I'm gonna tase you right now, man." The defendant told the officers not to tase him. Officer Kelly responded much more emphatically, "Put your hand behind your back and it won't happen, all right?" The defendant again said, "Don't tase me," and kept his left hand, in which he still held the bundle, away from the officer.7 An elderly bystander remained nearby at the time. The defendant then said, "All right, look, I'm gonna drop it, . . . don't tase me." When he did not do so immediately, Officer Morley said in a louder and more emphatic manner, "drop it, drop it," and she then fired the taser.

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The defendant dropped the bundle, and Officer Kelly struggled to get both of the defendant's hands behind his back to handcuff him. As he did so, Officer Morley moved the bundle away with her foot, and Officer Ellerbe picked it up and moved it to a nearby ledge.8 Police subsequently searched the defendant's person and the bundle and found evidence, including a mask and firearm, that the defendant sought to suppress.9

At the suppression hearing, Officer Kelly testified that he "absolutely" wanted to "put [the defendant] into investigative detention to . . . investigate further" regarding the robbery. He said that he did not do so immediately, while on the scene by himself, for safety reasons. He further explained that the defendant was bigger and taller than he and his back-up officers were and he knew the robbery suspect had been reported to have a gun. Kelly also testified that the defendant's resistance to putting his hands behind his back impeded him from placing the defendant safely under detention to investigate the robbery.10

After hearing evidence and argument on the motion to suppress, the circuit court ruled that based on the defendant's appearance, the officer had reasonable, articulable suspicion to believe that he was the person who robbed the store. The court found that the two then engaged in "normal conversation" during which the defendant was polite. The court further held that the encounter quickly "went from [Kelly's] asking [the defendant] a basic question to basically placing him into custody." Additionally, it found that the officers escalated the situation when

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Kelly placed the defendant's arm behind his back because one of the officers told the defendant, "[I]f you don't comply[,] I will tase you." The court found that the defendant stated, "I'm putting the bag down," and was immediately tased.

The court ruled that the officers' actions amounted to an arrest for which they lacked probable cause. The judge elaborated, "I don't think what we saw rises to the level of obstructing of justice." He stated, "[B]y the time it got to that point, the [original] officer had multiple officers around him in order to conduct a pat down," implying that handcuffing the defendant was not justified in light of the presence of additional officers. Consequently, the circuit court granted the motion to suppress the evidence.11


The Commonwealth contends that the circuit court erred in granting the defendant's motion to suppress the evidence found during the robbery investigation. It suggests in relevant part that the officers lawfully sought to handcuff the defendant during an investigatory stop and that the defendant's resistance, viewed under the proper standard, provided probable cause to arrest him for obstruction of justice. Accordingly, it argues that the existence of probable cause to arrest, viewed objectively, permitted a search of the defendant and his bundle.

On appeal of an order granting a defendant's motion to suppress, the Commonwealth has the burden to show that the ruling constitutes reversible error. See Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). The evidence is viewed in the light most favorable to the defendant, the party who prevailed below. See Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992). Further, the appellate court is bound by the circuit court's findings of fact unless "plainly wrong or without evidence to support them."

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Gregory v. Commonwealth, 64 Va. App. 87, 93, 764 S.E.2d 732, 735 (2014). However, "'[u]ltimate 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." 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)). In making such...

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