Ford v. Com.

• Decision Date: 01 September 1998
• Docket Number: Record No. 0119-97-2.
• Citation: 28 Va. App. 249,503 S.E.2d 803
• Court: Virginia Court of Appeals
• Parties: Angelo Lewis FORD v. COMMONWEALTH of Virginia.

503 S.E.2d 803

28 Va. App. 249

Angelo Lewis FORD v. COMMONWEALTH of Virginia.

Record No. 0119-97-2.

Court of Appeals of Virginia.

September 1, 1998.

D. Gregory Carr (Bowen, Bryant, Champlin & Carr, on brief), Richmond, for appellant.

Richard B. Smith, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Present: BENTON, ELDER and BUMGARDNER, JJ.

BUMGARDNER, Judge.

Angelo Ford was convicted of grand larceny during a bench trial. The appellant contends the court erred by denying his motion to suppress because: (1) the stop was invalid; (2) the appellant was subjected to custodial interrogation without being given Miranda warnings; and (3) the show-up was unduly suggestive. In addition, the appellant alleges the trial court erred in denying his motion challenging the sufficiency of the evidence. For the following reasons, we affirm the trial court's decision.

The evidence at the appellant's trial proved that, on November 27, 1995, Detective J.A. Capocelli observed the appellant walking with two women in the parking lot of the Cloverleaf shopping mall. The appellant was carrying a white plastic bag. As they approached a wooded area on the east side of the lot, the appellant and the two women looked over their shoulders several times. The appellant then separated from the two women and entered a wooded area adjacent to the parking lot. Detective Capocelli lost sight of the appellant for the minute or two he was in the wooded area. The appellant then exited the woods without the white plastic bag and returned to the two women. The appellant and one of the women started walking toward the woods together but then turned back and joined the second woman. All three then walked into the mall.

After the appellant and the two women entered the mall, Detective Capocelli went into the wooded area and "after about ten seconds of searching, ... found a white plastic bag hidden underneath two old mattresses that were disposed in the woods." The bag was similar in appearance to the one he had earlier seen the appellant carry into the wooded area. No other white bag was found. Inside the bag were five pieces of women's clothing that were "rolled up." The clothing had store tags indicating they came from a store named "Lane Bryant." There was no sales slip or receipt inside the bag. Detective Capocelli replaced the clothing and the bag in the wooded area and returned to his car.

About thirty to forty-five minutes after Detective Capocelli had seen the appellant and the two women enter the mall, the detective observed them exit the mall and walk east on Midlothian Turnpike. Detective Capocelli and three uniformed police officers, who had been informed of the detective's observations, stopped the appellant and the two women by approaching them in vehicles with blue police lights activated. Detective Capocelli exited his vehicle and approached the appellant while two officers exited their cars and approached the two women. Detective Raymond Michael Louth attempted to ascertain whether the appellant had been in Lane Bryant that day.

Detective Capocelli asked the appellant for his name and any identification. The appellant provided neither. While most questions were geared toward identification, Detective Capocelli did ask the appellant if he could explain his actions in the parking lot. Early during the stop, the appellant denied being on the mall property, denied carrying a bag, and denied knowing the two females with him. Detective Capocelli testified at trial that the appellant was not free to leave and that he asked the appellant many questions more than once. The appellant was read his Miranda rights about thirty minutes after he was stopped. The appellant subsequently asked for an attorney.

Detective Louth, who had observed the appellant and the two women in the mall, retrieved the white bag from the woods after Detective Capocelli had told him where it was located. Detective Louth then took the clothing in the bag to Lane Bryant. He drove a store clerk to where Detective Capocelli was talking to the appellant, but the clerk did not recognize him. Detective Louth then transported another clerk, Nicole Dance El, to the scene of the appellant's stop. Although Ms. El had not previously given a description of the appellant to Detective Louth, she told him that the people being detained had been in the store that day; she recognized a hat worn by one of the women. Ms. El recalled the appellant and the two women because they were one of only two customers she had assisted that day. She had noted nothing unusual about the appellant's behavior in the store.

Ms. El testified that when items are purchased from Lane Bryant, the store's practice is to have the cashier tear off the bottom half of the store tag. She also stated that the value of the clothing in the bag was between $340-$350.

I. Motion to Suppress

When a motion to suppress is reviewed on appeal, the burden is on the appellant to show that the ruling, when the evidence is considered in the light most favorable to the Commonwealth, constituted reversible error. See Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731,

cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980). We review the trial court's findings of historical fact only for "clear error," but we review de novo the trial court's application of defined legal standards, such as "reasonable suspicion" and "custodial interrogation," to the particular facts of a case. See Shears v. Commonwealth, 23 Va.App. 394, 398, 477 S.E.2d 309, 311 (1996); see also Ornelas v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

A police officer may stop and detain a person "for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); DePriest v. Commonwealth, 4 Va.App. 577, 585, 359 S.E.2d 540, 544-45 (1987), cert. denied, 488 U.S. 985, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988). Investigative stops must be based on articulable facts supporting a reasonable suspicion that, based on the totality of circumstances, the suspect detained has committed or is about to commit a crime. See United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)

; Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982) (a stop requires a less stringent test than probable cause); DePriest, 4 Va.App. at 584,

359 S.E.2d at 543. A trained and experienced police officer may be able to detect criminal behavior that might appear innocent to an untrained observer. See Cortez, 449 U.S. at 418,

101 S.Ct. 690; Taylor v. Commonwealth, 6 Va.App. 384, 388, 369 S.E.2d 423, 425 (1988).

We hold that Detective Capocelli had a reasonable, articulable suspicion that the appellant had committed a crime at the time he was stopped. The detective observed the appellant walking from the mall toward a wooded area while carrying a white plastic bag and looking over his shoulder several times. He then observed the appellant walk into a wooded area and emerge a few minutes later without the bag. The detective retrieved the bag moments later and discovered it contained what appeared to be stolen items of women's clothing. Based on these facts, Detective Capocelli could reasonably surmise that the appellant had engaged in criminal activity. See Cortez, 449 U.S. at 421-22,

101 S.Ct. 690. In addition, the record established that the detective communicated this information to the other officers who assisted in the stop. Detaining suspects expeditiously to avoid their possible flight or remaining at large promotes the government's interest in solving crimes and bringing offenders to justice, United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), and in this case, Detective Capocelli and the other officers acted with dispatch. As such, we cannot say that the trial court erred when it concluded that the investigative stop was valid.

Next we consider whether the appellant was in custody when questioned. An investigative stop requires Miranda safeguards when, considering all factors, a suspect is "in custody." See Wass v. Commonwealth, 5 Va.App. 27, 32, 359 S.E.2d 836, 839 (1987)

; Commonwealth v. Milner, 13 Va. App. 556, 558, 413 S.E.2d 352, 353 (1992) (citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). Whether a suspect is "in custody" under Miranda is determined by the circumstances of each case, and "the ultimate inquiry is simply whether there is a `formal arrest or restraint on freedom of movement' of the degree associated with formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (citation omitted). A temporary detention for purposes of investigation, without more, does not necessarily render a person "in custody." See United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); DePriest, 4 Va.App. at 587,

359 S.E.2d at 545; Dixon v. Commonwealth, 11 Va.App. 554, 556, 399 S.E.2d 831, 832-33 (1991).

In this case, the evidence supports the trial court's finding that the appellant was not in custody at the time his statements were made. The appellant was detained on a public street in the middle of the afternoon. Although he was not free to leave, he was not restrained, handcuffed, or searched. While four officers were present with police vehicles, there were three suspects, and one officer was ascertaining whether the appellant had been in the store. The appellant was not surrounded, and only Detective Capocelli asked him questions. Most of the questions were related to identification, and police may, within the scope of an investigative stop, ask a suspect to explain suspicious circumstances. See Brignoni-Ponce, 422 U.S. at 881-82,

95 S.Ct. 2574. Detective Capocelli testified that he never told the...