Howard v. Com.

• Decision Date: 27 April 1970
• Citation: 173 S.E.2d 829,210 Va. 674
• Court: Virginia Supreme Court
• Parties: John Henry HOWARD, Jr. v. COMMONWEALTH of Virginia.

Page 829

173 S.E.2d 829

210 Va. 674

John Henry HOWARD, Jr. v.COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

April 27, 1970.

R. R. Ryder, Richmond, for plaintiff in error.

C. Tabor Cronk, Special Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.

I'ANSON, Justice.

John Henry Howard, Jr., defendant, was tried by a jury on an indictment charging robbery, found guilty, and his punishment was fixed at confinement in the State penitentiary for a period of five years.He was sentenced accordingly, and we granted defendant a writ of error.

Defendant contends that the court erred (1) in denying his motion to suppress certain evidence, and (2) in denying his requested instruction No. B.

The evidence shows that at approximately 1:50 a.m. on the morning of January 27, 1968, a 'dark' complexioned man, wearing dark pants and sweater and a red ski mask, entered the Holiday Inn located on Robin Hood Road in the City of Richmond and, pointing a pistol at the night auditor on duty, directed him to fill up an ice bucket with money.A total of $844.84, mostly in bills with a minor portion in coin, was taken.The man then left, and as the night auditor was reporting the robbery to the police he saw a white Pontiac pull rapidly away from the motel in the direction of Sherwood Avenue.

Officer W. G. Wilson received a call from the police dispatcher reporting the robbery, and as he was proceeding toward Sherwood Avenue he saw an old model Pontiac, dirty white or light green in color, whose driver had on a red stocking cap.He followed the car, and as he neared the Pontiac the driver stopped, jumped out of the car, and disappeared in a residential area.Wilson noticed that the man was a Negro and he was wearing a dark jacket and light colored pants.He called for assistance and a K--9 unit responded.

When Officer Carroll, of the K--9 unit, reached the area, his dog picked up a scent at the point where the driver abandoned the car and tracked it for three or four blocks to the 2500 block of Northumberland Avenue, where the scent was lost.Carroll went over the area on foot for 45 minutes and then began a patrol in his car.At about 3:00 a.m. he spotted a taxicab in the area with its roof light out, indicating it had a fare.He stopped the cab and asked the driver where he had picked up his passenger.When the 2500 block of Northumberland was indicated, Carroll asked the defendant to step out of the cab and identify himself.Carroll saw that the passenger was a Negro and was dressed only in a shirt and trousers although the temperature was 26 degrees.Defendant was asked his name, address and occupation.Carroll then asked his fellow officer sitting in the squad car to radio for the detectives assigned to the case.He neither asked the defendant any more questions nor told him he had to remain there until the detectives arrived.

Fifteen or twenty minutes later Detective-Sergeant N. W. Johnson arrived.He asked defendant to get into his car, since the defendant wore no jacket and the temperature was below freezing, and defendant complied.Johnson asked him how he came to be in that area and was given two contradictory answers.The detective noticed that defendant's pockets were bulging and asked him if he could see what was in them.After some hesitation, defendant began pulling money out and handed it to Johnson.The total amount was $506.00 in bills.During this action Johnson noticed an object about the size of a pistol in defendant's right hip pocket, and he reached over and pulled out a .38 caliber revolver.Defendant was then placed under arrest and advised of his constitutional rights, in keeping with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974(1966).

Defendant first contends that when Officer Carroll stopped the taxicab the action was an effective arrest; and that because he had no probable cause to believe defendant had committed the robbery, the arrest was merely an 'arrest for investigation' and therefore illegal.He thus argues that the gun and the money taken from him in a search subsequent to this illegal arrest should have been suppressed as evidence.We do not agree.

In support of his contention that the arrest occurred when the officer stopped the taxicab, defendant relies on Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134(1959);Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142(1964);andBowling v. United States, 122 U.S.App.D.C. 25, 350 F.2d 1002(1965).

In the Henry case, government agents obtained information that one Pierotti was involved in a theft from an interstate shipment of whiskey.The next day the officers saw Pierotti in a car being driven by Henry.The car stopped in an alley in a residential section.Henry picked up some cartons which he put in the car and drove off.When the car returned and was loaded with more cartons, the agents followed if for a short distance and then stopped it.A search was made and Henry and Pierotti, along with the cartons, were taken to the agents' office.Two hours later it was learned that the cartons contained stolen radios, and the two men were then placed under formal arrest.The court held that the arrest took place when the agents stopped the automobile; that the agents did not have reasonable cause to believe Henry had committed an offense, and hence the arrest and search without a warrant were unlawful even though it was disclosed that the radios were stolen.

It is important to note that in the Henry case the stop, arrest and search were simultaneous events, all occurring in the absence of probable cause.Thus the facts in the present case differ from those in Henry, and that case is not controlling here.For the same reasons Beck, supra, andBowling, supra, are not applicable here.

The crucial question here is whether defendant was arrested when the cab was stopped and the defendant was told to get out and identify himself.Ordinarily, an arrest is made by the actual restraint of the person of the defendant or by his submission to the custody of an officer.But since there is a recognized distinction between detaining a person for purposes of identification and that of arresting him, we must appraise the evidence in the light of the...