Sullivan v. Com.
| Decision Date | 05 September 1969 |
| Parties | James Junior SULLIVAN, alias etc. v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
Joseph B. Bullock, Alexandria, for plaintiff in error.
Walter H. Ryland, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on the brief), for defendant in error.
Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON, and HARRISON, JJ.
The indictment in this case charged James Junior Sullivan with burglary of the Alexandria Housing Authority office on March 26, 1966. The trial court, sitting without a jury, convicted Sullivan of burglary and imposed a ten-year sentence. On this appeal Sullivan contends that (1) a stolen credit card was improperly admitted in evidence because it was seized during an illegal search of his person, and (2) the evidence was insufficient to sustain a conviction of burglary.
During the night of March 25--26, 1966, someone forcibly entered the Alexandria Housing Authority office, ransacked the office and attempted to open the safe. On the next business day, Monday, March 28, an Esso credit card was found missing.
At about 2:00 a.m. on June 13, 1966, an Alexandria police officer, who had just received a report of another burglary, drove to a place where he expected the burglar to pass after leaving the scene of the crime. He saw Sullivan there and asked him to identify himself. When Sullivan refused to identify himself and cursed the officer, the officer told Sullivan he was under arrest for disorderly conduct.
Sullivan walked away, and when the officer attempted to detain him, Sullivan hit the officer with his fist. A struggle ensued, but when Sullivan thought the officer was drawing his gun, he stopped resisting and was handcuffed. After Sullivan was taken to police headquarters, a warrant was issued charging him with disorderly conduct, assault and battery, and resisting, obstructing or impeding a police officer in the performance of his duties. 1
When Sullivan was searched at police headquarters, the Esso credit card stolen from the Housing Authority's office was found in his wallet. The credit card was seized and introduced in evidence at Sullivan's trial for the burglary of the Housing Authority office.
Sullivan did not testify at his trial, and he called only a fingerprint expert to testify on his behalf. The expert testified that latent fingerprints taken from the Housing Authority's office did not match Sullivan's fingerprints.
Sullivan concedes that the search of his person on June 13 would have been legal, though made without a search warrant, if he had been legally arrested. He contends, however, that his arrest was illegal because the Alexandria disorderly conduct ordinance is 'unconstitutionally vague and overbroad'.
But defense counsel conceded at oral argument that under the circumstances the police officer had the right to stop Sullivan and ask him for identification. So when Sullivan refused to identify himself, he committed the misdemeanor of obstructing an officer in the discharge of his duties. Alexandria, Va., Code § 23--38 (1963), Supra n. 1. Since that misdemeanor was committed in the officer's presence, the officer had the right to arrest Sullivan. Jordan v. Commonwealth, 207 Va. 591, 151 S.E.2d 390 (1966). And it is immaterial that the officer advised Sullivan he was being arrested for disorderly conduct, instead of for obstructing an officer in the discharge of his duties. Id.
We therefore reject counsel's contention that Sullivan's arrest and the search of his person were illegal, without reaching the question whether the Alexandria disorderly conduct ordinance is valid.
Sullivan's attack on the sufficiency of the evidence raises the question whether his possession of the Esso credit card on June 13 sufficiently connects him with the burglary on March 25--26.
Under Virginia law, upon proof of a breaking and entering and a theft of goods, and if the evidence warrants an inference that the breaking and entering and...
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