Turay v. Commonwealth

• Docket Number: 0868-21-3
• Decision Date: 21 March 2023
• Parties: ARUN RASHID TURAY v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Court of Appeals

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ARUN RASHID TURAY v. COMMONWEALTH OF VIRGINIA

No. 0868-21-3

Court of Appeals of Virginia

March 21, 2023

UPON A REHEARING

FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO Paul A. Dryer Judge

Jessica N. Sherman-Stoltz (Sherman-Stoltz Law Group, PLLC, on briefs), for appellant.

Liam A. Curry, Assistant Attorney General (Jason S. Miyares Attorney General, on briefs), for appellee.

Present: Judges Chaney, Callins and Senior Judge Petty Argued by videoconference

MEMORANDUM OPINION ^[*]

VERNIDA R. CHANEY, JUDGE

Arun Rashid Turay (Turay) entered conditional guilty pleas in the Circuit Court for the City of Waynesboro (circuit court) and appealed the circuit court's denial of his motion to suppress evidence.^[1] Turay contends on appeal that the circuit court erred in finding that the police had reasonable, articulable suspicion to detain him and, therefore, erred in denying his motion to suppress the fruits of his unconstitutional seizure.^[2] A divided panel of this Court issued a decision on October 18, 2022, affirming the circuit court's judgment denying Turay's suppression motion. Turay timely petitioned the panel to reconsider its decision. The panel granted Turay's petition for rehearing, withdrew the panel's original opinion, and vacated the mandate by order dated November 22, 2022. After rehearing, this Court agrees with Turay and reverses the circuit court's judgment denying his motion to suppress.

BACKGROUND

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party" in the circuit court. McGowan v. Commonwealth, 72 Va.App. 513, 516 (2020) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). This Court "regard[s] as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence." Id. (citing Gerald, 295 Va. at 473).

On February 17, 2020, late in the evening, Deputy Sheriff Stroop of Augusta County responded to a radio call regarding a robbery in Waynesboro. When Deputy Stroop drove by the crime scene in Waynesboro, an officer on the roadway told him "there [were] people inside the house that weren't supposed to be there, a firearm was taken, and then they fled on foot." Although unfamiliar with the area, Deputy Stroop decided to drive around to look for the suspects.

While Deputy Stroop was driving, he heard Sergeant Lemons announce on the radio a "be on the lookout" (BOLO) for "three Black males, all armed" and "wearing black sweatshirts." Around 11:30 p.m., about thirty minutes after the robbery, Deputy Stroop stopped and detained two Black men who "were walking down the road." The two men seized by the deputy were Turay and his co-defendant, Justice Ahmad Carr (Carr). The location of the seizure was approximately six to ten blocks from the scene of the robbery, although Deputy Stroop testified that he did not recall how far he was from the crime scene when he stopped Turay and Carr. Deputy Stroop testified that at the time of the seizure, there were not many people out on the street where Turay and Carr were walking. Deputy Stroop also testified that Turay and Carr were not doing anything but walking down the road in a residential neighborhood.

Deputy Stroop testified that he seized Turay and Carr after he concluded "[t]hey matched the description of what was given out" over the radio. According to Sergeant Lemons's police report and testimony, neither Turay's nor Carr's clothing matched the suspects' clothing description that Sergeant Lemons gave in the BOLO.^[3] Sergeant Lemons testified that Turay was wearing a black hooded jacket with a red stripe down the arm. Officer Mawyer, a patrol officer who responded to the BOLO, also testified that Turay "was wearing a black jacket with a distinct red stripe . . . down the sleeves" and Carr was wearing gray pants and a white hoodie. The police bodycam video shows Carr wearing light gray pants, a long-sleeved white top with a multi-colored print and lettering on the front, a white or light-colored cap with a dark brim, turned backward, and a backpack with a floral design. The police bodycam video shows Turay wearing black pants and a long-sleeved black top with a wide red stripe down each sleeve and a wider blue stripe on each side of the garment.

Deputy Stroop held Turay and Carr at gunpoint and directed them to place their hands on the hood of his police car. Moments later, after Deputy Stroop notified Waynesboro police, Officers Cacciapaglia and Mawyer from Waynesboro arrived separately at Deputy Stroop's location to determine whether he had detained the right people.

Upon Officer Mawyer's arrival at the detention site, Sergeant Lemons provided a more detailed description of the suspects' clothing, including information obtained after the BOLO. After hearing this additional information, the Waynesboro patrol officers handcuffed and searched Turay and Carr. Neither Turay nor Carr possessed any weapons. But Carr possessed credit cards belonging to one of the victims, and Turay had a bookbag that contained a victim's keys in addition to bloody clothes and shoes that looked the same as items seen on the video of the robbery. A DNA comparison showed that the blood on the clothes matched one of the victims.

Turay filed a suppression motion in the circuit court alleging that his detention by Deputy Stroop was an unconstitutional seizure because it was not supported by reasonable, articulable suspicion that Turay was involved in the robbery. Carr also filed a suppression motion alleging that he was unconstitutionally stopped and detained without reasonable, articulable suspicion. After a joint hearing on both defendants' suppression motions, the circuit court denied both motions for the reasons stated in its letter opinion dated March 24, 2021 (March 2021 letter opinion).

In the March 2021 letter opinion, the circuit court made the following factual findings:

• The first BOLO description radioed by Sergeant Lemons described the suspects as "three Black males wearing black."

• Although Sergeant Lemons radioed more detailed descriptions of the suspects' clothing after the initial BOLO, "Deputy Stroop would have only heard the first description prior to detaining the Defendants."

• When Sergeant Lemons arrived at the location where Turay and Carr were detained, "he noticed that their clothing did not match precisely the descriptions that he previously gave over his police radio."

• "Carr's clothing was not black," but "Turay's clothing was black, matching the description heard by Deputy Stroop."

• "Neither [Carr nor Turay] was wearing black sweatpants with a red stripe."

• "[T]he Defendants at the time [Deputy] Stroop encountered them, matched the description in sex, race, and some of the clothing."

• "[T]here were no other people out in the neighborhood during this time" when Deputy Stroop observed Turay and Carr walking down the street late in the evening.

• "[T]he Defendants were the only two people Deputy Stroop encountered walking in the residential neighborhood, at 11:30 p.m., a relative short distance from the crime scene within thirty minutes of the crime."

The circuit court also found that, taken together, the factors of proximity, time, physical description, gender, and racial description "gave Deputy Stroop, an objective, reasonable suspicion that the Defendants may have been involved in the crime that occurred a few blocks away and a few minutes before his encounter with them." Thus, the circuit court found that Deputy Stroop had reasonable, articulable suspicion to stop and detain Turay and Carr. Based on these findings, the circuit court held that "the stop and detention of the Defendants by Deputy Stroop was not in violation of the Fourth Amendment." Accordingly, the circuit court denied both defendants' suppression motions. This appeal followed.

ANALYSIS

A. Standard of Review

On appeal of the denial of a motion to suppress evidence, this Court "determine[s] whether the accused has met his burden to show that the trial court's ruling, when the evidence is viewed in the light most favorable to the Commonwealth, was reversible error." Merid v. Commonwealth, 72 Va.App. 104, 108 (2020) (quoting Cantrell v. Commonwealth, 65 Va.App. 53, 56 (2015)), aff'd, 300 Va. 77 (2021), cert. denied sub nom. Merid v. Virginia, 142 S.Ct. 1137 (2022). Turay's "claim that [he] was seized in violation of the Fourth Amendment presents a mixed question of law and fact ...." Id. at 108-09 (quoting King v. Commonwealth, 49 Va.App. 717, 721 (2007)). This Court is "bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." Id. at 109 (quoting Cantrell, 65 Va.App. at 56). "However, we consider de novo whether those facts implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the Fourth Amendment." Id. (quoting Cantrell, 65 Va.App. at 56); see also Moreno v. Commonwealth, 73 Va.App. 267, 274 (2021) ("[We] review[ ] de novo the overarching question of whether a search or seizure violated the Fourth Amendment." (quoting Williams v. Commonwealth, 71 Va.App. 462, 475 (2020))).

B. Motion to Suppress the Fruits of the Unconstitutional Seizure

Turay argues on appeal that the circuit court erred in denying his motion to suppress because Deputy Stroop unreasonably seized him without a warrant and without reasonable, articulable suspicion that he was engaged in criminal activity. The Fourth Amendment protects "[t]he right of the people to be secure in their persons,...