                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Beales and Powell
Argued at Alexandria, Virginia


DWAYNE SHELDON RHOADES
                                                             MEMORANDUM OPINION * BY
v.     Record No. 1359-08-4                                    JUDGE LARRY G. ELDER
                                                                   JULY 21, 2009
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                               William D. Hamblen, Judge

                 William J. Baker for appellant.

                 Susan M. Harris, Assistant Attorney General (William C. Mims,
                 Attorney General; Rosemary V. Bourne, Assistant Attorney General,
                 on brief), for appellee.


       Dwayne Sheldon Rhoades (appellant) appeals his bench trial conviction for grand larceny

of an automobile. He argues that the evidence should have been suppressed because the police

officer did not have reasonable suspicion to effect a traffic stop. Because the evidence

establishes appellant did not submit to the officer’s show of authority until after appellant

committed a traffic violation, sufficient reasonable suspicion existed to justify the stop. Thus,

we affirm appellant’s conviction.

                                                   I.

                                          BACKGROUND

       On March 16, 2006, at approximately 2:00 a.m., Officer C.M. Wurie was patrolling a

shopping center when he noticed appellant’s vehicle parked in front of a Video Two store. The

shopping center had been burglarized approximately six times over the past year, so the police

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
were instructed to regularly check the area. Appellant’s vehicle was situated directly in front of

the store even though the area was not designated as a parking zone. None of the businesses in

the shopping center were open, and appellant’s car was the only other vehicle in the area. The

vehicle was running, and the lights were on.

       As Wurie drove past appellant’s vehicle, appellant saw Wurie and waved at him. Wurie

made a U-turn in order to stop appellant and question him about his presence in front of the

store. Before Wurie could complete his U-turn, appellant drove off. Wurie initially lost sight of

appellant but soon found him as he was pulling out of the parking lot of a nearby car dealership.

       Wurie activated his lights, but appellant did not stop. Wurie next activated his sirens, but

appellant continued until he ran a stop sign and “crashed” into a cul-de-sac. Appellant then

jumped out of the vehicle and attempted to flee the scene. After catching appellant, Wurie ran

his information and discovered that he had been driving on a suspended license. Further

investigation revealed that the vehicle appellant had been driving was reported stolen.

       During the suppression hearing, appellant argued that Wurie lacked reasonable suspicion

to conduct an investigatory stop, but failed to articulate when precisely the stop occurred. The

trial court, based on the arguments presented at the hearing, determined that there was a

“reasonable articulable suspicion . . . based upon the facts and circumstances of the case,” which

“developed into probable cause.” Appellant subsequently pled guilty to reckless driving and

driving on a suspended license, and the trial court found him guilty of grand larceny in a bench

trial. Appellant now appeals the grand larceny conviction to this Court.

                                                II.

                                           ANALYSIS

       The incriminating evidence in this case stems from appellant’s vehicular encounter with

Officer Wurie, which appellant argues was in violation of his rights under the Fourth

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Amendment. “What the Fourth Amendment prohibits ‘is not all searches and seizures, but

unreasonable searches and seizures.’” Buhrman v. Commonwealth, 275 Va. 501, 505, 659

S.E.2d 325, 327 (2008) (quoting Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d

889, 899 (1968)). Whether the Fourth Amendment has been violated is a question to be

determined from all the circumstances and is viewed under an objective standard. See Samson v.

California, 547 U.S. 843, 848, 126 S. Ct. 2193, 2197, 165 L. Ed. 2d 250, 256 (2006); Terry, 392

U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906.

       A defendant’s claim that evidence was seized in violation of the Fourth Amendment

presents a mixed question of law and fact that we review de novo on appeal. See McCain v.

Commonwealth, 275 Va. 546, 551, 659 S.E.2d 512, 515 (2008); Murphy v. Commonwealth, 264

Va. 568, 573, 570 S.E.2d 836, 838 (2002). In making such a determination, we give deference to

the factual findings of the trial court, but we independently determine whether the manner in

which the evidence was obtained meets the requirements of the Fourth Amendment. Bolden v.

Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002); Bass v. Commonwealth, 259

Va. 470, 475, 525 S.E.2d 921, 924 (2000). It is appellant’s burden to show that the trial court’s

denial of his motion to suppress was reversible error when considering the evidence in the light

most favorable to the Commonwealth. McCain, 275 Va. at 552, 659 S.E.2d at 515.

       On brief, the Commonwealth argues for the first time that appellant was not seized for

purposes of the Fourth Amendment until after he committed a traffic infraction. Thus, the

Commonwealth avers it is irrelevant whether Wurie had reasonable suspicion when he initially

encountered appellant in the parking lot. As the Commonwealth correctly points out, the Fourth

Amendment does not apply to police conduct unless there has been a seizure that “restrains [an

individual’s] freedom to walk away.” Terry, 392 U.S. at 16, 88 S. Ct. at 1877, 20 L. Ed. 2d at

903. Without a seizure, there is no Fourth Amendment violation. Because “[w]e do not hesitate,

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in a proper case, where the correct conclusion has been reached but the wrong reason given, to

sustain the result and assign the right ground[,]” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d

280, 283 (1963), we must analyze this threshold issue before determining whether Wurie

possessed reasonable suspicion. 1

        “A person is ‘seized’ within the meaning of the Fourth Amendment if, under the

circumstances presented, a reasonable person would believe he was not free to leave the scene of

an encounter with the police.” McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541,


       1
           The Supreme Court of Virginia recently held that an appellate court cannot sustain a
conviction on grounds not presented to the trial court. Whitehead v. Commonwealth, 278 Va.
105, 677 S.E.2d 265 (2009), petition for reh’g filed (July 6, 2009). In that case, the defendant
was convicted of multiple counts for receiving stolen property. The panel of this Court affirmed
her convictions on the theory of concealment, as opposed to the theory of constructive receipt—
the grounds upon which the parties argued at trial. The Supreme Court held that constructive
receipt was not a valid theory in Virginia, and further held that it was improper to affirm the
convictions on the theory of concealment because it was not argued in the trial court or before
this Court. Thus, it was improper to invoke the alternate grounds doctrine to sustain the
convictions.
         Whitehead does not require this Court to limit the analysis to reasonable suspicion as
dictated by the parties at the suppression hearing because it did not overturn the established
doctrine of sustaining a correct result on another, proper ground. Rather, this rationale prohibits
arguments addressing discrete elements of a crime or separate doctrines of adjudication that
require additional fact-finding. See Brown v. Commonwealth, 270 Va. 414, 421 n.2, 620 S.E.2d
760, 764 n.2 (2005) (refusing to apply the doctrine of inevitable discovery as an alternative
means of overcoming the lack of probable cause); McLellan v. Commonwealth, 37 Va. App.
144, 155, 554 S.E.2d 699, 704 (2001) (noting that the doctrine permitting an appellate court to
affirm on an alternate ground requires that “the correct reason and its factual basis [be] presented
at trial”).
         On the contrary, the issue here of whether there was a seizure was subsumed by the
analysis of reasonable suspicion. It cannot be said that the issue of seizure was not before the
trial court because there can be no Fourth Amendment violation without a seizure. See Brown v.
Texas, 443 U.S. 47, 50, 99 S. Ct. 2637, 2640, 61 L. Ed. 2d 357, 361 (1979). The trial court
therefore implicitly determined when appellant was seized for purposes of the Fourth
Amendment and applied the requisite reasonableness analysis at that juncture. The evidence
adduced during appellant’s actual trial establishes that he was not seized until after he disobeyed
a stop sign. See Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994)
(expanding the “review of the record [to] include[] evidence adduced at both the trial and the
suppression hearing”). Reevaluating when appellant was seized does not require us to recast the
evidence to fit a theory that was never before the court.


                                                -4-
546 (2001) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64

L. Ed. 2d 497, 509 (1980)). No seizure occurs under the Fourth Amendment until the defendant

fully complies with a law enforcement officer’s show of authority. See California v. Hodari D,

499 U.S. 621, 626, 111 S. Ct. 1547, 1551, 113 L. Ed. 2d 690, 697 (1991); Woodson v.

Commonwealth, 245 Va. 401, 405-06, 428 S.E.2d 27, 29 (1993); Jones v. Commonwealth, 52

Va. App. 548, 557, 665 S.E.2d 261, 265 (2008).

       In this case, appellant was not seized until Wurie tackled him after he abandoned the

vehicle and attempted to flee on foot. Even though Wurie intended to stop appellant in the

shopping center parking lot, appellant’s immediate departure rendered this attempt unsuccessful.

See Hodari D, 499 U.S. at 626 n.2, 111 S. Ct. at 1551 n.2, 113 L. Ed. 2d at 697 n.2 (“But neither

usage nor common-law tradition makes an attempted seizure a seizure.”). Even when Wurie

activated his lights and siren, appellant refused to stop the vehicle. Only when Wurie tackled

appellant and used “physical force to restrain [appellant’s] movement” did a seizure take place.

Id. at 626, 111 S. Ct. at 1550, 113 L. Ed. 2d at 697.

       By this point, Wurie had more than reasonable suspicion to stop appellant because, while

Wurie was pursuing appellant’s vehicle and appellant had not yet submitted to Wurie’s show of

authority, appellant committed a traffic violation by not obeying a stop sign. Thus, we need not

decide whether Wurie’s prior observations alone give rise to reasonable suspicion because this

infraction gave Wurie sufficient justification to stop appellant. See McCain, 275 Va. at 553, 659

S.E.2d at 516 (holding that an officer may lawfully stop a vehicle “when he has reasonable

suspicion to believe a traffic or equipment violation has occurred”). Because the evidence

proving appellant had stolen the vehicle flowed from this lawful seizure, no Fourth Amendment

violation occurred.




                                                -5-
                                               III.

                                        CONCLUSION

       Because the trial court did not err in denying appellant’s motion to suppress, we affirm

his conviction for grand larceny of an automobile.

                                                                                        Affirmed.




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