                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Kelsey and McClanahan
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                               MEMORANDUM OPINION * BY
v.     Record No. 0091-10-3                                CHIEF JUDGE WALTER S. FELTON, JR.
                                                                    AUGUST 17, 2010
DETRICK LATORRE HAIRSTON


                   FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                                 David A. Melesco, Judge

                 Benjamin H. Katz, Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellant.

                 Joe Garrett (Garrett & Garrett, P.C., on brief), for appellee.


       Pursuant to Code § 19.2-398, the Commonwealth appeals the pre-trial order of the Circuit

Court of the City of Danville (“trial court”) granting Detrick Latorre Hairston’s (“defendant”)

motion to suppress evidence seized from his person following a stop of the vehicle he was driving.

The Commonwealth contends the trial court erred in ruling that defendant was illegally seized in

violation of the Fourth Amendment when Danville police officers stopped his car, commanded him

to exit his car at gunpoint, and handcuffed him. For the following reasons, we conclude that the

trial court erred in granting defendant’s motion to suppress evidence seized from him and remand

for further proceedings consistent with this opinion.

                                          I. BACKGROUND

       On appeal of an order granting a motion to suppress, we view the evidence in the light

most favorable to the accused, the prevailing party below, granting to the evidence all reasonable


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
inferences fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,

407 S.E.2d 47, 48 (1991). “While we are bound to review de novo the ultimate questions of

reasonable suspicion and probable cause, we ‘review findings of historical fact only for clear error

and . . . give due weight to inferences drawn from those facts by resident judges and local law

enforcement officers.’” Davis v. Commonwealth, 35 Va. App. 533, 538, 546 S.E.2d 252, 255

(2001) (footnote omitted) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).

        The evidence presented at the suppression hearing established that, at 2:17 a.m. on

December 27, 2008, Danville Police Officer J.L. West received a police dispatch that shots had

been fired at an IHOP restaurant near the officer’s location. The dispatch stated that a person

had been shot and that a suspect left the scene in a “dark colored Dodge Durango with rims

headed south on Westover Drive toward Riverside Drive.” At the time he received the dispatch,

Officer West was patrolling approximately two miles from the IHOP. He immediately

proceeded north on Central Boulevard toward the area of the IHOP. He testified that there was

minimal traffic in the area at that time of night. Approximately three minutes later, Officer West

observed “a dark colored [Dodge] Durango on Central [Boulevard] just past the Riverside Drive

. . . heading north on Central at a high rate of speed,” which he estimated to be approximately

eighty miles per hour. Officer West followed the Durango as it took an exit ramp onto Piedmont

Drive, toward the area in which the shots had been reportedly fired. As he followed the

Durango, Officer West checked its license plate tags through the DMV system and received a

report that they were expired. He called for backup and continued to follow the Durango.

        When the vehicle stopped at a traffic light, Officer West activated his patrol car’s

emergency lights. He got out of his patrol car with his gun drawn and commanded the driver of

the Durango to “turn[] the vehicle off, . . . put the keys outside, . . . step out with [his] hands up[,]

. . . walk backwards toward [the officer’s] voice[, and then] . . . get down on his knees and

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innerlock [sic] his fingers on top of his head.” Defendant, the driver of the Durango, complied

with the officer’s commands. At that point, Officer A.K. Hairston arrived, and with his gun

drawn, approached defendant from behind and placed him in handcuffs. As he did so, Officer

Hairston holstered his weapon and asked defendant “if he had any weapons on his person or in

the vehicle.” Defendant responded that he had “a gun in his right front pocket.” At that point,

Officer Hairston had defendant stand up, turned him around, and noticed about an inch of the

butt of a firearm protruding from the top of his front pocket. At the suppression hearing, Officer

Hairston testified that, even if he had not asked defendant whether he had a weapon, he

“would’ve been patted down before placed in the patrol vehicle.”

        Thereafter, defendant was charged with possession of a concealed weapon in violation of

Code § 18.2-308, third offense, and possession of a firearm after having been previously

convicted of a felony in violation of Code § 18.2-308.2.

        Defendant filed motions to suppress evidence seized from him and any statements he

made to police. 1 After hearing the officers’ testimony and the argument of counsel, the trial

court granted defendant’s motion to suppress evidence of the firearm seized from him, stating

that, “under the McCain case, it’s clear to me he had a right to stop the car.” See McCain v.

Commonwealth, 275 Va. 546, 659 S.E.2d 512 (2008) (vehicle stopped for traffic infraction).

However, the trial court further stated:

                They can stop him and they can get him out and they can frisk him
                and what you and I are struggling with how do you get him out of
                the car . . . if there’s some reasonable suspicion but was not
                particularized towards him, particularized towards the car, that he
                may have a gun. I am totally uncomfortable with the way the
                Danville Police handled this. Getting citizens out and putting them

        1
          Defendant filed two motions to suppress: one on November 4, 2009 alleging a violation
of Terry v. Ohio, 392 U.S. 1 (1968), and one on November 16, 2009 alleging a violation of
Miranda v. Arizona, 384 U.S. 436 (1966). The trial court’s statement at the hearing indicates
that it granted the motion to suppress based on Terry and denied the motion to suppress based on
Miranda.
                                               -3-
               on the ground, handcuffing them, and pointing weapons at them is
               bothersome, particularly when it turns out he didn’t have a thing to
               do with what happened at I-HOP and the cost analysis benefit
               doesn’t go down well with me because I believe that people have
               rights and those rights are almost sacred, . . . Terry is about being
               detained and it just seems to me under all the facts of this case
               there is not enough particularization of him and it just seems to me
               to be completely leap frog the detention that Terry allows to go to
               a custody situation. . . . I believe at this point the motion as to the
               4th amendment’s well founded, so . . . I’m going to grant it. . . . I’ll
               put on the record if this ever comes back that as to the 5th
               amendment and what happened, . . . if I am wrong and that is
               proper, I do believe the questioning of him . . . I believe he was in
               custody and I believe they were interrogational questions, but I
               believe inevitable discovery and/or police safety outweigh that.

(Emphasis added).

                                           II. ANALYSIS

                                            A. The Stop

       “The Fourth Amendment protects ‘persons’ from ‘unreasonable searches and seizures.’”

Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) (quoting U.S. Const.

amend. IV).

               Whether the Fourth Amendment has been violated is a question to
               be determined from all the circumstances. Review of the existence
               of probable cause or reasonable suspicion involves application of
               an objective rather than a subjective standard.

               Under well-settled principles of law, police officers may stop a
               person for the purpose of investigating possible criminal behavior
               even though no probable cause exists for an arrest. A stop is
               permissible so long as the officer has reasonable, articulable
               suspicion that criminal activity may be afoot.

McCain, 275 Va. at 552, 659 S.E.2d at 515-16 (citations omitted) (citing Terry v. Ohio, 392 U.S. 1,

21-22 (1968)); see also id. at 553, 659 S.E.2d at 516 (“An officer may effect a traffic stop when he

has reasonable suspicion to believe a traffic or equipment violation has occurred.”).




                                                 -4-
        Here, Officer West received a police dispatch at 2:17 a.m. that someone had been shot at

a nearby restaurant and that a suspect was seen leaving the scene in a dark-colored Dodge

Durango headed toward Riverside Drive. The officer proceeded toward the area where the shots

were fired. It was very early in the morning, and there was not much traffic in the area. Within

three minutes of receiving the dispatch, Officer West observed a vehicle matching the

description of the suspect’s vehicle moving at a high rate of speed, well in excess of the speed

limit, on Central Boulevard just past Riverside Drive. As he followed that vehicle, he received a

report that its registration had expired.

        Based on these facts, we conclude, as did the trial court, that the vehicle’s matching

description and proximity to the shooting, as well as its driver’s observed traffic offenses, provided

a valid basis for the officer stopping the Durango driven by defendant.

                                            B. The Detention

        The Commonwealth argues that the trial court erred in finding that the manner in which

defendant was stopped, commanded to exit his vehicle at gunpoint, and handcuffed exceeded the

bounds of Terry. We agree.

                During the course of a traffic stop, an officer may take certain
                steps to protect himself, such as asking the driver and any
                passengers to exit the vehicle. “[P]olice officers may also detain
                passengers beside an automobile until the completion of a lawful
                traffic stop.” An officer’s authority to order an occupant from a
                vehicle during a traffic stop is justified by the potential risks
                associated with traffic investigation that implicate safety concerns.

McCain, 275 Va. at 553, 659 S.E.2d at 516 (alteration in original) (citations omitted) (quoting

Harris v. Commonwealth, 27 Va. App. 554, 562, 500 S.E.2d 257, 261 (1998)).

        The record shows that at the time Officer West stopped the Durango driven by defendant,

he had probable cause to arrest defendant on two separate traffic offenses. See Virginia v.

Moore, 553 U.S. 164, 176 (2008) (“[W]arrantless arrests for [even minor] crimes committed in


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the presence of an arresting officer are reasonable under the Constitution . . . .”); see also Parker

v. Commonwealth, 255 Va. 96, 105-06, 496 S.E.2d 47, 53 (1998) (where there is probable cause

to arrest, search incident to arrest constitutionally permissible even when search occurs

immediately prior to formal arrest). Moreover, given the radio dispatch he had received only

moments before he observed defendant’s speeding vehicle, he had reason to believe the operator

of that vehicle might be armed and dangerous.

               An officer who draws his gun, like an officer who frisks, need not
               be absolutely certain that the suspect is armed; “the issue is
               whether a reasonably prudent man under the circumstances would
               be warranted in the belief that his safety or that of others was in
               danger.” An officer’s belief that a suspect may be armed and
               dangerous can be predicated on the nature of the criminal activity
               involved.

Wells v. Commonwealth, 6 Va. App. 541, 554-55, 371 S.E.2d 19, 26 (1988) (quoting United States

v. Jackson, 652 F.2d 244, 249 (2d Cir. 1981)).

       Based on the record on appeal, we conclude that the trial court erred in finding that the

officers lacked a reasonable, articulable suspicion that the driver of the vehicle matching the

description of the shooter’s vehicle, found in close proximity (temporal and geographic) to the

shooting, was armed and dangerous and that the officers exceeded the bounds of Terry in the

manner in which they detained him. “Such detention was neither unreasonable nor conducted under

circumstances that constituted the functional equivalent of an arrest.” Thomas v. Commonwealth,

16 Va. App. 851, 858, 434 S.E.2d 319, 323 (1993) (placing suspect in handcuffs during Terry stop

justified where violent crime had just occurred in immediate vicinity and accused, behaving

suspiciously, matched description of suspect), aff’d on reh’g en banc, 18 Va. App. 454, 444 S.E.2d

275 (1994). Accordingly, we conclude the trial court erred in granting defendant’s motion to

suppress.




                                                 -6-
                               C. The Trial Court’s Alternative Ruling

        The fact that the firearm was discovered by the officer after asking defendant if he

possessed a weapon does not alter our analysis. Officer Hairston testified that he would have

frisked defendant had he not been told about and seen the gun. The trial court ruled

alternatively, that if on appeal the officers’ conduct in executing the stop and subsequent

detention of defendant were to be found to be within the bounds of Terry, the fact that defendant

was asked if he had a weapon without being given Miranda warnings would not be a basis for

suppressing the firearm evidence as it would have been inevitably found by the officers. The

trial court stated, “I believe he was in custody and I believe they were interrogational questions,

but I believe inevitable discovery and/or police safety outweigh that.” 2 As defendant did not

challenge this ruling in the trial court or on appeal, it has become the law of the case as to that

issue. See Commonwealth v. Washington, 263 Va. 298, 304, 559 S.E.2d 636, 639 (2002) (“[A]

litigant must object to a ruling of the circuit court if that litigant desires to challenge the ruling

upon appeal.”); Trustees of Asbury United Methodist Church v. Taylor & Parrish, Inc., 249 Va.

144, 154, 452 S.E.2d 847, 852 (1995) (“[S]ince [party] did not object or assign error to [the

circuit court’s] ruling, it has become the law of the case.”). Accordingly, the trial court’s ruling,

not objected to by defendant nor assigned as cross-error on appeal, that the firearm would have

been admissible under the inevitable discovery doctrine, despite failure to give Miranda

warnings, is the law of the case and binding on us on appeal. 3


        2
         See generally Commonwealth v. Jones, 267 Va. 532, 535-38, 593 S.E.2d 204, 206-08
(2004) (tracing history of inevitable discovery doctrine and its application in Virginia).
        3
         Given our ruling, we need not address whether defendant’s claimed violation of
Miranda would have warranted judicial suppression of the weapon. See United States v. Patane,
542 U.S. 630, 636 (2004) (plurality opinion) (“The Self-Incrimination Clause, however, is not
implicated by the admission into evidence of the physical fruit of a voluntary statement.”);
United States v. Sterling, 283 F.3d 216, 219 (4th Cir. 2002); see also Rowley v. Commonwealth,
48 Va. App. 181, 183, 629 S.E.2d 188, 189 (2006) (“In short, the privilege against
                                               -7-
                                      III. CONCLUSION

       For the foregoing reasons, we reverse the trial court’s ruling suppressing the evidence and

remand for further proceedings consistent with this opinion.

                                                                   Reversed and remanded.




self-incrimination is simply ‘not concerned with nontestimonial evidence.’” (quoting Oregon v.
Elstad, 470 U.S. 298, 304 (1985))).
                                               -8-
