                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia


SHAWN AUBREY JONES
                                          MEMORANDUM OPINION * BY
v.        Record No. 2756-97-2             JUDGE LARRY G. ELDER
                                             NOVEMBER 17, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                Charles L. McCormick, III, Judge
          Buddy A. Ward, Public Defender (Joseph M.
          Teefey, Jr., Assistant Public Defender;
          Office of the Public Defender, on brief), for
          appellant.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.



     Shawn Aubrey Jones (appellant) appeals from his bench trial

conviction for driving under the influence of alcohol in

violation of Code § 18.2-266(ii).    On appeal, he contends that

the community caretaker exception to the warrant requirement did

not justify the stop of his vehicle and that the trial court,

therefore, erroneously denied his motion to suppress.     The

Commonwealth contends that the community caretaker doctrine

justified the stop and that, even if it did not, the officer had

probable cause to detain appellant for speeding.    For the reasons

that follow, we uphold the trial court's denial of appellant's

motion to suppress and affirm his conviction.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                I.

                               FACTS

     At about 9:30 p.m. on April 5, 1997, Officer Nelson Watson

observed a vehicle pass him on Main Street going in the opposite

direction.   The driver, whom Watson recognized as appellant, "had

his left arm out the window waving and was hollering in

[Watson's] direction . . . as he passed [Watson]."   Watson saw no

other vehicles or pedestrians in the area at that time.      Watson

turned his vehicle around, pulled in behind appellant to follow

him and activated his lights in order to make a stop.   Watson

testified that he executed the stop because of
          concern . . . that [appellant] was asking for
          assistance. Several times in my past career
          I've had . . . the drivers [of vehicles] wave
          me over, wave at me [when] they were either
          heading to a problem where they wanted
          assistance . . . or they needed assistance in
          the vehicle[.] [A]t that time that was my
          concern, that he needed assistance.


     "As [Officer Watson] initiated the light," appellant's

vehicle "sped up to approximately 40 [miles per hour] in a posted

25 [mile-per-hour] zone" and made a right turn at the same speed.

Watson then radioed for back-up.     After traveling "a good 500

yards" at that speed, appellant's vehicle was forced to slow down

because several people were standing in the road.    After

proceeding past the pedestrians, appellant pulled over and

stopped.

     In response to Officer Watson's inquiry, appellant said that

nothing was wrong.   However, Officer Watson "detected the odor of



                               - 2 -
alcohol at the vehicle window."   He asked for appellant's

driver's license, but appellant said he did not have it with him.

Two to three hours earlier, Officer Watson had seen appellant

standing with a beer in his hand in a yard in which was parked

the car appellant was driving at the time of the stop.    Due to

this fact, coupled with the odor of alcohol coming from

appellant's vehicle, Watson asked appellant to get out of the car

and questioned him regarding his alcohol consumption.    Appellant

reported that he had drunk a six-pack of beer in the previous

one-and-one-half hours, finishing his last beer about thirty

minutes prior to the stop.
     Watson administered several field sobriety tests, which

appellant did not pass satisfactorily, and Watson placed him

under arrest at 9:35 p.m.    A breathalyzer administered at

10:14 p.m. registered a blood alcohol content of 0.14 grams per

210 liters of breath.   Watson charged appellant for driving under

the influence.   He did not charge him for speeding.

     Appellant moved to suppress, contending that Watson lacked

objective facts providing reasonable suspicion of criminal

activity to support the stop and that stopping appellant under

the community caretaker doctrine to see if he needed assistance

was merely a pretext to investigate whether appellant was drunk.

If Watson had wanted to stop appellant under the community

caretaker doctrine, appellant argued, he should have followed

appellant without activating his lights in order to gather




                                - 3 -
additional information showing that appellant needed assistance.

The Commonwealth's attorney responded that he was "not even

arguing a Terry stop in this, we are arguing our community

caretaker." The trial court ruled,
          I don't necessarily believe this is a
          pretextual stop. I'm not convinced that's
          what the situation was. I think the officer
          was attempting to render assistance because
          he thought he was needed, and then he was
          frustrated in doing so by the fact that
          [appellant] sped up, and tried to get away
          from him.
            *      *      *      *         *      *      *

                Well, I don't think this officer would
           have ever stopped this man if he hadn't stuck
           his arm out of the window and carried on like
           that. . . . [V]iewing all of the
           circumstances, I think the officer acted
           reasonably . . . , so I'm going to deny the
           motion.


The trial court then found appellant guilty of DUI but suspended

execution of the sentence pending the outcome of this appeal.

                                II.

                              ANALYSIS

     At a hearing on a defendant's motion to suppress, the

Commonwealth has the burden of proving that a warrantless search

or seizure did not violate the defendant's Fourth Amendment

rights.   See Simmons v. Commonwealth, 238 Va. 200, 204, 380

S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App.

671, 674, 454 S.E.2d 39, 41 (1995).      On appeal, we view the

evidence in the light most favorable to the prevailing party,

granting to it all reasonable inferences fairly deducible



                               - 4 -
therefrom.    See Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991).   "[W]e are 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."    McGee v. Commonwealth, 25 Va. App.

193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v.

United States, 517 U.S. 690, 699 (1996)).      However, we review de
novo the trial court's application of defined legal standards

such as probable cause and reasonable suspicion to the particular

facts of the case.    See Shears v. Commonwealth, 23 Va. App. 394,

398, 477 S.E.2d 309, 311 (1996); see also Ornelas, 517 U.S. at

699.

       Under these standards, we hold that the officer had probable

cause to stop appellant for speeding.      Therefore, the trial court

did not err in denying appellant's motion to suppress and

convicting him for violating Code § 18.2-266(ii).      Because we

hold the stop proper based on probable cause to believe that

appellant was speeding, we do not address the community caretaker

issue.

       A police officer may conduct an investigatory stop of a

motor vehicle if he has at least "articulable and reasonable

suspicion" that the operator is unlicensed, the vehicle is

unregistered, or the vehicle or an occupant is otherwise subject

to seizure for violating the law.       See Murphy v. Commonwealth, 9




                                - 5 -
Va. App. 139, 143, 384 S.E.2d 125, 127 (1989) (citing Delaware v.

Prouse, 440 U.S. 648, 663 (1979)).       Of course, where an officer

actually observes a driver violate the law, he has probable cause

to stop the driver to issue a traffic citation or take him into

custody.   See May v. Commonwealth, 3 Va. App. 348, 354, 349

S.E.2d 428, 431 (1986).

     The Fourth Amendment requires only that an objectively

reasonable basis exist for a stop.       See, e.g., Whren v. United
States, 517 U.S. 806, 812-13 (1996).      "'[T]hat the officer does

not have the state of mind which is hypothecated by the reasons

which provide the legal justification for the officer's action

does not invalidate the action taken as long as the

circumstances, viewed objectively, justify that action.'"       Id. at

813 (quoting Scott v. United States, 436 U.S. 128, 138 (1978))

(emphasis added); see also Ohio v. Robinette, 519 U.S. 33, 38-39

(1996); Limonja v. Commonwealth, 8 Va. App. 532, 537-38, 383

S.E.2d 476, 479-80 (1989) (en banc).

     "In order for a seizure to occur, an individual must be

under some physical restraint by an officer or have submitted to

the show of police authority."     Thomas v. Commonwealth, 24 Va.

App. 49, 54, 480 S.E.2d 135, 137 (1997) (en banc) (citing

California v. Hodari D., 499 U.S. 621, 628 (1991)).       A suspect is

not seized within the meaning of the Fourth Amendment if he is

fleeing from an officer attempting to apprehend him, and any

evidence obtained during that flight is not the product of a




                                 - 6 -
seizure.   See Hodari D., 499 U.S. at 625-29 (upholding

admissibility of drugs suspect discarded while fleeing from

police because, even though police lacked reasonable suspicion

for stop prior to flight, they had not effected a seizure at time

suspect discarded drugs); see also Woodson v. Commonwealth, 245

Va. 401, 406, 429 S.E.2d 27, 29-30 (1993).

     Here, Officer Watson was justified in stopping appellant

when he observed him speeding.    Although Officer Watson activated

his flashing lights and tried to stop appellant before appellant
began speeding, appellant failed to comply with Officer Watson's

show of authority and, therefore, he was not seized until after

Watson observed him speeding.    Therefore, Officer Watson had

probable cause for the seizure by the time appellant submitted to

Watson's show of authority.   That Officer Watson did not rely on

appellant's speeding as the basis for his stop is irrelevant

under this analysis, for facts known to Officer Watson made the

stop of appellant for speeding objectively reasonable under the

Fourth Amendment.

     It also matters not that the Commonwealth did not assert

probable cause to believe appellant was speeding as a basis for

Officer Watson's stop.   Rule 5A:18 does not require an appellee

"to raise an issue at trial before it may be considered on appeal

where the issue is not offered to support reversal of a trial

court ruling."   See, e.g., Driscoll v. Commonwealth, 14 Va. App.

449, 451-52, 417 S.E.2d 312, 313 (1992).   Here, the trial court



                                 - 7 -
implicitly found that the officer's testimony was credible 1 and

expressly ruled that the officer "acted reasonably" under "all of

the circumstances."   Regardless of whether the court relied on

the probable cause analysis as a basis for its denial of the

motion to suppress, it reached the proper result, and we uphold

that result on appeal.   See, e.g., id. at 452-53, 417 S.E.2d at

313-14 (holding that appellate court may affirm judgment of trial

court when it has reached right result for wrong reason).
     For these reasons, we affirm appellant's conviction.

                                                        Affirmed.




     1
      In ruling, the trial judge said, "I think the officer was
attempting to render assistance . . . , and then he was
frustrated in doing so by the fact that [appellant] sped up
. . . ."



                               - 8 -
Benton, J., dissenting.

     Appellate courts may apply the doctrine of "right result,

wrong reason" only in "proper case[s]."     See Eason v. Eason, 204

Va. 347, 352, 131 S.E.2d 280, 283 (1963).    This is not a proper

case for the rule.   We have previously held, for example, that

the "right result for the wrong reason . . . rule . . . may not

be used if the correct reason for affirming the trial court was

not raised in any manner at trial."    Driscoll v. Commonwealth, 14

Va. App. 449, 452, 417 S.E.2d 312, 313-14 (1992).     See also

Eason, 204 Va. at 352, 131 S.E.2d at 283.    Furthermore, this rule

may not be used "where, because the trial [judge] has . . .

confined [the] decision to a specific ground, further factual

resolution is needed before the right reason may be assigned to

support the trial [judge's] decision."    Driscoll, 14 Va. App. at

452, 417 S.E.2d at 314.   See also Sateren v. Montgomery Ward and

Co., 234 Va. 303, 305-06, 362 S.E.2d 324, 326 (1987).

     At trial, the Commonwealth's attorney informed the trial

judge, "we are not even arguing a Terry stop in this, we are
arguing our community caretaker; the officer . . . [has] not

articulated that there may . . . [have been] criminal activity."

 Relying solely upon the community caretaker argument advanced by

the Commonwealth, the trial judge found that "the officer was

attempting to render assistance because he thought he was

needed."   The Commonwealth advanced no other theory to support

the officer's actions, and the trial judge made no findings or




                               - 9 -
rulings that support any other theory.

     Moreover, because of the Commonwealth's attorney's

concession that the officer had not articulated a suspicion of

criminal activity, the record clearly proves that neither the

issue of reasonable articulable suspicion nor the issue of

probable cause to support the stop "was ever brought to the

attention of the [trial judge], that [neither issue] was ever

argued before [the judge], or that [the judge] was ever called

upon, in any manner, to rule thereon."   Eason, 204 Va. at 352,

131 S.E.2d at 283.   Thus, I would hold that this is not a proper

case for the "right result for the wrong reason" rule.

     In Barrett v. Commonwealth, 250 Va. 243, 462 S.E.2d 109

(1995), the Supreme Court addressed essentially the same issue

posed in this case, i.e., whether odd or unusual conduct will

support an investigative stop of a person who is not evidently

engaged in criminal conduct.   Id. at 248, 462 S.E.2d at 112.    In

Barrett, the trial judge found that the officer's conduct was

reasonable and that "'due to the unusual situation which [the

officer] was confronted with[, the officer] was required to

investigate [and that] it was natural for [the officer's]

curiosity to be aroused, since this was a situation that was not

seen very often.'"   250 Va. at 245, 462 S.E.2d at 111.   However,

the Supreme Court held that finding insufficient because "'odd'

conduct, without more, did not give rise to 'a reasonable

suspicion, based on objective facts' that [the driver] needed



                               - 10 -
police assistance."   Id. at 248, 462 S.E.2d at 112.    In the

absence of "'a reasonable suspicion, based on objective facts,

that the individual is involved in criminal activity,'" a driver

is free to drive without being ordered to stop.     Id. at 247, 462

S.E.2d at 112 (quoting Leeth v. Commonwealth, 223 Va. 335, 340,

288 S.E.2d 475, 478 (1982) (emphasis added)).

     Because the Commonwealth relied solely upon the community

caretaker doctrine, to the express exclusion of any other theory,

and because the trial judge based his ruling solely upon the

community caretaker doctrine, I would hold that the record fails

to support the trial judge's application of that doctrine in

refusing to suppress the evidence.     For these reasons, I would

reverse the conviction and remand for a new trial.




                              - 11 -
