                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, McClanahan and Senior Judge Willis
Argued at Chesapeake, Virginia


BRIAN ALAN THOR
                                                             MEMORANDUM OPINION * BY
v.     Record No. 2595-08-1                               JUDGE ELIZABETH A. McCLANAHAN
                                                                    MARCH 9, 2010
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                              Johnny E. Morrison, Judge 1

                 Gregory K. Matthews (Brenda C. Spry; Office of the Public
                 Defender, on brief), for appellant.

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


       Brian Alan Thor appeals his convictions for possession of cocaine, assaulting a police

officer, and resisting arrest. He argues the trial court erred in denying his motion to suppress drugs

obtained from an illegal arrest.2 We reverse and remand to the trial court the conviction for

possession of cocaine. We affirm the convictions for assaulting a police officer and resisting arrest.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Judge Dean W. Sword, Jr., presided over the hearing on appellant’s motion to suppress
the evidence.
       2
          Thor also argues the officers made an illegal entry into his hotel room and that he had a
right to resist an illegal arrest. Thor did not make these arguments in either his written motion to
suppress or at the hearing on his motion. Furthermore, he did not move the trial court to
suppress his assault against the officer after his arrest nor did he object to the testimony
regarding his assault at trial. Therefore, these arguments are waived under Rule 5A:18. “[T]his
Court ‘will not consider an argument on appeal [that] was not presented to the trial court.’”
Farnsworth v. Commonwealth, 43 Va. App. 490, 500, 599 S.E.2d 482, 487 (2004) (quoting
Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998)).
                                    I. STANDARD OF REVIEW

        To prevail on appeal Thor bears the burden to “show that the trial court’s denial of his

suppression motion, when the evidence is considered in the light most favorable to the prosecution,

was reversible error.” Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003).

Although we review the trial court’s application of the law de novo, Kyer v. Commonwealth, 45

Va. App. 473, 479, 612 S.E.2d 213, 216-17 (2005) (en banc), we defer to the trial court’s findings

of fact taking care ‘“both to review findings of historical fact only for clear error and to give due

weight to inferences drawn from those facts by resident judges and local law enforcement officers.’”

Malbrough v. Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 3 (2008) (quoting Reittinger v.

Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000) (citation omitted)); see also Ferguson

v. Commonwealth, 52 Va. App. 324, 334, 663 S.E.2d 505, 510 (2008), aff’d, 278 Va. 118, 677

S.E.2d 45 (2009). “Thus, we must give ‘deference to the factual findings of the trial court’ and

‘independently determine’ whether those findings satisfy the requirements of the Fourth

Amendment.” Kyer, 45 Va. App. at 479, 612 S.E.2d at 217 (quoting Whitfield, 265 Va. at 361, 576

S.E.2d at 464). We consider the evidence adduced at the hearing on the motion to suppress as well

as the evidence adduced at trial. Dodd v. Commonwealth, 50 Va. App. 301, 306, 649 S.E.2d 222,

224 (2007); DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987).

                                            II. ANALYSIS

        Thor argues the police lacked probable cause to arrest him for either falsely summoning the

police or for disorderly conduct -- the two offenses relied upon by the Commonwealth to justify

Thor’s arrest and the search incident to his arrest. 3 Because the arrest was illegal, Thor contends,

the drugs obtained from his arrest should have been suppressed.


        3
         Thor was never charged with disorderly conduct. He was charged with falsely
summoning the police but found not guilty in the trial court. A defendant need not be charged
with or convicted of the offense giving police probable cause for an arrest. See, e.g., Devenpeck
                                               -2-
        “[P]robable cause exists when the facts and circumstances within the officer’s knowledge,

and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of

reasonable caution to believe that an offense has been or is being committed.” Taylor v.

Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981). Probable cause does not ‘“deal

with hard certainties, but with probabilities.’” Slayton v. Commonwealth, 41 Va. App. 101, 106,

582 S.E.2d 448, 450 (2003) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality)). Nor

does it “demand any showing that such a belief be correct or more likely true than false.” Id.

(quoting Brown, 460 U.S. at 742). Instead, probable cause “requires only a probability or

substantial chance of criminal activity, not an actual showing of such activity.” Illinois v. Gates,

462 U.S. 213, 243 n.13 (1983).

                                    A. False Summons of Police

        At approximately 3:00 a.m., Thor called on a non-emergency police dispatch line from a

room at the Renaissance Hotel and was “screaming at the top of his lungs,” “very irate,” and

“hysterical.” He then called 911 and demanded to speak with Detective Thomas saying he was

arrested earlier by Thomas and “his life was in danger.” He was told Detective Thomas was not on

duty but another officer would be sent. Thor was “still very irate and hysterical and advised that his

life was in danger,” but he only wanted Detective Thomas. When the police arrived and identified

themselves as police officers, Thor continued to scream that he “need[ed] help” but he only needed

Detective Thomas. Upon entering Thor’s room, the police arrested him for falsely summoning



v. Alford, 543 U.S. 146 (2004) (in determining legality of arrest, offense for which there is
probable cause not required to be related to offense stated by officer at time of arrest); United
States v. Robinson, 414 U.S. 218 (1973) (defendant convicted of narcotics offense arising from
search incident to arrest for driving under revoked license); Jordan v. Commonwealth, 207 Va.
591, 151 S.E.2d 390 (1966) (fact that defendant not charged with offense giving officers
probable cause to arrest irrelevant to legality of arrest); Slayton v. Commonwealth, 41 Va. App.
101, 582 S.E.2d 448 (2003) (where defendant arrested for possession of cocaine, possession of
concealed weapon could be used as basis for search incident to arrest though defendant was
never charged with that violation).
                                                 -3-
police. Because Thor was resisting and fighting against the officers, they had to carry him to the

elevator and to their vehicle. Once they reached the vehicle, the police searched Thor and found

cocaine. Officer Christopher Clinton testified the police determined Thor had no injuries and was

not requesting or in need of medical assistance after they arrested him.

       Code § 18.2-461 provides, “[I]t shall be unlawful for any person . . . without just cause

and with intent to interfere with the operations of any law-enforcement official, to call or

summon any law-enforcement official by telephone or other means, including engagement or

activation of an automatic emergency alarm.” (Emphasis added). Even by the officer’s own

testimony, only after the police placed Thor into custody did they ascertain facts giving them

probable cause to believe Thor was falsely summoning police. Therefore, at the time of Thor’s

arrest, the police did not possess facts and circumstances to warrant a belief that Thor was

summoning the police “without just cause and with intent to interfere with the operations of any

law-enforcement official.” Code § 18.2-461.

                                       B. Disorderly Conduct

       In addition to calling the police dispatcher, Thor had been calling the front desk of the

hotel saying he needed help. When Officer Clinton went to Thor’s hotel room, he could hear

him screaming from the hallway that he needed help and he needed Detective Thomas.

Although he initially refused to let police in and security personnel were getting ready to open

the door for the police, Thor finally opened the door. After he opened the door, Thor backed up

and appeared to reach for something. Officer Clinton and another officer tackled him to the floor

and took him into custody.

       Code § 18.2-415 provides in pertinent part that:

               [a] person is guilty of disorderly conduct if, with the intent to cause
               public inconvenience, annoyance or alarm, or recklessly creating a
               risk thereof, he:

                                                 -4-
               A. In any . . . public building, . . . or public place engages in
               conduct having a direct tendency to cause acts of violence by the
               person or persons at whom, individually, such conduct is
               directed[.]

(Emphasis added). At the time Thor was arrested, the police did not possess any facts warranting

a belief that Thor’s conduct was directed at any person in particular or that Thor’s conduct would

provoke a violent response. Although Thor was screaming for help and for Detective Thomas,

he “made no threatening remarks, uttered no words that would reasonably incite a breach of the

peace, [and] made no threatening movements toward the officers.” Ford v. City of Newport

News, 23 Va. App. 137, 144, 474 S.E.2d 848, 851 (1996). And, “[t]here is simply no evidence

in the record to support a reasonable belief . . . that the officers considered [Thor’s reaching for

something] to be an assault.” Id. 4

                                            III. CONCLUSION

        Because the police lacked probable cause to arrest Thor for either falsely summoning

police or for disorderly conduct, we find the trial court erred in denying Thor’s motion to

suppress the drugs obtained from his arrest. Therefore, we reverse the conviction for possession

of cocaine and remand this case to the trial court for a new trial on that charge if the

Commonwealth be so advised. The convictions for assault on a police officer and resisting arrest

are affirmed since Thor’s argument that he had a right to resist an illegal arrest was waived. 5

                                                                       Affirmed, in part, and reversed
                                                                       and remanded, in part.




       4
          In the trial court, Thor also argued he was not in a public place within the meaning of
Code § 18.2-415(A). Although he does not make this argument on appeal, our finding that the
facts did not warrant a reasonable belief Thor’s conduct had a direct tendency to cause violence
makes it unnecessary for us to reach the issue of whether Thor was in a public place.
       5
         Thor does not argue that the trial court erred in failing to grant his motion to strike the
assault or resisting arrest charges.
                                                -5-
