                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Beales and Senior Judge Clements
Argued by teleconference


DAVID JAMES PROFFITT
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1424-10-2                                   JUDGE RANDOLPH A. BEALES
                                                                  NOVEMBER 8, 2011
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                                 Cheryl V. Higgins, Judge1

                 Andre A. Hakes (Tucker Griffin Barnes, P.C., on briefs), for
                 appellant.

                 Gregory W. Franklin, Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       David James Proffitt (appellant) was convicted by the trial court of driving under the

influence pursuant to Code § 18.2-266. On appeal, appellant argues that the trial court erred in

denying his motion to suppress because it applied the wrong standard in evaluating the

constitutionality of the arrest and because, under the correct standard, there was not probable

cause to arrest him. For the following reasons, we conclude that the trial court did not err, and,

therefore, we affirm this conviction on appeal.

                                         I. BACKGROUND

       On May 19, 2009, at around 10:19 p.m., appellant was operating a vehicle in Albemarle

County, Virginia, when Officer James H. Morris stopped his vehicle. Officer Morris arrested


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Judge-Designate William H. Ledbetter, Jr. heard the motion to suppress and the motion to
reconsider.
appellant, obtained a breath sample pursuant to implied consent, and charged him with driving

under the influence, under Code § 18.2-266.

       Appellant filed a pretrial motion to suppress all evidence, arguing that Officer Morris

conducted an unlawful stop and arrest of appellant. At the suppression hearing, Officer Morris

testified that he was dispatched on the night of May 19, 2009 to investigate a motor vehicle

accident in the 1300 block of Briery Creek Road. He received information from the dispatch

center that there was a small pickup truck that appeared to have run off the road and crashed in

that area. When Officer Morris approached the accident scene, he saw a small, gray pickup truck

that seemed to have no lights on that had crashed head-on into a tree; he also saw a small, white

minivan right beside the pickup truck that Officer Morris testified was “involved in the

accident.”

       The video taken from Officer Morris’s vehicle, which was admitted into evidence at the

suppression hearing, reveals that as Officer Morris pulled up behind the accident scene, appellant

started backing up the white minivan onto Briery Creek Road. Almost instantaneously, Officer

Morris activated his flashing emergency lights on his police cruiser. After the lights came on,

Officer Morris noticed the minivan backing up very close to Officer Morris’s cruiser – and then

suddenly and immediately accelerating down the road. At that point, Officer Morris followed

the vehicle – with his flashing emergency lights on – but appellant maintained his swift speed.

Officer Morris then notified dispatch that it appeared that the minivan was fleeing. As Officer

Morris pursued appellant with his emergency lights continuously on, appellant showed no sign of

complying with Officer Morris’s signal to pull over. He did not slow down or put on his turning

signal. Appellant then abruptly pulled over, stopped his car, and then immediately exited the




                                               -2-
vehicle. Officer Morris asked the driver to remain in the vehicle, but appellant walked back at a

“brisk pace” toward Officer Morris’s vehicle. 2

       Concerned about appellant’s driving behavior and appellant’s failure to listen when asked

to stay in the vehicle, Officer Morris placed appellant in a basic takedown, in which Officer

Morris took appellant down to the ground and handcuffed him. Officer Morris arrested appellant

at approximately 10:19 p.m. 3

       The trial court denied appellant’s pretrial motion to suppress. Appellant subsequently

filed a motion to reconsider the court’s ruling on the motion to suppress, and the trial court then

denied the motion to reconsider.

                                          II. ANALYSIS

                                   A. Probable Cause Standard

       On appeal, appellant argues that the trial court did not use the proper standard to evaluate

the constitutionality of his arrest. He contends that the incorrect standard was used because the

trial court stated at both the suppression hearing and when it denied the motion to reconsider that

Officer Morris had “reason to believe” a crime was being committed. However, it is clear that,

when using this particular language, the trial court was actually referring to the probable cause

standard because probable cause was expressly argued at length both at the suppression hearing

and upon appellant’s motion for reconsideration.

       Further, the trial court’s choice of language mirrors the definition of probable cause

enunciated by Virginia’s appellate courts, which is as follows:


       2
          It is unclear from the video whether appellant actually heard Officer Morris’s request to
stay in the vehicle.
       3
          Officer Morris’s notes indicate that the arrest occurred at 10:40 p.m., but the time stamp
of the video indicates that Officer Morris took appellant to the ground and arrested him at
10:19 p.m.

                                                  -3-
               “probable 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.”
               Jones v. Commonwealth, 18 Va. App. 229, 231, 443 S.E.2d 189,
               190 (1994) (quoting Taylor v. Commonwealth, 222 Va. 816, 820,
               284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S. 906 (1982)).
               “The test of constitutional validity is whether at the moment of
               arrest the arresting officer had knowledge of sufficient facts and
               circumstances to warrant a reasonable man in believing that an
               offense has been committed.” Bryson v. Commonwealth, 211 Va.
               85, 86-87, 175 S.E.2d 248, 250 (1970) (citations omitted).

Ford v. City of Newport News, 23 Va. App. 137, 143-44, 474 S.E.2d 848, 851 (1996) (emphasis

added). Virginia case law describes probable cause as existing “when the facts and

circumstances within the officer’s knowledge, and of which he has reasonably trustworthy

information . . . are sufficient to warrant a person of reasonable caution to believe that a crime

has been or is being committed.” Id. (emphasis added). Thus, it is clear that the trial court, using

essentially the same language, applied the probable cause standard. 4 In addition, the trial court is

presumed to know the law, and there is nothing disturbing the presumption that the trial court

knew and applied the proper standard of probable cause here. Henderson v. Commonwealth, 58

Va. App. 363, 376, 710 S.E.2d 482, 489 (2011).




       4
         The trial court stated at the suppression hearing: “I think the officer had – had reason
to believe a crime was being committed and that crime was, of course, that the guy was fleeing
from him.” (Emphasis added). In its order denying the motion to reconsider, the trial court
stated:

               [T]he court is of the opinion that its original decision to deny the
               motion to suppress is correct, based on the law and the evidence, in
               that the police officer’s vehicular stop and the ensuing arrest were
               justified because the officer had reason to believe, as the
               Commonwealth argued, that the defendant was fleeing the scene of
               an accident in which he was involved, and, further, was eluding
               law enforcement as defined by statute.

(Emphasis added).

                                                -4-
       Since the trial court applied the proper standard, this Court must next determine if the

trial court erred in finding probable cause existed here. In order to ascertain whether probable

cause exists, this Court must focus upon “what the totality of the circumstances meant to police

officers trained in analyzing the observed conduct for purposes of crime control.” Hollis v.

Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976) (emphasis added). “[T]he arrest

is . . . valid if, based on the facts known to the officer, objective probable cause existed as to any

crime.” Devenpeck v. Alford, 543 U.S. 146, 154-55 (2004); Bass v. Commonwealth, 259 Va.

470, 475, 525 S.E.2d 921, 923 (2000).

       Here, it is apparent that Officer Morris had probable cause to arrest appellant for

disregarding a signal by a law-enforcement officer to stop in criminal violation of Code

§ 46.2-817. 5

       This Court views the facts in the light most favorable to the Commonwealth because it is

the prevailing party below. Mills v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 723

(1992). In addition, when evidence is challenged under the Fourth Amendment, “‘ultimate

questions of . . . probable cause’” as presented here “involve questions of both law and fact.”

McGee v. Commonwealth, 25 Va. App 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc)

(quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)). Thus, appellate courts “give

deference to the factual findings of the trial court but independently decide whether, under the

applicable law, the manner in which the challenged evidence was obtained satisfies

constitutional requirements.” Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598

(2004) (citation omitted); Brown v. Commonwealth, 270 Va. 414, 419, 620 S.E.2d 760, 762


       5
         The trial court also found there was probable cause to arrest appellant for not complying
with the duty for drivers to stop and report certain information at accidents in which they are
involved (fleeing the scene of an accident) under Code § 46.2-894. However, because this Court
finds probable cause exists that appellant was violating Code § 46.2-817, the Court does not need
to address whether there was also probable cause that appellant was violating Code § 46.2-894.
                                                 -5-
(2005). When the record below is viewed in that light, Officer Morris had probable cause to

stop and arrest appellant for violating Code § 46.2-817.

                           B. Disregarding an Officer’s Signal to Stop

       Code § 46.2-817(A) states that

               [a]ny person who, having received a visible or audible signal from
               any law-enforcement officer to bring his motor vehicle to a stop,
               drives such motor vehicle in a willful and wanton disregard of such
               signal or who attempts to escape or elude such law-enforcement
               officer whether on foot, in the vehicle, or by any other means, is
               guilty of a Class 2 misdemeanor.

       When Officer Morris arrived at the scene and saw appellant’s white minivan, Morris

brought his police cruiser to a stop and activated the cruiser’s blue emergency strobe lights – a

plainly obvious and visible signal from a law enforcement officer to stop the minivan. The blue

lights flashing in appellant’s rearview mirror as appellant was backing up provided an obvious

indication to appellant that Officer Morris was signaling him to stop his vehicle. Despite Officer

Morris’s clear signal, appellant only briefly stopped after backing up and then abruptly

accelerated away from the accident scene in violation of Code § 46.2-817. The video shows the

tires of the minivan moving quickly as the van accelerates away from the police cruiser and the

accident scene.

       In disregard of Officer Morris’s prompt pursuit – with his emergency lights continuously

activated – appellant continued to drive away from the police cruiser, maintaining a swift speed.

Appellant gave Officer Morris absolutely no sign that he would comply with the officer’s signal

to stop. The video of this pursuit clearly shows that there were numerous ways appellant could

have indicated his intention to comply with Officer Morris’s signal to pull over: Appellant could

have driven slowly; he could have applied his brakes (thereby illuminating his rear brake light);

or he could have put on his turning signal to indicate he was preparing to pull over. However,

appellant provided no such indication to the officer that he would comply with the officer’s clear
                                               -6-
and obvious signal to stop. Appellant eventually stopped, suddenly and after having driven

quickly away from the officer’s cruiser. 6

       Probable cause “does not demand any showing that [the officer’s] belief be correct or

more likely true than false” that a criminal offense had occurred or was occurring. Delong v.

Commonwealth, 234 Va. 357, 366, 362 S.E.2d 669, 674 (1987). Thus, this Court need not find

that it was “more likely true than false” that appellant was disregarding Officer Morris’s signal

or attempting to escape or elude Officer Morris; rather, probable cause is a “flexible, common-

sense standard” that in the totality of the circumstances would warrant a “person of reasonable

caution to believe” that appellant was disregarding Officer Morris’s signal or attempting to

escape or elude Officer Morris. Carroll v. United States, 267 U.S. 132, 162 (1925); see Jones, 18

Va. App. at 231, 443 S.E.2d at 190. Furthermore, under the probable cause standard, police

officers are “not required to possess either the gift of prophecy or the infallible wisdom that

comes only with hindsight. They must be judged by their reaction to circumstances as they

reasonably appeared to trained law enforcement officers to exist” at that time. Keeter v.

Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 846 (1981). It is plain that, when viewed in

the totality of the circumstances here, there is abundant evidence that appellant was disregarding

Officer Morris’s signal or attempting to escape or elude Officer Morris. The mounting evidence,

which gave Officer Morris probable cause to arrest appellant, includes that appellant initially

ignored the signal to stop and that he subsequently took the officer on a pursuit of him at a rather

swift rate of speed – without braking to slow down or activating his turning signal to show that

he was preparing to pull over. Hollis, 216 Va. at 877, 223 S.E.2d at 889. Therefore, under the




       6
         The video shows that, while there were trees on either side of the road, there was space
on the side of the road for appellant to pull over safely, and there was no traffic blocking
appellant from pulling over on the rural road.
                                                 -7-
totality of the circumstances, there was probable cause for Officer Morris to arrest appellant for

disregarding an officer’s signal. 7

                                        III. CONCLUSION

        In short, the totality of the circumstances sufficiently warranted an officer of reasonable

caution to believe appellant was disregarding an officer’s signal to stop, in violation of Code

§ 46.2-817. Taylor, 222 Va. at 820, 284 S.E.2d at 836. Thus, the trial court – applying the

appropriate probable cause standard for a lawful arrest – did not err in denying appellant’s

motion to suppress.

        It is also obvious that the trial court was addressing the issue of probable cause when it

heard arguments from trial counsel that expressly addressed the issue of probable cause and

when it made its ruling by indirectly, but clearly finding that probable cause existed for Officer

Morris to arrest appellant. The trial court, thus, did not err in denying appellant’s motion to

suppress and appellant’s motion to reconsider. Accordingly, for the foregoing reasons, we affirm

appellant’s conviction for driving under the influence.



                                                                                          Affirmed.




        7
          It is of no consequence that appellant was not charged with or convicted of violating
this statute. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979); see also Maryland v. Pringle, 540
U.S. 366, 371 (2003) (The validity of a warrantless arrest based on probable cause “does not
depend on whether the suspect actually committed a crime.”).

                                                -8-
