                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and O’Brien
UNPUBLISHED


              Argued by teleconference


              COMMONWEALTH OF VIRGINIA
                                                                              MEMORANDUM OPINION* BY
              v.      Record No. 1170-16-1                                    JUDGE MARY GRACE O’BRIEN
                                                                                  DECEMBER 13, 2016
              LAMONT SENTEL STALLINGS


                                  FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                               Jerrauld C. Jones, Judge

                                Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
                                Herring, Attorney General, on briefs), for appellant.

                                London C. Crounse (Protogyrou & Rigney, P.L.C., on brief), for
                                appellee.


                      Pursuant to Code § 19.2-398, the Commonwealth of Virginia brings a pretrial appeal,

              contending that the trial court improperly granted a motion to suppress evidence seized as a result of

              a Fourth Amendment violation. For the following reasons, we affirm the trial court’s decision.

                                                          BACKGROUND

                      Lamont Sentel Stallings (“the defendant”) was charged with possession with intent to

              distribute heroin, in violation of Code § 18.2-248(C), and assault and battery of a police officer, in

              violation of Code § 18.2-57(C). The defendant filed a motion to suppress evidence that was

              obtained by police “as a result of his illegal stop and seizure.” Following a hearing, the court

              granted the motion. The Commonwealth asserts the following assignment of error:

                                The circuit court erred in granting Mr. Stallings’s motion to suppress
                                because the evidence demonstrates that Officer Whitehead had
                                probable cause to arrest Mr. Stallings and the subsequent encounter

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
               provided Officers an additional basis for reasonable suspicion that
               Mr. Stallings was armed and dangerous.

       In a Commonwealth’s appeal of an order suppressing evidence, we consider the evidence in

the light most favorable to the defendant. Commonwealth v. Peterson, 15 Va. App. 486, 487, 424

S.E.2d 722, 723 (1992). So viewed, the evidence established that at approximately 4:15 p.m. on

December 24, 2015, Officer Daryel Whitehead was driving an unmarked patrol car in a residential

area. The road did not have any lane markings. Officer Whitehead testified that the defendant, who

was driving a moped and was traveling in the opposite direction toward the officer, “swerved

directly into [Officer Whitehead’s] lane of traffic.” The officer claimed that he had to “come to an

almost complete stop to avoid” hitting the defendant. Officer Whitehead also stated that he was

traveling ten to fifteen miles per hour, and he estimated that the defendant was traveling twenty

miles per hour, which seemed “too fast for the area.”

       Because he couldn’t safely turn around at that point, Officer Whitehead radioed to two

officers traveling behind him to stop the moped. Officer Maxwell Winfree, who was two cars

behind Officer Whitehead, testified that he followed the defendant into the parking lot of an

apartment complex after he received the radio communication from Officer Whitehead. On

cross-examination, Officer Winfree acknowledged that he did not see the defendant swerve toward

Officer Whitehead and did not observe any traffic infraction. Officer Michael Wiley was also

following Officer Winfree. He did not testify to seeing the defendant drive erratically, but based on

the radio communication from Officer Whitehead, he followed Officer Winfree into the parking lot.

Officer Whitehead arrived at the parking lot about a minute later.

       Officer Whitehead told the defendant that he was driving recklessly and asked for his

operator’s license. After taking the license, Officer Whitehead returned to his vehicle to check the

status of the license and to write a summons. He testified that he was delayed because the

Department of Motor Vehicles’ software program was not working.
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        Officer Wiley testified that he had been asked to “make contact” with the defendant, but he

did not plan to arrest him. The officer requested permission to search the defendant, but the

defendant did not consent. Officer Wiley stated that the defendant, who was seated while Officer

Whitehead began to write the summons, tried to stand up and was “messing with” and “touching”

his pockets. The officer explained that the area had “lots of violent crime” and the defendant was

“nervous [and] fidgety.” Officer Wiley told the defendant that he could be patted down or he was

going to be arrested for obstruction of justice.

        At that point, the defendant broke away and attempted to enter an apartment. The officers

stopped him, searched him, and found the drugs that are the subject of this prosecution. Following

the hearing, the court granted the motion to suppress. The court did not articulate the basis for

granting the motion.

                                              ANALYSIS

        A “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.” Murphy v. Commonwealth, 264 Va.

568, 573, 570 S.E.2d 836, 838 (2002). In making our determination, however, we consider the

evidence and the inferences that arise from the evidence in the light most favorable to the defendant,

the prevailing party. See Singleton v. Commonwealth, 278 Va. 542, 548, 685 S.E.2d 668, 671

(2009). “In performing such analysis, we 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 . . . .” 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)).

        Further, “[a]bsent clear evidence to the contrary in the record, the judgment of a trial court

comes to us on appeal with a presumption that the law was correctly applied to the facts.” Groves v.

Commonwealth, 50 Va. App. 57, 61, 646 S.E.2d 28, 30 (2007) (quoting Yarborough v.

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Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977)). “This means the ‘judge is

presumed to know the law and to apply it correctly in each case.’” Id. at 61-62, 646 S.E.2d at 30

(quoting Crest v. Commonwealth, 40 Va. App. 165, 172 n.3, 578 S.E.2d 88, 91 n.3 (2003)).

        The Fourth Amendment provides:

                [t]he right of the people to be secure in their persons, houses, papers,
                and effects, against unreasonable searches and seizures, shall not be
                violated, and no Warrants shall issue, but upon probable cause,
                supported by Oath or affirmation, and particularly describing the
                place to be searched, and the persons or things to be seized.

When a defendant alleges that the police obtained evidence as a result of a warrantless search that

was conducted in violation of the Fourth Amendment, the Commonwealth has the burden to

establish that the search and seizure did not violate the defendant’s Fourth Amendment rights.

Alexander v. Commonwealth, 19 Va. App. 671, 674, 454 S.E.2d 39, 41 (1995). On appeal, the

Commonwealth must establish that the court’s ruling constituted reversible error. See McGee, 25

Va. App. at 197, 487 S.E.2d at 261.

        The Commonwealth contends that Officer Whitehead had probable cause to place the

defendant under arrest for reckless driving, based on the officer’s testimony that he observed the

defendant weave into the officer’s lane of traffic. However, as the defendant notes, neither of the

two officers traveling directly behind Officer Whitehead testified that they saw the defendant drive

recklessly, and one officer specifically testified that he did not see the defendant drive into the

oncoming lane of traffic. Further, the road did not have lane markings and neither officer testified

that he had to stop to avoid a collision, contrary to Officer Whitehead’s testimony.

        The defendant asserts that the court made a credibility determination adverse to the

Commonwealth, specifically regarding Officer Whitehead’s testimony concerning the defendant’s

driving behavior. Viewing the evidence in the light most favorable to the defendant, there is

evidence to support this conclusion, and therefore we are bound to accept the court’s implicit

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rejection of the officer’s testimony. Accordingly, the detention and search of the defendant violated

his Fourth Amendment rights. Therefore, the trial court correctly suppressed the evidence.

                                                                                           Affirmed.




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