                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Kelsey and McClanahan
Argued at Richmond, Virginia


RAYMOND ANDREW MESSIER, IV
                                                               MEMORANDUM OPINION* BY
v.      Record No. 1956-06-2                                     JUDGE LARRY G. ELDER
                                                                     MAY 15, 2007
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
                           Margaret P. Spencer, Judge Designate

                  Mark E. Englisby (Englisby, Englisby, Vaughn & Englisby, on
                  brief), for appellant.

                  Craig W. Stallard, Assistant Attorney General (Robert F. McDonnell,
                  Attorney General, on brief), for appellee.


        Raymond Andrew Messier, IV (appellant) appeals from his bench trial convictions for

assault and battery on a police officer and obstruction of justice. On appeal, he contends the

officers’ entry of a private residence to seize his person violated the Fourth Amendment under

the facts of this case and that their seizure of him as a result of that entry constituted an illegal

arrest that he was entitled to resist. We hold the trial court did not err, and we affirm appellant’s

convictions.

                                                   I.

        “An unlawful arrest or an arrest utilizing excessive force is a battery because that

touching is not justified or excused and therefore is unlawful.” Gnadt v. Commonwealth, 27

Va. App. 148, 151, 497 S.E.2d 887, 888 (1998). In either case, the arrestee may use reasonable

force to resist the arrest. See Palmer v. Commonwealth, 143 Va. 592, 602-03, 130 S.E. 398, 401

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(1925); Foote v. Commonwealth, 11 Va. App. 61, 69, 396 S.E.2d 851, 856 (1990). Here, it is

undisputed that the officers had probable cause to arrest appellant for public intoxication, see

infra Part I(B), but appellant contends the officers’ entry of a private residence to effect the arrest

violated the Fourth Amendment and rendered the arrest unlawful, entitling him to use reasonable

force to resist it. Thus, he contends, the trial court should have (a) granted his motion to

suppress the evidence of his actions, rather than any evidence found, or (b) found that the

evidence failed to support his convictions because it did not prove a lawful arrest.

                                                  A.

                                     MOTION TO SUPPRESS

       Assuming without deciding the officers’ entry of the residence immediately prior to

arresting appellant was unlawful, this fact would not entitle appellant to have the evidence of his

resistance suppressed. We considered and rejected just such an argument in Brown v. City of

Danville, 44 Va. App. 586, 606 S.E.2d 523 (2004). Brown involved a police response to a

domestic disturbance and an officer’s attempt to frisk Brown for weapons. Id. at 592-93, 606

S.E.2d at 526-27. Brown resisted the officer’s efforts to frisk him and kept putting his hands in

his pockets despite the officer’s repeated directions to him to remove his hands from his pockets.

Id. at 593, 606 S.E.2d at 527. The officer warned Brown he would “‘arrest [Brown] for

impeding’” if he put his hands in his pockets again, but Brown again ignored the officer’s

directive. Id. When the officer forcibly removed Brown’s hands from his pocket, Brown “had

‘something balled up in his right hand.’” Id. The officer grabbed Brown’s right hand and told

him he was under arrest. Id. Brown resisted the efforts of both officers to subdue him, both

before and after they handcuffed him. Id. at 593-94, 606 S.E.2d at 527. In a search of Brown,

the officers found cocaine. Id. at 594, 606 S.E.2d at 527.




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          Brown was charged with obstruction of justice and possession of cocaine. Id. The trial

court ruled that the search of his person was unconstitutional and suppressed the cocaine, and

that ruling was not challenged on appeal by the city. Id. at 594 & n.2, 606 S.E.2d at 527-28 &

n.2. Nevertheless, the trial court convicted Brown for obstruction of justice based on his

resisting the officers’ attempts to arrest him for possessing the cocaine. Id. at 594-95, 606 S.E.2d

at 528.

          On appeal, Brown contended that his struggle with the officers was the fruit of the

poisonous tree--the search the court held was illegal--and that the trial court should have

suppressed not only the cocaine found in the search but also all testimony describing Brown’s

struggle with the officers. Id. at 598-99, 606 S.E.2d at 530. In a case of first impression in

Virginia, we noted as follows:

                 [F]ederal and state courts alike have uniformly rejected the
                 argument that trial courts should suppress “evidence relating to
                 [the defendant’s] violence or threatened violence toward police
                 officers subsequent to an unlawful search or seizure or a
                 warrantless entry.” United States v. Waupekenay, 973 F.2d 1533,
                 1537 (10th Cir. 1992); see also State v. Aydelotte, 665 P.2d 443,
                 447 (Wash. App. 1983) (“All courts which have considered this
                 issue . . . agree that evidence of post-entry assaults on police
                 officers are outside the scope of the exclusionary rule.”). . . .

Id. at 599, 606 S.E.2d at 530 (emphasis added). Further, we “agree[d]” in Brown “with the

overwhelming weight of authority, . . . hold[ing] that, if a person engages in new and distinct

criminal acts in response to unlawful police conduct, the exclusionary rule does not apply, and

evidence of the events constituting the new criminal activity, including testimony describing the

defendant’s own actions, is admissible.” Id. at 600, 606 S.E.2d at 530; cf. United States v.

Moore, 483 F.2d 1361, 1364-65 (9th Cir. 1973) (where unlawful search of suitcase led to

discovery of marijuana and arrest of suitcase’s owner for possession, holding that arrest was

unlawful only in a “derivative sense” and that arrestee was not privileged to resist because “the

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resolution of often difficult issues relating to the lawfulness of the search [upon which the

challenged arrest was based] are surely best left to subsequent court proceedings”).

       Thus, appellant was not entitled to suppress evidence establishing that he resisted arrest,

which provided the basis for both his assault and battery and obstruction of justice convictions.

As we noted in Brown, “‘evidence of post-entry assaults on police officers are outside the scope

of the exclusionary rule.’” 44 Va. App. at 599, 606 S.E.2d at 530 (quoting Aydelotte, 665 P.2d

at 447).

                                                  B.

                               SUFFICIENCY OF THE EVIDENCE

       Appellant also challenges the sufficiency of the evidence to support his convictions,

contending for the reasons already discussed that the evidence established his arrest was

unlawful, thereby entitling him to resist it. “‘[W]hen the issues are the lawfulness of an arrest

and the reasonableness of force used to resist an unlawful arrest, the ultimate questions involve

law and fact and are reviewed de novo on appeal.’” Id. at 603, 606 S.E.2d at 532 (quoting

Brown v. Commonwealth, 27 Va. App. 111, 117, 497 S.E.2d 527, 530 (1998)).

       Whether the police entry of the residence violated the Fourth Amendment is not relevant

to determining the lawfulness of the subsequent arrest for purposes of assessing appellant’s right

to resist. See id. at 603-06, 606 S.E.2d at 532-33. Instead, “[i]n Virginia, . . . [t]he lawfulness of

an attempted arrest [for purposes of assessing an arrestee’s right to resist the arrest] is determined

by [Code §§ 19.2-77, 19.2-81, and 19.2-100].” Brown, 27 Va. App. at 116, 497 S.E.2d at 530;

see Brown, 44 Va. App. at 603-06, 606 S.E.2d at 532-33; see also Johnson v. United States, 333

U.S. 10, 15 & n.5, 68 S. Ct. 367, 370 & n.5, 92 L. Ed. 436, 441 & n.5 (1948) (in reviewing

reasonableness of search claimed constitutional as incident to arrest, holding state law

“determine[s] whether the arrest itself was lawful”). Code § 19.2-81, the statute applicable here,

                                                 -4-
provides in pertinent part that a police officer “may arrest, without a warrant, any person who

commits any crime in the presence of the officer and any person whom he has reasonable

grounds or probable cause to suspect of having committed a felony not in his presence.” Thus,

“[t]he dispositive question is whether the officers had probable cause to arrest . . . .” Smith v.

Commonwealth, 30 Va. App. 737, 740, 519 S.E.2d 831, 832 (1999).

       Here, the officers had probable cause to arrest appellant for public intoxication after

seeing him in an inebriated condition inside the house, seeing him outside the residence only a

few minutes later in a location open to public view, and learning that appellant had said he

intended to continue drinking and to leave the residence as soon as the police departed, which

would again have placed him in public view. See, e.g., Crislip v. Commonwealth, 37 Va. App.

66, 71-72, 554 S.E.2d 96, 98-99 (2001) (holding intoxicated defendant, who was “on his front

porch in open view of nearby neighboring homes and the public street, was in a place visible to

the public for purposes of the [public intoxication] statute”). This information provided the

officers with probable cause for arrest, a fact not challenged by appellant at trial or on appeal.

Whether the entry violated the Fourth Amendment simply was not relevant to whether the

subsequent arrest was “lawful” in the context of this case.

                                                 II.

       We hold appellant was not entitled to use reasonable force to resist his arrest because,

assuming without deciding the arrest violated the Fourth Amendment, this violation did not

render the arrest unlawful in the sense required to permit him to resist or to render the evidence

insufficient to support his convictions for assault and battery and obstruction. Because the arrest

was lawful and appellant established no right to resist, we affirm his convictions for assault and

battery on a police officer and obstruction of justice.

                                                                                           Affirmed.

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