                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Alston and Senior Judge Haley
UNPUBLISHED


              Argued by teleconference


              COMMONWEALTH OF VIRGINIA
                                                                                           MEMORANDUM OPINION BY
              v.            Record No. 0376-16-2                                           JUDGE ROSSIE D. ALSTON, JR.
                                                                                                AUGUST 23, 2016
              STEPHEN ALLEN DONALD AND
               DEOCLECIO RONAN SAMPAIO


                                            FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                                                           Sarah L. Deneke, Judge

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

                                           Christopher M. Reyes (Spencer, Meyer, Koch & Cornick, P.L.C.;
                                           on brief), for appellee Stephen Allen Donald.

                                           Timothy W. Barbrow for appellee Deoclecio Ronan Sampaid.


                            Pursuant to Code § 19.2-398(A)(2), the Commonwealth appeals the trial court’s decision

              to grant appellees Stephen Allen Donald’s and Deoclecio Ronan Sampaio’s motions to suppress

              the Commonwealth’s evidence obtained after they were stopped for an alleged violation of Code

              § 46.2-923, the jaywalking statute. The Commonwealth argues that the trial court erred in ruling

              that pedestrians are not required by Code § 46.2-923 to cross a highway at an intersection

              wherever possible, and granting appellees’ motions to suppress the evidence on that basis. We

              disagree and therefore, affirm the trial court’s decision to grant appellees’ motions to suppress.




                                                                          
                            
                              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                               I. Background

              On October 19, 2015, appellees were indicted on one charge each of gang participation in

violation of Code § 18.2-46.2 and possession of a firearm by a convicted felon in violation of

Code § 18.2-308.2. The indictments stemmed from their arrest on June 23, 2015, after they were

stopped when they allegedly jaywalked across U.S. Highway 1 in Spotsylvania County. That

day, Spotsylvania County Sheriff’s Deputies Harris and Tillman saw appellees walking

northbound on the southbound side of Jefferson Davis Highway (U.S. Highway 1) near the

Motel 6 located at 5308 Jefferson Davis Highway in Spotsylvania County. The deputies were

running interdiction in the high-crime area and driving southbound on Jefferson Davis Highway

at the time. Harris and Tillman initially took interest in appellees as they passed, in part because

of their facial tattoos.1 The deputies then saw appellees take a few steps into the street, preparing

to cross. At that time, the deputies crested a slight hill near the Motel 6 parking lot and lost sight

of appellees for about thirty seconds. Harris and Tillman then turned around and headed back to

intercept appellees. Appellees had crossed from the southbound to the northbound side of the

street, where there was neither an intersection nor marked crosswalk, and entered the Motel 6

parking lot. The nearest intersection was approximately one-tenth of a mile away at Mine Road,

and the stoplight was visible from where appellees crossed U.S. Highway 1. There is not,

however, a crosswalk at the Mine Road intersection.

              The deputies located appellees in the parking lot of the Motel 6, asked appellees to come

over, and appellees complied. Harris and Tillman told appellees that they had stopped them

because of the manner in which they crossed Jefferson Davis Highway. The deputies asked


                                                            
              1
        There is nothing in the record to suggest that the facial tattoos in and of themselves
suggested any criminal activity. In its ruling, the trial court noted that it didn’t know “if there’s
anything in those tattoos that indicate gangs or prior prison sentences or whether it’s just that
people with a lot of facial tattoos are somebody that the police want to talk to.”
                                                       -2-
appellees for their names and dates of birth, which they provided. After running checks on

appellees, Harris and Tillman discovered that they each had outstanding warrants. The deputies

then arrested appellees and found a Glock 17C firearm in Donald’s backpack. Appellees were

both charged with possession of a gun by a convicted felon and participation in gang activity.

Neither was cited for jaywalking.

       Appellees moved to suppress and exclude evidence obtained as a result of their unlawful

detention, the subsequent unlawful search of Donald’s backpack, and verification of appellees’

identities since they were not known by Harris and Tillman at the time of the stop. Making

particular reference to the framework of the jaywalking statute, appellees argued in their motions

that there were no signs restricting them from crossing U.S. Highway 1 at the location where

they did on June 23, 2015, and that there was no crosswalk in the area where they crossed. Thus,

appellees argued that there was no reasonable suspicion of any ongoing criminal activity

justifying law enforcement to seize appellees, detain them, search Donald’s backpack, and elicit

incriminating statements from Sampaio.

       The trial court held a hearing on appellees’ motions to suppress on March 1, 2016. The

Commonwealth proffered its evidence as described above without objection. Photographs of

U.S. Highway 1, the Motel 6 parking lot, and the general area were introduced into evidence

without objection. The Commonwealth noted that near where appellees crossed the street, there

is a slight crest over which the deputies drove, which makes it difficult for pedestrians to be seen

by northbound traffic. There had been a number of traffic incidents where pedestrians

attempting to cross the street near where appellees did were struck by vehicles. Further, the

Commonwealth highlighted the fact that the intersection at Jefferson Davis Highway and Mine

Road/Hood Drive is visible from where appellees crossed. Deputy Tillman briefly testified and

stated that he did not observe appellees interfere with any traffic at the time he saw them begin to
                                                      -3-
cross U.S. Highway 1. The Commonwealth argued that because there was an intersection in

sight of where appellees crossed U.S. Highway 1 and appellees did not cross at the intersection,

Harris and Tillman had reason to believe that appellees violated the jaywalking statute.

       After considering the evidence and arguments presented, the trial court ruled that the

deputies did not have reasonable articulable suspicion to stop appellees. The trial court stated

that it didn’t “think there’s any question” that the deputies wanted to talk to appellees because of

their facial tattoos. The court went on to say that “the situation is very clear, officers driving

down the road see two guys walking down the road that they really want to stop and talk to, but

they don’t have any reason to stop and talk to them. And so they continue on past them.” The

trial court went on to say that it didn’t “think there’s any question that [the reason for the stop

was] a pretext. There’s no question that the officers didn’t really want to tell them to be careful

crossing the road. They wanted to talk to these two guys, but that’s okay too.” While the trial

court pointed out that while pretextual stops have been upheld by courts, there still has to be a

valid reason that justifies the stop. The court found that

               There is absolutely no testimony that there was any interference in
               traffic, that there was any malicious or careless interference with
               the orderly passage of vehicles. The only violation, if at all, that
               the officers could even begin to discuss with these individuals is
               crossing not at a crosswalk or an intersection, and that’s not a
               violation of the law, plain and simple.

The trial court held that it was not reasonable for the officers to make a stop purely based on

appellees failing to cross at an intersection when there was no interference with traffic. Most

significantly, the trial court also concluded that from the facts presented there was no reasonable

interpretation of Code § 46.2-923 which would have given Harris and Tillman reasonable

suspicion to stop appellees for crossing where they did.




                                                       -4-
                                            II. Analysis

       “‘Ultimate questions of reasonable suspicion and probable cause to make a warrantless

search’ involve questions of both law and fact and are reviewed de novo on appeal.” McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas

v. United States, 517 U.S. 690, 691 (1996)). In reviewing the issues on appeal, this Court is

“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.” Id. at 198, 487 S.E.2d at 261 (citing Ornelas, 517

U.S. at 699).

       The Supreme Court of the United States has held that “a police officer may, without

violating the Fourth Amendment, make a brief investigatory stop of a person when the officer

has reasonable suspicion, based on objective facts, that criminal activity may be afoot.” Mason

v. Commonwealth, 291 Va. 362, 367, 786 S.E.2d 148, 151 (2016) (citing Terry v. Ohio, 392 U.S.

1, 30 (1968)). “While limited in its purpose and length, an investigative stop . . . constitutes a

seizure within the meaning of the Fourth Amendment.” Id. (quoting Sidney v. Commonwealth,

280 Va. 517, 522, 702 S.E.2d 124, 127-28 (2010)). “[T]o justify this type of seizure, officers

need only ‘reasonable suspicion’ – that is, ‘a particularized and objective basis for suspecting the

particular person stopped’ of breaking the law.” Heien v. North Carolina, 135 S. Ct. 530, 536

(2014) (quoting Navarette v. California, 134 S. Ct. 1683, 1688 (2014)). “Reasonable suspicion

arises from the combination of an officer’s understanding of the facts and his understanding of

the relevant law. The officer may be reasonably mistaken on either ground.” Id. “The limit is

that ‘the mistakes must be those of reasonable men.’” Id. (quoting Brinegar v. United States, 338

U.S. 160, 176 (1949)).



                                                      -5-
       Code § 46.2-923 provides, in relevant part:

                       When crossing highways, pedestrians shall not carelessly or
               maliciously interfere with the orderly passage of vehicles. They
               shall cross, wherever possible, only at intersections or marked
               crosswalks. Where intersections contain no marked crosswalks,
               pedestrians shall not be guilty of negligence as a matter of law for
               crossing at any such intersection or between intersections when
               crossing by the most direct route.

A violation of Code § 46.2-923 is a misdemeanor. See Code § 46.2-937. “Under

well-established principles, an issue of statutory interpretation is a pure question of law which

we review de novo.” JSR Mech., Inc. v. Aireco Supply, Inc., 291 Va. 377, 383, 786 S.E.2d 144,

146 (2016) (quoting Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639

S.E.2d 174, 178 (2007)). “When the language of a statute is unambiguous, [this Court] is bound

by its plain meaning.” Id. “In interpreting [a] statute, courts apply the plain meaning . . . unless

the terms are ambiguous or applying the plain language would lead to an absurd result.” Id.

(quoting Baker v. Commonwealth, 284 Va. 572, 576, 733 S.E.2d 642, 644 (2012)).

       Neither party argues, nor do we find that Code § 46.2-923 is ambiguous. From the plain

language of the statute, there are two ways in which a person may violate its provisions: By

carelessly or maliciously interfering with the orderly passage of vehicles when crossing a

highway, or by failing to cross at an intersection or marked crosswalk where it is possible to do

so. The last sentence of Code § 46.2-923 has direct application in this case as the undisputed

facts show that there was an intersection approximately a tenth of a mile from where appellees

crossed U.S. Highway 1, however the intersection did not have a crosswalk. Therefore,

according to Code § 46.2-923, appellees were not negligent in crossing between intersections, so




                                                      -6-
long as the route they took was the most direct. The Commonwealth does not challenge this

factual circumstance.2

              The ultimate question before us is whether Harris and Tillman had reasonable suspicion

that appellees violated Code § 46.2-923 when they witnessed appellees take a few steps onto

U.S. Highway 1 at neither a crosswalk nor an intersection, based on an objectively reasonable (if

incorrect) interpretation of Code § 46.2-923.3 See Heien, 135 S. Ct. at 536. The trial court made

clear and explicit findings that Harris and Tillman did not have reasonable suspicion to stop

appellees based on a suspected pedestrian traffic violation.4 The trial court stated “simply

crossing not at an intersection is not a violation of the law, and so an officer – it’s not reasonable



                                                            
              2
          Neither this Court nor the Supreme Court has interpreted Code § 46.2-923 outside of the
civil context. In Schutt v. Brockwell, 214 Va. 38, 196 S.E.2d 921 (1973), the Supreme Court
held in part that the plaintiff, who was struck by a vehicle when crossing between intersections
and seeking damages, was not in violation of Code § 46.1-230(a) because there were no marked
crosswalks for pedestrians in the area where he crossed the highway. Id. at 40, 196 S.E.2d at
924. The predecessor statute to Code § 46.2-923, Code § 46.1-230(a) provided in part that
pedestrians “shall cross wherever possible only at intersections, but where intersections of streets
contain no marked crosswalks pedestrians shall not be guilty of negligence as a matter of law for
failure to cross at said intersection.”
              3
          Appellees each raise preservation issues, albeit on distinct grounds. We find that the
Commonwealth sufficiently preserved its appeal because it stated its grounds for its
disagreement with the trial court’s interpretation of Code § 46.2-923 in its argument against
appellees’ motions to suppress. Further, though the assignment of error does not specifically
state the phrase “reasonable suspicion,” it clearly challenges the trial court’s ruling on appellees’
motions to suppress in their entirety. Therefore, the assignment of error sufficiently encapsulates
a challenge to the trial court’s ruling regarding Code § 46.2-923 and its subsequent determination
that the officers did not have reasonable suspicion to stop appellees. Therefore, we address the
merits of the Commonwealth’s appeal.
              4
         Specifically, the trial court stated that it did not “think there’s any question that [Harris
and Tillman stopping appellees for a suspected violation of Code § 46.2-923 was a] pretext.”
While pretextual stops have been upheld by courts as valid reasons that support constitutionally
permissible stops of individuals, we need not address the significance or legality of the pretextual
nature of the stop as the trial court found that there was no factual justification for the officers to
stop appellees in this case.

                                                               -7-
is what I will say for an officer to make a stop purely on those grounds.”5 We will not disturb

the trial court’s factual assessment of the circumstances regarding where and why Harris and

Tillman stopped appellees. Further, because we find Code § 46.2-923 to be clear and

unambiguous; we cannot conclude that the trial court made an error of law in its assessment that

Harris and Tillman did not have reasonable suspicion to stop appellees for a suspected

jaywalking violation. Therefore, we affirm the trial court’s decision to grant appellees’ motions

to suppress.6

                                                                                           Affirmed.




                                                            
              5
         We also note that to the extent the Commonwealth argues that the second sentence in
Code § 46.2-923 applies because it was “possible” for appellees to cross the highway at the Mine
Road intersection approximately one-tenth of a mile away, we disagree that would be either a
reasonable expectation of pedestrians or necessary to comply with the statute. It is not
reasonable for pedestrians to be expected to walk one-tenth of a mile out of the way to cross at a
congested intersection with no crosswalk where approximately twenty lanes of traffic meet, and
then walk one-tenth of a mile back to their destination. Such inconvenience and risk is not
required by the statute and is unreasonable.
              6
         The Commonwealth argues on appeal that Heien applies in the present case, however
the Commonwealth did not cite Heien to the trial court, and consequently, the trial court never
had an opportunity to rule on its applicability to the facts of this case. Therefore, we decline to
do so on appeal.
                                                       -8-
