                   COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Senior Judge Overton
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 3383-02-4                 JUDGE ROBERT P. FRANK
                                              JUNE 10, 2003
CHARLES EDWARD HOOKS


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       R. Terrence Ney, Judge

           Eugene Murphy, Assistant Attorney General
           (Jerry W. Kilgore, Attorney General, on
           briefs), for appellant.

           Robert C. Whitestone (Whitestone, Brent,
           Young & Merril, on brief), for appellee.


     Charles Edward Hooks (appellee) was indicted for possession

of cocaine with the intent to distribute, in violation of Code

§ 18.2-248.   Appellee filed a pretrial motion to suppress the

statements he made to the police, alleging the statements were

obtained after an illegal seizure.   The trial court granted the

motion.   The Commonwealth appeals, contending the trial court

erred in granting the motion.   See Code § 19.2-398.     For the

reasons stated, we affirm the trial court's ruling.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                           BACKGROUND

     Pursuant to Rule 5A:8, the following statement of facts was

filed in lieu of a transcript:

          On March 21, 2002, officers of the Fairfax
          County Police Department Vice Squad were
          watching the defendant's home before
          executing a search warrant on the home.
          Police saw the defendant leave the house,
          get into his vehicle, and drive away. At
          8:10 p.m., several miles from his house,
          Officer S. R. Wallace, at the direction of a
          vice squad officer, stopped the defendant
          for driving on a suspended license.
          Defendant's license had been suspended by
          the Department of Motor Vehicles in early
          2002 for insurance monitoring.

          Shortly after the defendant was stopped he
          was issued a summons for driving on a
          suspended license and for having an open
          container in the vehicle. The defendant and
          his vehicle were searched and no drugs or
          weapons were found in defendant's vehicle or
          on his person. Then, instead of being
          released on the summonses, defendant was
          placed in handcuffs in the back of a police
          cruiser and transported to the Reston
          District Station for questioning.

          The search warrant here involved was
          executed at defendant's home at 8:35 p.m.
          At some time between 9:30 and 10:00 p.m. the
          defendant made incriminating statements.

          As justification for defendant's unlawful
          seizure, Detective J. A. Williams at the
          preliminary hearing testified ". . . the
          only way legally that we could hold him
          would be for investigative detention."
          Additional reasons for the seizure were
          given as "officer safety" and "exigent
          circumstances."

          There was no evidence that the police
          officer who issued a summons to the
          defendant for driving on [a] suspended

                                 - 2 -
          [license] believed that the defendant would
          not return to traffic court, nor was there
          any evidence that the defendant had at any
          time failed to appear in court. Moreover
          there was no suggestion nor was there
          evidence that the defendant was arrested
          because the police had probable cause to
          believe that the defendant committed prior
          drug related offenses.

     After argument and briefing, the trial court granted the

motion to suppress, finding the police "lacked probable cause and

any reasonable suspicion."   The court noted:

          After a summons has been issued to an
          individual, absent other circumstances –-
          none of which were present here –- he or she
          should be free to go. The Fairfax County
          Police lacked reasonable suspicion that
          Hooks was engaged in any illegal activity.
          Therefore, Hooks' [sic] detention was an
          illegal seizure and any statements made by
          Hooks while illegally detained must be
          suppressed.

                             ANALYSIS

     The Commonwealth contends appellee's Fourth Amendment rights

were not violated, arguing that an arrest which is unlawful under

Code § 19.2-74 does not necessarily equate with a violation of

appellee's constitutional rights. 1    Assuming this position is

correct, it misses the point of the trial court's ruling.

     On appeal, this Court reviews the evidence, and the

inferences fairly deducible from that evidence, in the light most

favorable to the party prevailing below.     Commonwealth v.

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

Although determinations of probable cause are reviewed de novo,




                               - 3 -
Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27

(2000), where the trial court has granted a motion to suppress,

that decision "will not be disturbed unless it is plainly wrong

or without evidence to support it."      Commonwealth v. Thomas, 23

Va. App. 598, 609, 478 S.E.2d 715, 720 (1996).

     Appellee was served with two summonses.     At that point, as

the trial court noted, all constitutional and statutory

requirements were satisfied, and the encounter should have ended

or continued voluntarily.   See United States v. Pruitt, 174 F.3d

1215, 1219-20 (11th Cir. 1999), limited by United States v.
Purcell, 236 F.3d 1274 (2001).     Instead, appellee was handcuffed

and taken to the police station.    This seizure, after the

issuance of the summonses, created a new Fourth Amendment issue.

     In Reittinger, for example, a driver was stopped for having

only one operable headlight on his van.     260 Va. at 234, 532

S.E.2d at 26.   While the officer legitimately stopped the van,

after he decided against issuing a citation and told the driver

that he was free to go, a new Fourth Amendment issue arose.       Id.

at 236-37, 532 S.E.2d at 27-28.    Once an officer has concluded

his investigation of the original violation, new reasonable

suspicion or probable cause must develop to allow an officer to

continue holding an individual.     See Thomas, 23 Va. App. at 613,

487 S.E.2d at 722 (noting the K-9 search unit arrived "before the

completion of the traffic stop" and police had additional bases

"to suspect criminal activity" beyond the reason for the initial

stop); Deer v. Commonwealth, 17 Va. App. 730, 736, 441 S.E.2d 33,

     1
       The Commonwealth does not argue that application of the
exclusionary rule to the statement was inappropriate if appellee
                                 - 4 -
37 (1994) ("[O]nce [the officer] had completed his investigation

and issued the citation, the continued detention of Deer and the

vehicle required additional justification to satisfy the

requirements of the Fourth Amendment.").

     In Deer, this Court found a driver was illegally seized

under circumstances similar to those in the present case.      The

officer issued a summons to Deer, concluding his investigation of

the traffic offense.   Id.    However, when Deer refused to allow a

search of his vehicle, the officer "effected a seizure by stating

that he would detain the vehicle for up to an hour to await the

arrival of a K-9 unit."      Id.   With nothing more than an inchoate

hunch, the officer seized Deer.       Id.

     As the trial court here explained, nothing during the

traffic stop provided Officer Wallace with additional reasonable

suspicion or probable cause. 2     The Commonwealth does not contend

that additional investigation into the traffic offense was

required or appropriate, but instead argues that the original

probable cause survived the issuance of the summonses.      The

Commonwealth contends Deer is distinguishable because Officer
Wallace always intended to detain appellee, whereas the officer

in Deer initially intended to release Deer.      Neither the facts

nor the analysis in Deer support such a distinction, which




was unconstitutionally seized.
     2
       The Commonwealth does not argue that any of the facts
surrounding the issuance and execution of the search warrant for
appellee's house provided the police with enough information to
seize appellee. The search warrant is not part of the record on
appeal.

                                   - 5 -
emphasized the conclusion of the initial detention with the

issuance of a citation.     Id.

     The Commonwealth also argues that Atwater v. City of Lago

Vista, 532 U.S. 318 (2001), controls.     However, Atwater is

distinguishable on its facts.     In Atwater, the defendant was

stopped for a minor traffic offense, punishable by a fine only.

Id. at 323.    The police officer immediately arrested Atwater

under a Texas law that specifically authorized arrest for this

particular traffic offense, although the law also permitted the

issuance of a citation in lieu of arrest.       Id. at 323-24.   The

issue before the Supreme Court was whether the Fourth Amendment

limits a police officer's authority to arrest without a warrant

for minor criminal offenses.      Id. at 326.   The Supreme Court

concluded such an arrest is not a violation of the Fourth

Amendment.    Id. at 354.

     The Atwater Court was not confronted with a post-issuance of

summons detention.   Atwater was not issued a citation and then

arrested.    Therefore, the opinion does not address the

circumstances before this Court.

     While Officer Wallace initially had probable cause to stop

appellee for a traffic violation, he concluded that detention

when he issued the summonses.     Thus, he did not have reasonable

suspicion or probable cause to continue his seizure of appellee.

The seizure, therefore, violated the principles of the Fourth

Amendment, and the statement given while appellee was held

constituted "fruit of the poisonous tree."       See Walls v.

Commonwealth, 2 Va. App. 639, 651, 347 S.E.2d 175, 182 (1986).


                                  - 6 -
     We affirm the trial court's grant of the motion to suppress

and remand for further proceedings consistent with this opinion.

                                           Affirmed and remanded.




                              - 7 -
