                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judge Elder and Senior Judge Willis
Argued at Chesapeake, Virginia


WILLIAM BILL CLARK
                                                                MEMORANDUM OPINION * BY
v.     Record No. 0946-10-1                                       JUDGE LARRY G. ELDER
                                                                    SEPTEMBER 20, 2011
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                               Christopher W. Hutton, Judge 1

                 John E. Robins, Jr. (Office of the Public Defender, on brief), for
                 appellant.

                 Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli,
                 II, Attorney General, on brief), for appellee.


       William Bill Clark (appellant) appeals from his bench trial convictions for robbery, Code

§ 18.2-58; use of a firearm in the commission of robbery, Code § 18.2-53.1; wearing a mask in

public, Code § 18.2-422; and breaking and entering while armed, Code § 18.2-91. On appeal, he

contends police had neither reasonable suspicion to detain him nor probable cause to arrest. He

contends further that the arresting officer’s trial testimony conflicted with her testimony at the

suppression hearing and, thus, provided insufficient credible evidence to support the

investigative detention. As a result, he argues, the trial court erred in denying both his pre-trial

motion to suppress and his renewed motion, made at the close of the Commonwealth’s evidence

at trial. We hold the evidence was sufficient to support a finding that the police developed, first,



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Judge Bonnie L. Jones ruled on appellant’s pre-trial motion to suppress. Judge Hutton
presided over appellant’s trial, including the renewal of his motion to suppress, and sentencing.
reasonable suspicion for the detention and, then, probable cause for appellant’s arrest. Thus, we

affirm the challenged convictions. 2

        In reviewing the denial of a pre-trial motion to suppress, we consider the evidence

adduced at both the suppression hearing and at trial to determine whether the denial of the

motion was error. Rodriguez v. Commonwealth, 40 Va. App. 144, 149 n.1, 578 S.E.2d 78, 80

n.1 (2003). We view the evidence in the light most favorable to the prevailing party, here the

Commonwealth, granting to the evidence all reasonable inferences fairly deducible therefrom.

Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). “[T]he trial court,

acting as fact finder [on the suppression issue], must evaluate the credibility of the witnesses . . .

and resolve the conflicts in their testimony . . . .” Witt v. Commonwealth, 215 Va. 670, 674, 212

S.E.2d 293, 297 (1975); see Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d

258, 259 (1989) (“It is firmly imbedded in the law of Virginia that the credibility of a witness

who makes inconsistent statements on the stand is a question . . . for the . . . [trier of the facts]

. . . .”). “[W]e are bound by the trial court’s findings of historical fact unless ‘plainly wrong’ or

without evidence to support them,” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d

259, 261 (1997) (en banc), whereas we review de novo the application of defined legal standards,

such as whether reasonable suspicion or probable cause supported a seizure, Ornelas v. United

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911, 920 (1996).

        Fourth Amendment jurisprudence recognizes three categories of police-citizen contact:

“(1) consensual encounters, (2) brief, minimally intrusive . . . Terry stops, and (3) highly

intrusive arrests and searches founded on probable cause.” Wechsler v. Commonwealth, 20


        2
         Appellant presents a third assignment of error challenging the sufficiency of the
evidence to support his conviction assuming his motion to suppress was improperly denied.
Because we hold the trial court’s refusal to suppress the evidence was not error, we do not reach
appellant’s third assignment of error.

                                                  -2-
Va. App. 162, 169, 455 S.E.2d 744, 747 (1995) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,

20 L. Ed. 2d 889 (1968)). “A seizure occurs when an individual is either physically restrained or

has submitted to a show of authority” under circumstances in which “a reasonable person would

have believed that he or she was not free to leave.” McGee, 25 Va. App. at 199-200, 487 S.E.2d

at 262.

          An officer may effect an investigatory detention if he becomes aware of facts that “lead[]

him reasonably to conclude in light of his experience that criminal activity may be afoot” and

that the person he detains is or was involved in it. Terry, 392 U.S. at 30, 88 S. Ct. at 1884, 20

L. Ed. 2d at 911. Reasonable suspicion “need not rule out the possibility of innocent conduct.”

United States v. Arvizu, 534 U.S. 266, 277, 122 S. Ct. 744, 753, 151 L. Ed. 2d 740, 752 (2002).

Whether an officer has reasonable suspicion for a Terry stop is based on an assessment of the

totality of the circumstances, “which includes ‘the content of information possessed by police

and its degree of reliability,’ i.e.[,] ‘quantity and quality.’” Jackson, 267 Va. at 673, 594 S.E.2d

at 599 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301,

309 (1990)). An officer who develops such reasonable suspicion concerning a person may stop

that person “in order to identify him, to question him briefly, or to detain him briefly while

attempting to obtain additional information” in order to confirm or dispel his suspicions. Hayes

v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705, 711 (1985).

          Probable cause, although requiring a higher quantum of evidence than reasonable

suspicion, nevertheless

                 relates to probabilities that are based upon the factual and practical
                 considerations in everyday life as perceived by reasonable and
                 prudent persons . . . . [P]robable 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.

                                                  -3-
Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981). “‘The substance of all

the definitions of probable cause is a reasonable ground for belief of guilt. And this means less

than evidence which would justify condemnation or conviction.’” Slayton v. Commonwealth, 41

Va. App. 101, 107, 582 S.E.2d 448, 451 (2003) (quoting Brinegar v. United States, 338 U.S. 160,

175, 69 S. Ct. 1302, 1310, 93 L. Ed. 2d 1879, 1890 (1949) (citations and internal quotation

marks omitted)). Thus, evidence sufficient to provide probable cause to arrest for a crime need

not be evidence sufficient to convict for that offense. Id.

       Finally, we evaluate the existence of reasonable suspicion and probable cause under a

standard of objective reasonableness: “An action is ‘reasonable’ under the Fourth Amendment,

regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed

objectively, justify [the] action.’ The officer’s subjective motivation is irrelevant.” Brigham

City v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650, 658 (2006) (quoting

Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168, 178 (1978)).

       Appellant concedes that Officer Partlow’s initial encounter with him was consensual.

However, he contends that his placement in the back seat of the police car constituted an arrest

for which probable cause was required and that police had neither probable cause nor reasonable

suspicion to effect such a seizure at that time. We hold the evidence supports the trial court’s

rulings to the contrary.

       First, the evidence supports the conclusion that appellant had merely been detained, not

arrested, when Officer Partlow put him in the police car. Lawson v. Commonwealth, 55

Va. App. 549, 559, 687 S.E.2d 94, 99 (2010) (upholding Terry detention in police car while

awaiting arrival of canine). Even “[b]rief, complete deprivations of a suspect’s liberty, including

handcuffing, ‘do not convert [a Terry stop] into an arrest so long as the methods of restraint used

are reasonable to the circumstances.’” Thomas v. Commonwealth, 16 Va. App. 851, 857, 434

                                                -4-
S.E.2d 319, 323 (1993) (quoting United States v. Crittendon, 883 F.2d 326, 329 (4th Cir. 1989)),

aff’d on reh’g en banc, 18 Va. App. 454, 444 S.E.2d 275 (1994).

       Further, the evidence, viewed objectively in the light most favorable to the

Commonwealth, supports a finding that, at the time of the seizure, reasonable suspicion existed

to believe appellant may have been involved in a crime. When Officer Partlow first approached

appellant at 10:26 p.m., she engaged him in a consensual encounter that lasted seven minutes.

Partlow knew when she began the encounter that appellant was walking away from the general

vicinity in which a restaurant robbery had occurred a few minutes earlier. She also knew he fit

the robbers’ general description in that he was of the same race and was wearing dark clothing.

       When Officer Partlow spoke to appellant concerning his presence in the area, he admitted

he had just come from the shopping center in which the robbery had occurred, although he

claimed to have been at the nearby convenience store rather than at the restaurant. Appellant

also claimed to have walked only on the sidewalk, but his shoes had water droplets, grass, and

mud on them, supporting the inference that he had not been honest about the path he had taken.

He also had sweat on his brow despite the fact that “it was very cold out.” Further, appellant

claimed to have gone to the convenience store to use the phone to call his girlfriend, with whom

he said he had had an argument, but Officer Partlow had observed appellant carrying and talking

on a cell phone immediately before she approached him on the street, suggesting he was not

being truthful about his phone and the reason for his trip to the shopping center. When Officer

Partlow asked appellant about this inconsistency, he claimed he had run out of minutes on his

cell phone and had held it up while walking down the street because he was talking to himself

and did not want to look foolish. He also made inconsistent statements to Officer Partlow about

whether the disagreement he claimed to have had with his girlfriend had occurred during the

phone call from the convenience store or in person earlier in the day.

                                               -5-
       It was against this backdrop that Officer Partlow acquired the more specific information

in the updated “be-on-the-lookout” alert (BOL) at 10:33 p.m. That BOL included information

that the first suspect was “shorter,” “[a]pproximately five foot two to five foot seven,” “[a]

hundred and twenty to a hundred and forty pounds,” and was “last seen wearing a dark hooded

sweatshirt, dark jeans that were faded in the front and back,” and “black shoes.” Officer Partlow

noted appellant, like the description of the shorter suspect, had on black shoes and dark faded

jeans. Further, the judge who ruled on appellant’s pre-trial motion to suppress found the BOL’s

description of the height, size, and weight of the robbers supported the investigatory seizure.

Implicit in this finding is that appellant generally matched the height, size, and weight of the

smaller perpetrator. This evidence, coupled with the fact that appellant appeared to have been

running through the grass from the area where the robbery occurred but lied about it when

questioned, provided reasonable suspicion for the stop.

       Once the seizure had occurred, the officers worked to confirm or dispel the suspicions

supporting the detention. Within minutes of the 10:33 p.m. seizure, Detectives Felder and Mayer

arrived with a witness who had seen a man behind the business shortly after the robbery.

Appellant was removed from the car for a show-up, but the witness said appellant was not the

person she saw. Appellant was then allowed to smoke a cigarette before reentering the vehicle.

       At 10:42 p.m., less than ten minutes after appellant’s detention had begun, Officer Boyd

and his canine, Falco, arrived on the scene. At 10:19 p.m., Boyd and Falco had started near the

scene of the robbery and tracked the “freshest” scent based on “where the suspect was last seen.”

They started from “the corner of [the restaurant],” adjacent to the laundromat next door, and after

winding through some condominiums and the grassy area around a school, during which they

found several dollar bills and a black sweatshirt, Falco reached the location where appellant was




                                                -6-
being detained. Falco alerted on appellant’s portion of the police car by pawing the door and

window, indicating appellant was the person whose scent he had tracked from the scene.

       In sum, the robbers fled the restaurant at 10:12 p.m., and Officer Partlow engaged

appellant in a consensual encounter fourteen minutes later, at 10:26 p.m., about one mile from

the restaurant. Seven minutes after that, at 10:33 p.m., Officer Partlow converted that encounter

into an investigative detention based upon her receipt of a further description of the robbers,

which appellant met. Nine minutes later, at 10:42 p.m., Officer Boyd and canine Falco, who

tracked the freshest scent from the restaurant and found money and discarded clothing along the

way, arrived at the scene of the detention. Falco immediately alerted on the door of the police

car through which appellant had entered, pawing at the door and window. Thus, by 10:42 p.m., a

mere thirty minutes after the robbers fled the restaurant, the evidence, viewed objectively,

provided probable cause for appellant’s arrest. See Noell v. Angle, 217 Va. 656, 662-63, 231

S.E.2d 330, 334-35 (1977) (in a malicious prosecution case, relying on a police dog’s tracking

from the crime scene to the criminal defendant’s front door to hold probable cause existed to

charge the defendant with the crime).

       Due to the objective nature of the Fourth Amendment reasonableness standard, the fact

that the officers did not formally arrest appellant until 11:48 p.m. is not dispositive. “Law

enforcement officers are under no constitutional duty to call a halt to a criminal investigation the

moment they have the minimum evidence to establish probable cause, a quantum of evidence

which may fall far short of the amount necessary to support a criminal conviction.” Hoffa v.

United States, 385 U.S. 293, 310, 87 S. Ct. 408, 417, 17 L. Ed. 2d 374, 386 (1966).

       Finally, even if the evidence that police had gathered by 10:42 p.m. was insufficient to

provide probable cause for arrest, the officers continued their investigation, and as soon as

Detective Mayer returned to the restaurant and viewed the surveillance video of the robbery, he

                                                -7-
was able to identify the “very distinctive” faded jeans he had just seen on appellant as the same

jeans worn by the shorter of the two robbers in the video. The court heard Detective Mayer’s

specific testimony describing the jeans and also had an opportunity to examine the jeans before

making its factual finding about their distinctive nature. Thus, the evidence supports the finding

that when Detective Mayer radioed the “supervisors out by [appellant] . . . to go ahead and place

him in custody,” the totality of the circumstances, viewed objectively, including Detective

Mayer’s observations about the jeans, provided probable cause for that arrest. When the arrest

occurred at 11:48 p.m., appellant had been in custody for one hour fifteen minutes, during which

the police (a) uncovered no evidence that dispelled their suspicions about appellant and

(b) continued to gather evidence contributing to the establishment of probable cause. See United

States v. Sharpe, 470 U.S. 675, 685-86, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605, 615 (1985)

(declining to adopt a “hard-and-fast time limit for a permissible Terry stop” in favor of allowing

“common sense and ordinary human experience [to] govern over rigid criteria”); Lawson, 55

Va. App. at 559, 687 S.E.2d at 98 (holding “police diligently pursued their investigation of

Lawson’s vehicle for narcotics by dispatching the canine unit to the scene within twenty to

twenty-five minutes”); Limonja v. Commonwealth, 8 Va. App. 532, 544, 383 S.E.2d 476, 483

(1989) (en banc) (holding that detaining the defendant for twenty-two minutes while waiting for

a drug canine to arrive did not exceed the bounds of a reasonable Terry stop and noting other

courts had upheld detentions of up to seventy-five minutes under similar circumstances), cited

with approval in Lawson, 55 Va. App. at 558-59, 687 S.E.2d at 98.

       For these reasons, we hold the evidence supports the denial of appellant’s motion to

suppress. Accordingly, we affirm appellant’s convictions.

                                                                                           Affirmed.




                                               -8-
