                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Moon *
Argued at Salem, Virginia


JEFFREY SCOTT WRIGHT
                                         MEMORANDUM OPINION** BY
v.   Record No. 2528-96-3                JUDGE SAM W. COLEMAN III
                                             DECEMBER 9, 1997
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                  J. Samuel Johnston, Jr., Judge
          Robert R. Feagans, Jr., for appellant.

          Daniel J. Munroe, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Jeffrey Scott Wright was convicted in a bench trial for

possession of LSD, a Schedule I controlled substance, in

violation of Code § 18.2-250.   On appeal, he contends that the

trial court erred by denying his motion to suppress the LSD that

was seized when he was arrested.   Specifically, Wright alleges

that because the arresting officer was beyond his territorial

jurisdiction the arrest was unlawful, and, therefore, the

evidence was illegally seized in the search incident to an

unlawful arrest.   We disagree and affirm the conviction.



     *
      When the case was argued Judge Moon presided. Judge
Fitzpatrick was elected Chief Judge effective November 19, 1997.
 Judge Moon participated in the hearing and decision of this case
prior to his retirement on November 25, 1997.
     **
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                            I.   BACKGROUND

     During roll call, Investigator Danny Viar of the Lynchburg

Police Department learned of an outstanding capias for the arrest

of Jeffrey Scott Wright for his having failed to appear in court.

Viar testified that he did not know from which jurisdiction the

capias had been issued or that the charge for failure to appear

was for a misdemeanor offense.

     Viar, who was familiar with Wright and his vehicle, spotted

Wright while driving through Campbell County.    Viar radioed the

Campbell County dispatcher to send an officer to serve the

capias.    In the meantime, Viar stopped the appellant's vehicle in

Campbell County, which was beyond Viar's jurisdictional limit in

the City of Lynchburg.
          Viar approached the appellant's vehicle, showed appellant

his badge and told the appellant that a Campbell County officer

was en route to arrest appellant on the capias.    Although Viar

did not physically restrain Wright, Viar told him to stay until

the Campbell County deputy arrived and that Wright was "not going

to leave."    Ten minutes after Viar stopped Wright, a Campbell

County officer arrived and arrested Wright.    In a search incident

to the arrest, the Campbell County officer found LSD in Wright's

pocket.

     At trial, Wright filed a motion to suppress the LSD

contending it was obtained in a search incident to an illegal

arrest.    The trial court found that although Investigator Viar



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had exceeded the scope of his jurisdiction as a Lynchburg police

officer by arresting Wright, Viar had legally arrested him as a

private citizen.    Accordingly, the trial court denied the motion

to suppress.    The correctness of that ruling is the issue before

us on appeal.

                            II.   ANALYSIS

      Investigator Viar's detention of the appellant was an arrest

and was not, as the Commonwealth argues, merely an investigative

stop. 1   Viar was not briefly detaining the appellant for the

purpose of conducting an investigation of suspected criminal

activity.    Rather, Viar had restricted Wright from leaving the

roadside, he had told Wright that he was not free to leave, and

that Wright had to remain there until the Campbell County deputy

arrived to formally take him into custody.      Under the

circumstances, a person of ordinary intelligence and

understanding would believe that he was not free to leave and

was, therefore, under "arrest."      See United States v. Mendenhall,

446 U.S. 544, 553-54 (1980); Castell v. Commonwealth, 21 Va. App.
78, 81-82, 461 S.E.2d 438, 439 (1995).       Accordingly, the trial

court did not err in holding that Viar had arrested Wright

without a warrant.    Thus, we must next determine whether Viar's
      1
      Because Viar's detention of Wright was an arrest, and not
an investigative stop, the decision in Layne v. Commonwealth, 15
Va. App. 23, 421 S.E.2d 215 (1992), does not apply to the case at
bar. See Layne, 15 Va. App. at 27, 421 S.E.2d at 217 ("An
officer need not possess the statutory authority to effect an
arrest . . . in order to effect a Terry-type detention to
investigate incipient criminal activity.").




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extraterritorial arrest of Wright would require the exclusion of

the evidence seized in the search incidental to such an arrest.

       Generally, an arresting officer may search an individual as

an incident to a lawful arrest.     DePriest v. Commonwealth, 4 Va.

App. 577, 583, 359 S.E.2d 540, 543 (1987).    If, however, the

arrest is illegal in that it violates federal constitutional

protections, any evidence seized from a search pursuant to such

arrest is subject to the exclusionary rule, as mandated by Mapp
v. Ohio, 367 U.S. 643 (1961).     See Penn v. Commonwealth, 13 Va.

App. 399, 406, 412 S.E.2d 189, 193 (1991), aff'd per curiam, 244

Va. 218, 420 S.E.2d 713 (1992).

       However, in Penn, we held that "[i]n the absence of any

deprivation of constitutional rights, an arrest in violation of

state statute does not require exclusion of any evidence obtained

as a result of the arrest."   13 Va. App. at 408, 412 S.E.2d at

194.   The exclusionary rule adopted in Mapp does not operate to

exclude evidence from an arrest that is statutorily defective,

but otherwise constitutionally valid, id. at 406-07, 412 S.E.2d
at 193, and the Virginia Supreme Court has rejected the

invitation to adopt a state exclusionary rule for arrests that

are constitutionally valid but which may violate a statutory

provision.    See Horne v. Commonwealth, 230 Va. 512, 519, 339

S.E.2d 186, 191 (1986).   Therefore, in this case, even if Viar's

arrest of Wright was "illegal" because he was a Lynchburg police

officer who had exceeded his authority to arrest in Campbell




                                - 4 -
County or a private citizen who had no authority to arrest for a

misdemeanor, the dispositive issue is whether Viar's arrest of

Wright violated any federal constitutional guarantees which the

exclusionary rule, as enunciated in Mapp, was designed to

protect.

     The Fourth Amendment does not prohibit the state or a police

officer from making a warrantless arrest or seizure of a person

provided that the state or officer has probable cause to believe

that a crime has been or is being committed.   See Thompson v.

Commonwealth, 10 Va. App. 117, 121, 390 S.E.2d 198, 201 (1990)

(citing United States v. Watson, 423 U.S. 411 (1976)).     A police

officer has probable cause to arrest if the officer "had

knowledge of sufficient facts and circumstances to warrant a

reasonable man in believing that an offense has been committed."

 DePriest, 4 Va. App. at 583, 359 S.E.2d at 543.

     Here, Investigator Viar had probable cause to arrest Wright

because he had learned at roll call that a capias for Wright's

arrest was outstanding, charging him with having failed to appear

in court.   The information provided Viar with sufficient facts to

reasonably believe that Wright had committed a criminal offense.

 Wright does not contest this.

     Wright asserts that the LSD was seized from him in a search

pursuant to an unlawful arrest because Viar exceeded his

jurisdictional authority under Code § 19.2-250. 2   However, that
     2
      Code § 19.2-250 provides that, in criminal cases involving
offenses against the Commonwealth, the jurisdiction of a city or



                                 - 5 -
claim of illegality as to the arrest does not involve a claim

that federal constitutional protections were violated which would

implicate the exclusionary rule.   Even if Investigator Viar

violated Code § 19.2-250 or exceeded the common law authority of

a private citizen in arresting Wright for a misdemeanor, he

nonetheless constitutionally detained Wright.    Under the holding

in Penn, the exclusionary rule does not apply.    Accordingly, the

trial court properly denied the appellant's motion to suppress

the evidence.
     For these reasons, we affirm the conviction.

                                                         Affirmed.




(..continued)
town "shall extend within the Commonwealth one mile beyond the
corporate limits of such town or city . . . ." See Hall v.
Commonwealth, 12 Va. App. 559, 563, 389 S.E.2d 921, 924 (1990)
(wherein we held that if an officer exceeds his statutory
authority, his arrest may nevertheless be lawful because an
officer retains the power as a private citizen to arrest an
accused); see also Moore v. Oliver, 347 F. Supp. 1313, 1316 (W.D.
Va. 1972) ("If [a police officer] acts outside the one mile area
from the city limits, his status is that of any other private
citizen.") (citing Alexandria v. McClary, 167 Va. 199, 203, 188
S.E. 158, 160 (1936)).




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