                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Felton and McClanahan
Argued at Salem, Virginia


CARL LAMONT ELDER, IV
                                                         MEMORANDUM OPINION∗ BY
v.     Record No. 2417-03-3                           JUDGE ELIZABETH A. McCLANAHAN
                                                             NOVEMBER 2, 2004
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                               Joseph W. Milam, Jr., Judge

                 Mark T. Williams (Williams, Morrison, Light and Moreau, on
                 brief), for appellant.

                 Deana A. Malek, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       Carl Lamont Elder appeals his convictions for possession of cocaine with intent to

distribute and possession of marijuana in violation of Code §§ 18.2-248 and 18.2-250.1. Elder

contends that the trial court erred in denying his motion to suppress the evidence based on an

illegal detention and search of his vehicle. For the reasons that follow, we affirm.

                                        I. BACKGROUND

       When addressing an allegation of error from a ruling on a motion to suppress, we review

the evidence in the light most favorable to the party prevailing below, together with all

reasonable inferences that may be drawn. See Smith v. Commonwealth, 41 Va. App. 704, 712,

589 S.E.2d 17, 21 (2003). So viewed, the evidence at trial showed that on March 22, 2003,

police officers Ricky Luck and Stuart Yeaman received information that a man had been selling

narcotics out of a gold-colored car in the area of North Main Street in Danville. The officers


       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
were further informed that the car was in the area of Jefferson Street when they received the tip.

Being in that area, the officers responded by making their way to Jefferson Street, where they

observed a vehicle matching the description of the car. The officers noticed that the vehicle had

a Virginia license plate that was covered by tinted material. Because of the tinting over the

license plate, the officers were unable to read the license plate number from approximately thirty

feet away.

       The officers activated the police car’s emergency lights while behind the appellant’s

vehicle and followed the appellant’s vehicle into a hospital parking lot. Once stopped, Luck

approached the car and requested appellant’s driver’s license, which he produced. Observing a

minor child in the car, Luck asked appellant to get out of the vehicle because he did not want to

discuss the drug tip in front of the child. Appellant asked why he was being stopped and refused

to step out of the car. Luck testified that he explained to appellant that he was stopped because

of the tinted material covering the license plate and because Luck had received information that

appellant was selling drugs out of the car. After appellant continued to question why he was

being stopped and asked to step out of his vehicle, Luck again ordered appellant to step out of

the car and told him that he “could search the vehicle.”

       Once appellant heard Luck say that he could search the vehicle, he attempted to start the

vehicle’s ignition. Luck reached in the window to stop appellant from starting the ignition, and

told appellant that he was under arrest for attempting to leave. Appellant raised the driver’s side

window on Luck, trapping him in the door frame. Luck was able to force the window back

down, at which time Yeaman came to Luck’s aid. Yeaman sprayed mace at appellant so he

could disable appellant, open the driver’s side door and remove appellant from the vehicle.

       After appellant was placed under arrest and handcuffed, Luck inventoried appellant’s

vehicle before it was towed. Luck discovered 20.2 grams of marijuana in the center console

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between the front seats of the vehicle. Further, a search of appellant’s person incident to arrest

yielded 9.37 grams of cocaine and 3.5 grams of marijuana.

                                          II. ANALYSIS

       Appellant argues that Luck’s statement that he could search the vehicle exceeded the

legitimate scope allowed during an issuance of a traffic summons. He contends that the search

after the statement was illegal and any evidence thereby found must be suppressed. This Court

has held that, “‘when the police stop a motor vehicle and detain an occupant, this constitutes a

seizure of the person for Fourth Amendment purposes, even though the function of the stop is

limited and the detention brief.’” Logan v. Commonwealth, 19 Va. App. 437, 441, 452 S.E.2d

364, 367 (1994) (quoting Zimmerman v. Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709

(1988)). “‘A defendant’s claim that evidence was seized in violation of the Fourth Amendment

presents a mixed question of law and fact that we review de novo on appeal.’” Jarrett v.

Commonwealth, 42 Va. App. 702, 711-12, 594 S.E.2d 295, 300 (2004) (quoting Ornelas v.

United States, 517 U.S. 690, 691 (1996)).

       Appellant concedes that the tinted cover over his license plate provided Luck a legitimate

purpose for stopping appellant’s vehicle. Appellant also concedes that Luck’s actions were in

accordance with a proper traffic stop, until he told appellant that he could search the vehicle.

Appellant asserts that the detention became illegal when Luck told him he could search the

vehicle and, thus, the evidence acquired from the search should have been suppressed.

       Appellant asks this Court to compare Harris v. Commonwealth, 266 Va. 28, 581 S.E.2d

206 (2003), and Dickerson v. Commonwealth, 266 Va. 14, 581 S.E.2d 195 (2003), to this case.

However, neither Harris nor Dickerson are applicable. In both those cases, the factual situation

centered on whether the detention for the traffic violation had concluded and whether the citizen

was informed that the detention had concluded. Harris, 266 Va. at 38, 581 S.E.2d at 209-10;

                                                -3-
Dickerson, 266 Va. at 19, 581 S.E.2d at 198. In the case at bar, Luck was in the process of

obtaining information from appellant in order to issue a summons when appellant attempted to

flee the scene.

       Appellant also relies on Lovelace v. Commonwealth, 258 Va. 588, 522 S.E.2d 856

(1999), for the proposition that a search is unlawful in a routine traffic stop where an officer can

only issue a summons and release the defendant. Lovelace does not apply here because no

search of appellant’s vehicle or person was effected prior to appellant attempting to leave the

scene. Although Luck could not have searched defendant’s vehicle based solely upon the traffic

violation, appellant’s attempt to flee constituted a new offense for which Luck had probable

cause to effect a custodial arrest. Incident to that valid custodial arrest, Luck had the authority to

conduct a search. It is well established that the police may conduct a full search incident to a

lawful custodial arrest. See United States v. Robinson, 414 U.S. 218, 235 (1973) (“It is the fact

of custodial arrest which gives rise to the authority to search.”); see also Gustafson v. Florida,

414 U.S. 260, 266 (1973).

       Finally, appellant argues that his actions in response to Luck’s statement that he could

search the vehicle were merely reactions to what he felt was an illegal act by Luck. According to

Commonwealth v. Hill, 264 Va. 541, 570 S.E.2d 805 (2002), there is no common law right in

Virginia to resist an illegal detention. “[W]e hold that a person in this Commonwealth does not

have the right to use force to resist an unlawful detention . . . .” Id. at 548, 570 S.E.2d at 809.

Luck’s statement that he “could search the vehicle,” did not justify appellant fleeing the scene.

Once appellant tried to start the vehicle ignition and flee, the nature of the encounter changed,

and Luck had authority to make a full-scale arrest. See Quigley v. Commonwealth, 14 Va. App.

28, 33 nn.5-6, 414 S.E.2d 851, 854 nn.5-6 (1992) (citing United States v. Lane, 909 F.2d 895,

899 (6th Cir. 1990), cert. denied, 498 U.S. 1093 (1991)); see also Parker v. Commonwealth, 255

                                                 -4-
Va. 96, 106, 496 S.E.2d 47, 53 (1998) (discussing that probable cause is defined in terms of facts

and circumstances sufficient to warrant a prudent man in believing that the suspect had

committed or was committing an offense); United States v. Sprinkle, 106 F.3d 613 (4th Cir.

1997) (“There is a strong policy reason for holding that a new and distinct crime, even if

triggered by an illegal stop, is a sufficient intervening event to provide independent grounds for

arrest.”). Luck made the arrest and searched the vehicle in connection with a lawful custodial

arrest.

                                         III. CONCLUSION

          We hold the evidence was obtained pursuant to a proper custodial arrest after appellant

attempted to flee. Accordingly, we affirm the trial court’s denial of appellant’s motion to

suppress.

                                                                                          Affirmed.




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