COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Felton, Judges Frank and Petty Argued at Richmond, Virginia

DARRYLL C. STONE MEMORANDUM OPINION * BY v. Record No. 1735-08-4 JUDGE ROBERT P. FRANK JUNE 2, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ARLINGTON COUNTY William T. Newm an, Jr., Judge Darryll C. Stone, pro se , on briefs. Joshua M. Didlake, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Darryll C. Stone, appellant, was convicted, in a jury trial, of reckless driving, in violation of Code § 46.2-852. On appeal, he contends th at a United States Park Police officer had no authority to stop him for speeding on Interstate 395 in Arlington County. For the reasons stated,

we affirm.

BACKGROUND On August 23, 2007, Lieutenant Peter Shannon of the United States Park Police was driving to his office in Washington D.C. wh en he observed appellant approach him on a motorcycle at a high rate of speed. Sha nnon was operating a Park Police vehicle and was traveling at approximately 80 miles per hour in the HOV lane of Route 395 in Arlington County. As appellant passed alongside Shannon’s vehicle, Shannon “tapped” his siren in an attempt to

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - slow appellant down. Appellant gave Shannon a “disdainful look” and accelerated past Shannon at approximately eighty-five miles per hour. Shannon activated his emergency equipment a nd attempted to stop appellant. The two

vehicles traveled into a 55 mile-per-hour speed zone, and a ppellant eventually stopped his motorcycle. Appellant expresse d his displeasure at being pu lled over, and he questioned Shannon’s authority, as a United St ates Park Police officer, to c onduct a traffic stop on a Virginia roadway. Shannon requested appell ant’s license and registration, but appellant returned to his motorcycle and drove off. Shannon pursued appe llant for a short distance, observing appellant as he cut between cars and forcing them to “brake hard” on the highway. When appellant exited the highway in a congested area, Shannon ended the pursuit for safety reasons.

Shannon later obtained an arrest warrant fo r felony eluding a law enforcement officer. After appellant’s preliminary hearing, the prosecuting attorney sought and obtained an indictment for misdemeanor reckless driving. Appellant filed a motion to quash indictment with the trial court, asserting that Shannon had no au thority to stop appellan t for a violation of a Virginia law on a Virginia highway. The court denied appellant’s moti on, and a jury convicted appellant of reckless drivi ng. This appeal follows.

ANALYSIS Appellant contends that a Un ited States Park Police officer had no authority to stop him on a Commonwealth of Virginia roadway. Implic it in appellant’s argument is that appellant cannot be prosecuted for any behavior that occurred after the alleged illegal stop. The Commonwealth responds that appellant’s position is moot because appellant was not convicted of the speeding for which he was stopped; a ppellant’s conviction is based upon his reckless driving that occurred after the stop had ended.- 3 - Appellant’s argument is twofold. First, he claims Shannon had no authority to conduct the stop either by Virginia statut e or by federal law or regulati on. Second, he argues that this was not a “citizen’s arrest,” nor was Sh annon acting as a conservator of the peace. 1 “[A]n appellate court decides cases ‘on th e best and narrowest ground available.’” Luginbyhl v. Commonwealth , 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) ( en banc ) (quoting

Air Courier Conference v. Am. Postal Workers Union , 498 U.S. 517, 531 (1991) (Stevens, J., concurring)). Assuming without deciding that Shannon had no authority to stop appellant for speeding on Interstate 395, we need not address this issue because appe llant’s reckless driving was a separate and distinct offe nse occurring after the original tr affic stop had concluded. Essentially, appellant is aski ng us to ignore his behavior subsequent to an alleged unlawful stop. However, appell ant’s argument is defeated by Brown v. City of Danville , 44 Va. App. 586, 606 S.E.2d 523 (2004).

In Brown , Brown resisted an unlawful police pat down. Id. at 592-94, 606 S.E.2d at 527. After subduing Brown, police rec overed cocaine from him. Id. at 594, 606 S.E.2d at 527. Brown was charged with obstruction of justice and possession of co caine. The trial court granted the motion to suppress the cocaine because it was obtained as a result of the unlawful pat down. The trial court refused to suppress evidence of Brown’s conduct relating to the obstruction of justice charge. Id. at 595, 606 S.E.2d at 528. This Court uphe ld the trial court, stating that “because Brown’s ‘post-frisk’ struggle with th e officers constituted a separate and distinct

1 On brief and at oral argument , appellant asserted that his elusive driving subsequent to the stop was caused by Shannon’s unlawful pursuit of him. This Court granted review on the sole issue of “[w]hether the trial court erred when it ruled that a United States Park Police officer had jurisdiction to stop appellant for speeding.” Rule 5A:12(c) provides that “[o]nly questions presented in the petition for appeal will be noticed by the C ourt of Appeals.” Cruz v. Commonwealth , 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991). We did not grant appellant an appeal on the additional issue raised by appellant and therefore will not address it.- 4 - criminal offense, we hold that the exclusionary rule did not apply to the officers’ testimony describing the events that occurred af ter the initial attempted pat down.” Id. at 602, 606 S.E.2d

at 531-32. More recently, in Gray v. Commonwealth , 50 Va. App. 513, 515, 651 S.E.2d 400, 401 (2007), an officer approached Gray’s parked ca r on foot and observed Gray put his hand to his mouth and begin chewing on what the officer believed was cocaine. As another officer approached, Gray slowly drove away, ro lling over the first officer’s foot. Id. The officers activated their emergency e quipment and pursued Gray. Id. Gray ignored these signals, and eventually, the officers apprehended Gray af ter he exited his car and fled on foot. Id. Gray was charged with malicious wounding and possession of cocaine. Id. at 516, 651 S.E.2d at 401. The trial court found the original detention was not based on a reasonable, articulable suspicion, but nevertheless found Gray guilty of eluding. Id. at 516, 651 S.E.2d at 402. This Court upheld the trial court, reasoning that Gray’s flight from the police constituted a new crime that was committed after the initial unsuccessful attempt to detain him. Id. at 517, 651 S.E.2d at 402. Referencing Brown , this Court stated, “Regardless of whether the initial attempted detention was lawful, Gray’s conduct for which he was charge d occurred subsequent to [the] attempted

detention.” Id. Here, assuming Shannon’s stop was unlawful, appellant’s reckless driving occurred subsequent to that detention, after the encount er had ceased, and constituted a new offense. Therefore, the trial court did not err in convicting appellant of reckless driving. See id. Appellant attempts to distinguish Brown and Gray on the basis that despite the unlawful police conduct in those cases, the officers nevertheless were within their authority to arrest the suspects. We believe this is a distinction wit hout a difference. Here, the underlying reason for the illegality of the stop, whethe r it be a constitutional violation or because the officer was- 5 - beyond his lawful authority, is of no moment. Appe llant’s conviction is based upon Shannon’s testimony regarding the reckless driving he observe d, a new offense that occurred after the stop.

CONCLUSION For the reasons stated, we find that the trial court did not e rr in convicting appellant of reckless driving. Accordingly, we affirm the conviction.

Affirmed.