COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bumgardner 

Argued by teleconference 

ANGELO LEWIS FORD 

 OPINION BY 

v. Record No. 0119-97-2 JUDGE RUDOLPH BUMGARDNER, III 

 SEPTEMBER 1, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Herbert C. Gill, Jr., Judge 

 D. Gregory Carr (Bowen, Bryant, Champlin & 

Carr, on brief), for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Angelo Ford was convicted of grand larceny during a bench 

trial. The appellant contends the court erred by denying his 

motion to suppress because: (1) the stop was invalid; (2) the 

appellant was subjected to custodial interrogation without being 

given Miranda warnings; and (3) the show-up was unduly 

suggestive. In addition, the appellant alleges the trial court 

erred in denying his motion challenging the sufficiency of the 

evidence. For the following reasons, we affirm the trial court's 

decision. 

 The evidence at the appellant's trial proved that, on 

November 27, 1995, Detective J.A. Capocelli observed the 

appellant walking with two women in the parking lot of the 

Cloverleaf shopping mall. The appellant was carrying a white 

plastic bag. As they approached a wooded area on the east side 
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of the lot, the appellant and the two women looked over their 

shoulders several times. The appellant then separated from the 

two women and entered a wooded area adjacent to the parking lot. 

 Detective Capocelli lost sight of the appellant for the minute 

or two he was in the wooded area. The appellant then exited the 

woods without the white plastic bag and returned to the two 

women. The appellant and one of the women started walking toward 

the woods together but then turned back and joined the second 

woman. All three then walked into the mall. 

 After the appellant and the two women entered the mall, 

Detective Capocelli went into the wooded area and "after about 

ten seconds of searching, . . . found a white plastic bag hidden 

underneath two old mattresses that were disposed in the woods." 

The bag was similar in appearance to the one he had earlier seen 

the appellant carry into the wooded area. No other white bag was 

found. Inside the bag were five pieces of women's clothing that 

were "rolled up." The clothing had store tags indicating they 

came from a store named "Lane Bryant." There was no sales slip 

or receipt inside the bag. Detective Capocelli replaced the 

clothing and the bag in the wooded area and returned to his car. 

 About thirty to forty-five minutes after Detective Capocelli 

had seen the appellant and the two women enter the mall, the 

detective observed them exit the mall and walk east on Midlothian 

Turnpike. Detective Capocelli and three uniformed police 

officers, who had been informed of the detective's observations, 
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stopped the appellant and the two women by approaching them in 

vehicles with blue police lights activated. Detective Capocelli 

exited his vehicle and approached the appellant while two 

officers exited their cars and approached the two women. 

Detective Raymond Michael Louth attempted to ascertain whether 

the appellant had been in Lane Bryant that day. 

 Detective Capocelli asked the appellant for his name and any 

identification. The appellant provided neither. While most 

questions were geared toward identification, Detective Capocelli 

did ask the appellant if he could explain his actions in the 

parking lot. Early during the stop, the appellant denied being 

on the mall property, denied carrying a bag, and denied knowing 

the two females with him. Detective Capocelli testified at trial 

that the appellant was not free to leave and that he asked the 

appellant many questions more than once. The appellant was read 

his Miranda rights about thirty minutes after he was stopped. 

The appellant subsequently asked for an attorney. 

 Detective Louth, who had observed the appellant and the two 

women in the mall, retrieved the white bag from the woods after 

Detective Capocelli had told him where it was located. Detective 

Louth then took the clothing in the bag to Lane Bryant. He drove 

a store clerk to where Detective Capocelli was talking to the 

appellant, but the clerk did not recognize him. Detective Louth 

then transported another clerk, Nicole Dance El, to the scene of 

the appellant's stop. Although Ms. El had not previously given a 
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description of the appellant to Detective Louth, she told him 

that the people being detained had been in the store that day; 

she recognized a hat worn by one of the women. Ms. El recalled 

the appellant and the two women because they were one of only two 

customers she had assisted that day. She had noted nothing 

unusual about the appellant's behavior in the store. 

 Ms. El testified that when items are purchased from Lane 

Bryant, the store's practice is to have the cashier tear off the 

bottom half of the store tag. She also stated that the value of 

the clothing in the bag was between $340-$350. 

I. Motion to Suppress 

 When a motion to suppress is reviewed on appeal, the burden 

is on the appellant to show that the ruling, when the evidence is 

considered in the light most favorable to the Commonwealth, 

constituted reversible error. See Fore v. Commonwealth, 220 Va. 

1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 

(1980). We review the trial court's findings of historical fact 

only for "clear error," but we review de novo the trial court's 

application of defined legal standards, such as "reasonable 

suspicion" and "custodial interrogation," to the particular facts 

of a case. See Shears v. Commonwealth, 23 Va. App. 394, 398, 477 

S.E.2d 309, 311 (1996); see also Ornelas v. United States, 517 

U.S. 690, 700 (1996). 

 A police officer may stop and detain a person "for purposes 

of investigating possible criminal behavior even though there is 
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no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 

22 (1968); DePriest v. Commonwealth, 4 Va. App. 577, 585, 359 

S.E.2d 540, 544-45 (1987), cert. denied, 488 U.S. 985 (1988). 

Investigative stops must be based on articulable facts supporting 

a reasonable suspicion that, based on the totality of 

circumstances, the suspect detained has committed or is about to 

commit a crime. See United States v. Cortez, 449 U.S. 411, 

417-18 (1981); Leeth v. Commonwealth, 223 Va. 335, 340, 288 

S.E.2d 475, 478 (1982) (a stop requires a less stringent test 

than probable cause); DePriest, 4 Va. App. at 584, 359 S.E.2d at 

543. A trained and experienced police officer may be able to 

detect criminal behavior that might appear innocent to an 

untrained observer. See Cortez, 449 U.S. at 418; Taylor v. 

Commonwealth, 6 Va. App. 384, 388, 369 S.E.2d 423, 425 (1988). 

 We hold that Detective Capocelli had a reasonable, 

articulable suspicion that the appellant had committed a crime at 

the time he was stopped. The detective observed the appellant 

walking from the mall toward a wooded area while carrying a white 

plastic bag and looking over his shoulder several times. He then 

observed the appellant walk into a wooded area and emerge a few 

minutes later without the bag. The detective retrieved the bag 

moments later and discovered it contained what appeared to be 

stolen items of women's clothing. Based on these facts, 

Detective Capocelli could reasonably surmise that the appellant 

had engaged in criminal activity. See Cortez, 449 U.S. at 
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421-22. In addition, the record established that the detective 

communicated this information to the other officers who assisted 

in the stop. Detaining suspects expeditiously to avoid their 

possible flight or remaining at large promotes the government's 

interest in solving crimes and bringing offenders to justice, 

United States v. Hensley, 469 U.S. 221, 229 (1985), and in this 

case, Detective Capocelli and the other officers acted with 

dispatch. As such, we cannot say that the trial court erred when 

it concluded that the investigative stop was valid. 

 Next we consider whether the appellant was in custody when 

questioned. An investigative stop requires Miranda safeguards 

when, considering all factors, a suspect is "in custody." See

Wass v. Commonwealth, 5 Va. App. 27, 32, 359 S.E.2d 836, 839 

(1987); Commonwealth v. Milner, 13 Va. App. 556, 558, 413 S.E.2d 

352, 353 (1992) (citing Berkemer v. McCarty, 468 U.S. 420, 440 

(1984)). Whether a suspect is "in custody" under Miranda is 

determined by the circumstances of each case, and "the ultimate 

inquiry is simply whether there is a 'formal arrest or restraint 

on freedom of movement' of the degree associated with formal 

arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) 

(citation omitted). A temporary detention for purposes of 

investigation, without more, does not necessarily render a person 

"in custody." See United States v. Brignoni-Ponce, 422 U.S. 873, 

881-82 (1975); DePriest, 4 Va. App. at 587, 359 S.E.2d at 545; 

Dixon v. Commonwealth, 11 Va. App. 554, 556, 399 S.E.2d 831, 
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832-33 (1991). 

 In this case, the evidence supports the trial court's 

finding that the appellant was not in custody at the time his 

statements were made. The appellant was detained on a public 

street in the middle of the afternoon. Although he was not free 

to leave, he was not restrained, handcuffed, or searched. While 

four officers were present with police vehicles, there were three 

suspects, and one officer was ascertaining whether the appellant 

had been in the store. The appellant was not surrounded, and 

only Detective Capocelli asked him questions. Most of the 

questions were related to identification, and police may, within 

the scope of an investigative stop, ask a suspect to explain 

suspicious circumstances. See Brignoni-Ponce, 422 U.S. at 

881-82. Detective Capocelli testified that he never told the 

appellant that he was being apprehended for alleged grand 

larceny. Under these circumstances, we cannot say that a 

reasonable person in the appellant's position would have believed 

that his encounter with the officers had escalated from an 

investigative detention to an arrest. 

 The thirty-minute detention before Miranda warnings were 

issued does not affect our decision. 

 Much as a "bright line" rule would be 

desirable, in evaluating whether an 

investigative detention is unreasonable, 

common sense and ordinary human experience 

must govern over rigid criteria. 

* * * * * * * 

 In assessing whether a detention is too 
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long in duration to be justified as an 

investigative stop, we consider it 

appropriate to examine whether the police 

diligently pursued a means of investigation 

that was likely to confirm or dispel their 

suspicions quickly, during which time it was 

necessary to detain the defendant. 

United States v. Sharpe, 470 U.S. 675, 685-86 (1985). See

United States v. Alpert, 816 F.2d 958 (4th Cir. 1987) 

(fifty-minute delay for obtaining narcotics dog is permissible); 

Thomas v. Commonwealth, 16 Va. App. 851, 856-57, 434 S.E.2d 319, 

322-23 (1993), aff'd, 18 Va. App. 454, 444 S.E.2d 275 (1994) (en

banc) (lawful to handcuff and transport suspect in police vehicle 

to victim's house for identification); Burgess v. Commonwealth, 

14 Va. App. 1018, 1022, 421 S.E.2d 664, 666 (1992) (forty-minute 

detention in police vehicle is permissible where police are 

determining whether car was stolen). 

 Here, the appellant was subjected to an investigative stop 

for the purpose of determining whether he had been in the Lane 

Bryant store. The police saw him walking away from the mall and 

acted quickly to detain him for investigative purposes. As a 

result of the stop, Detective Capocelli's suspicions were further 

aroused. The appellant made statements that contradicted the 

detective's personal observations. In addition, Detective Louth 

recovered the white plastic bag from the wooded area and 

determined that the clothing it contained had been stolen and 

that the appellant had been in Lane Bryant earlier in the day. 

The officers acted diligently and without unnecessary or 
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deliberate delay to effectuate the purpose of the stop. Thus, we 

conclude that the trial court properly denied the appellant's 

motion to suppress. 

 The appellant also contends the show-up was unduly 

suggestive and violated his due process rights. We disagree. 

 Pre-trial show-ups are not per se violative of 

constitutional rights. Reliability of the show-up is determined 

by considering the totality of circumstances. See Neil v. 

Biggers, 409 U.S. 188, 198-99 (1972); Yarborough v. Commonwealth, 

15 Va. App. 638, 643, 426 S.E.2d 131, 134 (1993), rev'd on other 

grounds, 247 Va. 215, 441 S.E.2d 342 (1994). Courts should 

consider the opportunity of the witness to observe the suspect at 

the time of the crime, the witness' degree of attention, the 

accuracy of the witness' prior description of the suspect, the 

level of certainty demonstrated by the witness' confrontation, 

and the length of time between the crime and the confrontation. 

See Neil, 409 U.S. at 199-200. 

 In this case, the purpose of the identification was to 

determine whether the appellant had been in the store. The first 

store clerk did not recognize the appellant. Ms. El identified 

the appellant with certainty. She had observed the appellant in 

her store, recalled speaking with one of the women with him, and 

very little time had elapsed between her observation of them in 

the store and the confrontation. The show-up was conducted as 

expeditiously as possible. Based on these circumstances, we 
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conclude that the show-up was not impermissibly suggestive. 

II. Motion to Strike 

 When an appeal challenges the sufficiency of the evidence, 

the evidence is viewed in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences deducible 

therefrom. A judgment will not be disturbed unless plainly wrong 

or unsupported by the evidence. See Code § 8.01-680; 

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 

537 (1975); Limonja v. Commonwealth, 8 Va. App. 532, 534, 383 

S.E.2d 476, 477-78 (1989) (en banc), cert. denied, 495 U.S. 905 

(1990). 

 A conviction will be affirmed when the circumstantial 

evidence excludes every reasonable hypothesis of innocence which 

flows from the evidence. See Higginbotham, 216 Va. at 353, 218 

S.E.2d at 537; Stamper v. Commonwealth, 220 Va. 260, 272, 257 

S.E.2d 808, 817 (1979), cert. denied, 445 U.S. 972 (1980). 

 The appellant has suggested various inferences that could be 

drawn from the evidence which, he asserts, create a reasonable 

hypothesis of innocence. He alleges the court erred in denying 

his motion to strike because: (1) the larceny presumption that 

arises when one is in possession of recently stolen property does 

not apply because the property was found in the woods where 

several people had access; (2) the bag that was recovered was not 

necessarily the same bag that the appellant was seen carrying 

into the woods; (3) there was no evidence showing when the items 
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in the bag were stolen or when the appellant was in the store; 

(4) the Commonwealth did not negate the possibility that the 

items were sold and that the clerk forgot to remove the tags; and 

(5) the evidence was insufficient to prove the value for grand 

larceny. 

 We hold that the evidence presented at trial was sufficient 

to prove that appellant took five items of women's clothing worth 

more than $200 from Lane Bryant without the store's permission 

and with the intent to permanently deprive the store of 

possession of these goods. The record established that appellant 

was at Lane Bryant on the day of the theft. He was seen carrying 

a white plastic bag in the mall parking lot while glancing 

furtively over his shoulder. He entered a wooded area with the 

bag and returned to the parking lot a minute or two later without 

it. Detective Capocelli quickly retrieved the bag after the 

appellant re-entered the mall. No other white bag was located in 

the wooded area, and no other persons were observed there. The 

bag contained five articles of women's clothing from Lane Bryant 

but no sales receipt, and the store tags were still attached to 

the clothing. The record established that, when clothing is 

purchased from Lane Bryant, the store's practice is to tear off 

the bottom half of the store tag. Detective Louth took the 

clothing to the store and an employee valued the items at more 

than $300. 

 The fact finder considered and rejected the facts and 
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inferences presented by the appellant. See Cook v. Commonwealth, 

226 Va. 427, 432, 309 S.E.2d 325, 329 (1983). In addition, the 

appellant's false statements to police constitute further 

evidence of his guilt. See Walker v. Commonwealth, 25 Va. App. 

50, 60, 486 S.E.2d 126, 131 (1997). The evidence was sufficient 

to find the appellant guilty of grand larceny. We find no error. 

 For the foregoing reasons, the trial court's decision is 

affirmed. 

 Affirmed. 
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Benton, J., dissenting. 

 A person "who has been detained . . . [by the police and is] 

thereafter . . . subjected to treatment that renders him 'in 

custody' for practical purposes, [is] entitled to the full 

panoply of protections prescribed by Miranda." Berkemer v. 

McCarty, 468 U.S. 420, 440 (1984). The detention becomes 

"custodial" for purposes of Miranda whenever the person has his 

or her "freedom of action . . . curtailed to a 'degree associated 

with formal arrest.'" Id. (citation omitted). 

 Furthermore, whether a person is "in custody" within the 

meaning of Miranda turns upon "how a reasonable [person] in the 

suspect's position would have understood his situation." Id. at 

442. "Thus, a suspect is 'in custody' when the objective 

circumstances would lead a reasonable person to believe he was 

under arrest, thereby subjecting him or her to pressure impairing 

the free exercise of the privilege against self-incrimination." 

Cherry v. Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242, 245 

(1992). "[T]he initial determination of custody depends on the 

objective circumstances of the interrogation, not on the 

subjective views harbored by either the interrogating officers or 

the person being questioned." Stansbury v. California, 511 U.S. 

318, 323 (1994). 

 Among the factors that must be considered are 

whether a suspect is questioned in familiar 

or neutral surroundings, the number of police 

officers present, the degree of physical 

restraint, and the duration and character of 

the interrogation. Whether or when probable 

cause to arrest exists and when the suspect 
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becomes the focus of the investigation are 

relevant facts to consider. "[T]he language 

used by the officer to summon the individual, 

the extent to which he or she is confronted 

with evidence of guilt, the physical 

surroundings of the interrogation, the 

duration of the detention and the degree of 

pressure applied to detain the individual" 

may be significant factors as well. 

Wass v. Commonwealth, 5 Va. App. 27, 32-33, 359 S.E.2d 836, 839 

(1987) (citations omitted). 

 When Angelo Ford left the shopping mall, he was stopped on 

the street by four police officers, three of whom were in uniform 

and armed with weapons. The officers arrived in four separate 

police vehicles with their blue emergency lights activated to 

effect the stop. The officer who detained and questioned Ford 

testified that Ford was not free to leave. Furthermore, the 

circumstances certainly proved that Ford was not free to 

terminate the encounter. 

 When the police initially stopped Ford, they did so based 

upon an officer's specific identification of Ford as the person 

who went into the wooded area behind the shopping mall and hid a 

bag containing items with intact store tags. Thus, when the 

officers detained Ford, the investigation had not only focused on 

Ford but had particularly identified the Lane Bryant clothing 

store as the place from which the items originated. 

 During the detention, Ford was questioned about his 

identity. After the officers questioned Ford about his identity, 

the officers then repeatedly questioned Ford for an "explanation 
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[of] the activity that [the officer] witnessed . . . inside the 

[mall's] parking lot." Ford was questioned about those events 

for thirty minutes. In addition to the extensive questioning, 

the police detained Ford to allow two store workers to be brought 

separately from Lane Bryant to view Ford. 

 Based on the length of the detention, the number of police 

officers involved, the nature and repetition of the questions 

being asked, and the fact that the investigation had focused on 

Ford, I would hold that the circumstances of the detention and 

questioning constituted a custodial interrogation. The 

questioning of Ford was initiated before he was viewed by the 

store employees. Furthermore, the questioning was designed at 

the outset to produce incriminating statements from the precise 

person whom the officer had seen engaging in conduct that the 

officer believed was criminal. Only after Ford made statements 

in response to repeated questioning did the officers inform Ford 

of his Miranda rights. 

 The totality of the objective circumstances in this case 

would lead a reasonable person in Ford's position to believe he 

or she was under arrest. See Cherry, 14 Va. App. at 139, 415 

S.E.2d at 245. The detention was not of a short duration but 

lasted thirty minutes. A reasonable person in Ford's position 

would clearly have felt he or she was unable to leave and that he 

or she was, in fact, "in custody." The only reasonable 

assumption to draw from this record is that if Ford had attempted 
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to leave, he would have been formally arrested. This detention 

was the "functional equivalent of formal arrest," Berkemer, 468 

U.S. at 442, and created a custodial situation requiring 

appropriate Miranda warnings. 

 A person in police custody "must be warned that he has a 

right to remain silent, that any statement he does make may be 

used as evidence against him, and that he has a right to the 

presence of an attorney." Miranda v. Arizona, 384 U.S. 436, 444 

(1966). Statements made by an accused during custodial 

interrogation and without proper Miranda warnings are 

inadmissible as evidence. See Dean v. Commonwealth, 209 Va. 666, 

667-68, 166 S.E.2d 228, 230 (1969). 

 Because Ford was not warned of his Miranda rights prior to 

the questioning that led to his incriminating statements, I would 

hold that the statements were obtained in violation of Ford's 

Fifth Amendment rights and that all the evidence derived from his 

statements was tainted under the rule of Wong Sun v. United 

States, 371 U.S. 471, 488 (1963). Because the statements and 

evidence should have been suppressed, I dissent.