COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Bray 

Argued at Norfolk, Virginia 

DALTON ROGER FORD 

 OPINION BY 

v. Record No. 2683-95-1 JUDGE SAM W. COLEMAN III 

 SEPTEMBER 10, 1996 

CITY OF NEWPORT NEWS 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

 Richard C. Kerns for appellant. 

 Owen I. Ashman, Deputy Commonwealth's 

Attorney (Howard E. Gwynn, Commonwealth's 

Attorney; Charles E. Powell, Deputy 

Commonwealth's Attorney; James S. Gilmore, 

III, Attorney General; Marla Graff Decker, 

Assistant Attorney General, on brief), for 

appellee. 

 Dalton Roger Ford was convicted in a bench trial of 

disorderly conduct and possession of a concealed weapon in 

violation of §§ 28-11 and 43-2, respectively, of the Newport News 

City Code. Ford contends that because he was unlawfully detained 

and arrested, the trial court erred by denying his motion to 

suppress the arresting police officer's testimony and his motions 

to strike the evidence as to both charges. We find that the 

evidence is insufficient, based on the statement of fact, to 

support a finding that the officer had probable cause to believe 

that Ford's conduct was disorderly in violation of Newport News 

City Code § 28-11. Accordingly, the officer had no basis to 

arrest Ford on that charge and, thus, no basis to search him and 

seize his knife. Therefore, we reverse both convictions and 
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dismiss the charges. 

 According to the "Written Statement of Facts, and Testimony, 

and Other Incidents of the Case," filed pursuant to Rule 5A:8(c), 

the Commonwealth's only witness was Officer F. S. Nowak, Jr., of 

the Newport News Police Department. Officer Nowak testified that 

at approximately 9:00 p.m. on May 24, 1995, he and another 

officer were patrolling an area of Newport News known for 

prostitution and drug activity. Both officers were in uniform 

and riding bicycles. 

 The officers saw the defendant pushing a bicycle in a small 

park and "decided to approach the defendant and ask him his name 

and address [because] it was 9:00 p.m. in a location known for 

criminal activity." Officer Nowak testified that "he did not 

suspect the defendant of prostitution or drug activity, but he 

wanted to field interview the defendant because the defendant was 

pushing a bicycle, which could be stolen, at night in a known 

high crime area." Officer Nowak stopped his bicycle 

approximately ten feet from the defendant and asked the defendant 

to "come over" to him. According to Nowak, his bicycle light was 

on, but neither he nor the other officer "drew their guns" or 

"shined a light" on the defendant. 

 Officer Nowak testified that when he asked the defendant to 

come over to him, "the defendant immediately became loud, angry, 

and uncooperative." According to Nowak, the defendant stated: 

"I'm tired of this shit. The cops in Hampton do the same shit, 
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and I'm not going to put up with it anymore." The defendant 

continued to use offensive language and threw "his arms about in 

the air. The defendant was so loud and boisterous that apartment 

dwellers in a nearby building came out on their porch and asked 

if the officers needed help." The defendant's actions also 

attracted "the attention of other police officers . . . in a 

training class in a nearby building . . . who left their training 

activities to come to Officer Nowak's assistance if necessary." 

 Officer Nowak arrested the defendant for disorderly conduct 

and searched him incident to that arrest. As a result of the 

search, Nowak recovered a lock-blade knife from the defendant's 

person. 

 A law enforcement officer does not implicate the Fourth 

Amendment by approaching a citizen in a public place for the 

purpose of asking the individual his name and address. See

Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 648 

(1992) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 

1319, 75 L.Ed.2d 229 (1983) (plurality opinion)). Furthermore, a 

consensual encounter between the police and a citizen becomes a 

seizure for Fourth Amendment purposes "only if, in view of all 

the circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave." Id. (quoting 

United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 

64 L.Ed.2d 497 (1980) (Stewart, J.)). In order for a seizure to 

occur, the police must restrain a citizen's freedom of movement 
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by the use of physical force or show of authority. California v. 

Hodari D., 499 U.S. 621 (1991). 

 Here, although both officers were in uniform, neither 

officer drew his weapon, physically restrained the defendant, or 

by show of force or authority indicated that the defendant was 

not free to leave. Officer Nowak stopped his bicycle 

approximately ten feet from the defendant and requested the 

defendant to come over to him. Under these circumstances, "we 

find no evidence of 'the threatening presence of several 

officers, the display of a weapon by an officer, some physical 

touching of the person of the citizen, or the use of language or 

tone of voice indicating that compliance with the officer's 

request might be compelled.'" Baldwin, 243 Va. at 199, 413 

S.E.2d at 649 (quoting Mendenhall, 446 U.S. at 554). Thus, the 

initial encounter between the defendant and the police officers 

was consensual and no seizure occurred until Officer Nowak 

arrested Ford for disorderly conduct. Accordingly, the 

dispositive question is whether Officer Nowak had probable cause 

to arrest the defendant for disorderly conduct. If so, Officer 

Nowak was entitled to search the defendant incidental to the 

arrest, Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 

23 L.Ed.2d 685 (1969); if not, Nowak had no other lawful basis 

for searching the defendant or seizing the knife from his pocket. 

 Section 28-11 of the Newport News City Code provides that 

 [a] person is guilty of disorderly conduct 

and a misdemeanor if, with intent to cause 

public inconvenience, annoyance or alarm, or 
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recklessly creating a risk thereof, such 

person . . . engages in conduct having a 

direct tendency to cause acts of violence by 

the person or persons at whom, individually, 

such conduct is directed; provided, however, 

such conduct shall not be deemed to include 

the utterance or display of any word. 

(Emphasis added). Compare Code § 18.2-415. The requirement that 

the defendant's actions or behavior, in order to constitute 

disorderly conduct, must have "a direct tendency to cause acts of 

violence" is dictated by concern for First Amendment free speech 

protections: 

 [T]he First Amendment protects a significant 

amount of verbal criticism and challenge 

directed at police officers. "Speech is 

often provocative and challenging. . . . [But 

it] is nevertheless protected against 

censorship or punishment, unless shown likely 

to produce a clear and present danger of a 

serious substantive evil that rises far above 

public inconvenience, annoyance, or unrest." 

City of Houston v. Hill, 482 U.S. 451, 461, 107 S. Ct. 2502, 96 

L.Ed.2d 398 (1987) (quoting Terminiello v. City of Chicago, 337 

U.S. 1, 4, 69 S. Ct. 894, 93 L.Ed. 1131 (1949)). 

 "[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." Jones v. Commonwealth, 18 Va. App. 229, 231, 

443 S.E.2d 189, 190 (1994) (quoting Taylor v. Commonwealth, 222 

Va. 816, 820, 284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S. 

906 (1982)). "The test of constitutional validity is whether at 
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the moment of arrest the arresting officer had knowledge of 

sufficient facts and circumstances to warrant a reasonable man in 

believing that an offense has been committed." Bryson v. 

Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250 (1970) 

(citations omitted). To establish probable cause, the 

Commonwealth must show "a probability or substantial chance of 

criminal activity, not an actual showing of such activity." Boyd 

v. Commonwealth, 12 Va. App. 179, 188-89, 402 S.E.2d 914, 920 

(1991) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 

S. Ct. 2317, 76 L.Ed.2d 527 (1983)). However, "[t]he only 

difference between facts needed to establish probable cause and 

those needed to prove guilt beyond a reasonable doubt is in the 

degree or quantum of proof, not in the facts or elements of the 

offense." State v. Moore, 659 S.W.2d 252, 257 (Mo. Ct. App. 

1983). "In assessing an officer's probable cause for making a 

warrantless arrest, no less strict standards may be applied than 

are applicable to a magistrate's determination that an arrest 

warrant should issue." Washington v. Commonwealth, 219 Va. 857, 

862, 252 S.E.2d 326, 329 (1979). 

 Officer Nowak did not have reason to believe that the 

defendant's conduct would provoke a violent response from the 

person or persons at whom such conduct was directed, which is a 

requisite element of a violation of Newport News City Code 

§ 28-11. The words uttered by the defendant, however offensive 

or rude, do not establish disorderly conduct. Although Officer 
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Nowak testified that the defendant "[threw] his arms about in the 

air" and was "loud and boisterous," he made no threatening 

remarks, uttered no words that would reasonably incite a breach 

of the peace, or made no threatening movements toward the 

officers. While the defendant's remarks lacked civility and were 

impolite, loud, and persistent protestations about his treatment, 

his act of throwing his arms in the air could in no reasonable 

way cause or incite the officers to violence. There is simply no 

evidence in the record to support a reasonable belief that the 

defendant's conduct would cause a reasonable officer to respond 

with physical force or violence or that the officers considered 

the defendant's throwing his arms in the air to be an assault. 

Consequently, Officer Nowak either did not know that the offense 

of disorderly conduct includes the requirement that the 

defendant's conduct must have a direct tendency to cause violence 

or, if he did, he had no reasonable basis to believe that the 

defendant's conduct had a direct tendency to incite violence. 

 Although a police officer, who makes a warrantless 

misdemeanor arrest based upon mistakes of fact or law, may not be 

subjected to civil liability for false imprisonment, provided 

that the officer acted in "good faith and 'reasonable belief' in 

the validity of the arrest," DeChene v. Smallwood, 226 Va. 475, 

479, 311 S.E.2d 749, 751 (1984) (citation omitted), a warrantless 

arrest that is not based upon probable cause is unconstitutional 

and evidence seized as a result of an unconstitutional arrest is 
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inadmissible, without regard to the officer's good faith and 

reasonable belief that he was not factually or legally mistaken. 

See Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 3 

L.Ed.2d 327 (1959); cf. Jones, 18 Va. App. at 232-33, 443 S.E.2d 

at 191 (holding that the police officer did not have probable 

cause to arrest the accused for criminal trespass because the 

officer did not have "a reasonable basis to conclude that [the 

accused] was neither a resident nor a guest of a resident" of the 

apartment complex). 

 In either case, on these facts a police officer would have 

no reasonable basis to believe that the defendant was guilty of 

disorderly conduct in violation of § 28-11 of the Newport News 

City Code. Consequently, because the officers had no probable 

cause to arrest the defendant, they had no other basis on which 

to lawfully detain or search him. Although the defendant was 

loud, profane, and uncivil, the officers had no basis to 

conclude, on these facts, that they would be required to use 

physical force to restrain the defendant in order to carry out 

their duties. Cf. Keyes v. City of Virginia Beach, 16 Va. App. 

198, 200, 428 S.E.2d 766, 768 (1993) (affirming the accused's 

conviction for disorderly conduct where the police officer 

lawfully stopped the accused for a traffic violation and 

testified that based upon the accused's loud and uncooperative 

behavior, he "felt as though [he] was going to have to fight to 

subdue [the accused]"). 
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 Because the officer had no probable cause to arrest Ford for 

disorderly conduct, the search incident to that arrest and the 

seizure of the knife from his pocket was a "fruit" of the illegal 

arrest and should have been suppressed. Wong Sun v. United 

States, 371 U.S. 471, 484-85, 83 S. Ct. 407, 9 L.Ed.2d 441 

(1963). In view of the holding that the evidence was 

insufficient to support a probable cause finding of disorderly 

conduct, necessarily, without additional evidence, it is 

insufficient to support the disorderly conduct conviction. Thus, 

we reverse both convictions and dismiss the charges. 

 Reversed and dismissed.