COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Salem, Virginia 

GRELLAN J. HARTY 

 MEMORANDUM OPINION* BY 

v. Record No. 0979-96-3 JUDGE JOHANNA L. FITZPATRICK 

 APRIL 29, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY 

George E. Honts, III, Judge 

 Thomas C. Spencer (Spencer & Filson, P.C., on 

brief), for appellant. 

 Daniel J. Monroe, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Grellan J. Harty (appellant) appeals his conviction of 

driving while under the influence of alcohol in violation of Code 

§ 18.2-266. He contends that, because the Commonwealth's 

evidence was obtained by unlawfully detaining appellant and 

violating his Fourth Amendment rights, the trial court erred in 

denying his motion to suppress. For the reasons that follow, we 

affirm the judgment of the trial court.1

 At approximately 11:30 p.m. on November 28, 1995, Officer 

Ferguson (Ferguson) of the Rockbridge County Sheriff's Department 

was travelling west on U.S. Route 39 in Rockbridge County. It 

was raining heavily, and he noticed appellant walking down the 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 1The record on appeal consisted of a statement of facts. 
 2 

road without an umbrella or raincoat. A short distance away, 

Ferguson saw "a vehicle on the right hand side of the road [that] 

had run into a bank." As he passed the vehicle, he shined a 

spotlight on it, but saw no one in the car. He turned his car 

around, approached appellant, and told him to get into the car. 

Ferguson testified at trial that he told appellant to get into 

his car to offer him shelter from the rain. Appellant testified 

that he "felt ordered to get into the car and was not free to 

leave." 

 Once appellant was in the car, Ferguson asked him whether he 

had been driving the car, and appellant responded affirmatively. 

 Appellant told the officer that he had been driven off the road 

by a truck. At that point in the conversation, Ferguson detected 

the odor of alcohol. Appellant described the errant truck, and 

pursuant to department policy, Ferguson radioed for a trooper to 

investigate the accident. Appellant told Ferguson that "the last 

alcohol he had consumed had been more than an hour previously." 

Virginia State Trooper Noe (Noe) arrived at the scene, and after 

Ferguson relayed the events, took over the investigation. 

Appellant conveyed a similar story to Noe, and told him that he 

"had consumed about four beers" and that he "had had his last 

beer around 10:00 p.m." 

 Appellant moved to suppress the evidence obtained by the 

Commonwealth on the grounds that it had been obtained as the 

result of an illegal stop and seizure in violation of his Fourth 
 3 

Amendment rights. The trial court denied the motion and on April 

22, 1996, found him guilty of driving under the influence. 

I. REASONABLE ARTICULABLE SUSPICION

 Appellant contends that there was no basis for Ferguson to 

conduct an investigative stop and consequently, his detention was 

a seizure in violation of his Fourth Amendment rights. Thus, he 

argues, any evidence obtained as a result thereof should have 

been suppressed by the trial court. 

 On appeal, appellant has the burden to demonstrate that the 

trial court's decision in overruling the motion to suppress was 

plainly wrong and reversible error. See Fore v. Commonwealth, 

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

1017 (1980); Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 

S.E.2d 232, 233 (1993). All credible evidence favorable to the 

Commonwealth, including all fair inferences to be drawn 

therefrom, is to be regarded as true. Wright v. Commonwealth, 

196 Va. 132, 137, 82 S.E.2d 603, 606 (1954). 

 "'[A] police officer may in appropriate circumstances and in 

an appropriate manner approach a person for purposes of 

investigating possible criminal behavior even though there is no 

probable cause to make an arrest.'" Williams v. Commonwealth, 4 

Va. App. 53, 64, 354 S.E.2d 79, 85 (1987) (quoting Terry v. Ohio, 

392 U.S. 1, 22 (1968)). "'[I]f there are articulable facts 

supporting a reasonable suspicion that a person has committed a 

criminal offense, that person may be stopped in order to identify 
 4 

him, to question him briefly, or to detain him briefly while 

attempting to obtain additional information.'" Id. (quoting 

Hayes v. Florida, 470 U.S. 811, 816 (1985)). In evaluating 

whether an investigative detention is unreasonable, ordinary 

human experience must govern over rigid criteria, and the 

totality of the circumstances must be considered. See Limonja v. 

Commonwealth, 8 Va. App. 532, 542, 383 S.E.2d 476, 482 (1989) (en 

banc), cert. denied, 495 U.S. 905 (1990). 

 In the instant case, Ferguson clearly had reasonable 

articulable suspicion that appellant had been involved in the 

accident at the time of the detention. The record established 

that Ferguson observed a man walking, on a rainy night, without a 

coat or umbrella, away from a car that had been driven off the 

road and into an embankment. No other persons were near the 

scene of the accident. Based on the totality of these 

observations, Ferguson reasonably concluded that appellant was 

involved in the accident. Credible evidence supports the 

inferences that Ferguson stopped appellant to determine the cause 

of the accident, whether anyone was hurt, whether damage was 

sustained, and whether alcohol was involved.2

II. NON-CUSTODIAL INTERROGATION

 Appellant next argues that he was not given his Miranda

 

 2Appellant's reliance on Barrett v. Commonwealth, 250 Va. 

243, 462 S.E.2d 109 (1995), is misplaced. The community 

caretaker doctrine is inapplicable in the instant case because, 

as stated above, Ferguson possessed reasonable articulable 

suspicion and made a valid investigative detention of appellant. 
 5 

warnings prior to being questioned by the police. See Miranda v. 

Arizona, 384 U.S. 436 (1966). However, this objection is not 

noted anywhere in the statement of facts. "No ruling of the 

trial court . . . will be considered as a basis for reversal 

unless the objection was stated together with the grounds 

therefor at the time of the ruling, except for good cause shown 

or to enable the Court of Appeals to attain the ends of justice." 

 Rule 5A:18. We will not consider an argument on appeal that was 

not presented to the trial court. See Jacques v. Commonwealth, 

12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 

5A:18). Moreover, the record does not reflect any reason to 

invoke the good cause or ends of justice exceptions to Rule 

5A:18. 

 Accordingly, we hold that the trial court properly overruled 

appellant's motion to suppress, and we affirm the trial court's 

judgment. 

 Affirmed.