COURT OF APPEALS OF VIRGINIA

Present: Judges Fr ank, Kelsey and Powell Argued at Chesapeake, Virginia

KEVIN MARSHALL DAVIS MEMORANDUM OPINION * BY v. Record No. 1494-09-1 J UDGE CLEO E. POWELL JULY 20, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Karen J. Burrell, Judge Robert H. Knight, III, Assist ant Public Defender (J. Barry McCracken, Assistant Public Defender; Office of the Public Defender, on brief), for appellant. John W. Blanton, Assistant A ttorney General (Kenneth T. Cuccinelli, II, Attorney Gene ral, on brief), for appellee.

Kevin Marshall Davis (“Davis”) was convicted of possession of cocaine, in violation of Code § 18.2-250. On appeal, Davis contends that Officer Herbst lacked reasonable, articulable suspicion to justify an investigatory detention of him because the information provided by the dispatcher was “so nonspecific as to provide no reliable basis to take any actions based on the officer’s own observations” and the victim provi ded no “specific information . . . on which to form a reasonable basis to assume criminal activity on the part of” Davis. He also asserts that Officer Herbst violated the Fourth Amendment by continuing into his residence to effectuate a Terry stop when Officer Herbst stuck his hand into the closing front door without an exigent circumstance to justify such action. Davis furthe r contends that the stop exceeded the scope of a Terry stop when he was handcuffed and placed in th e police cruiser. Finally, Davis argues that

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - under Dixon v. Commonwealth , 270 Va. 34, 613 S.E.2d 398 (2005), Officer Herbst was required

to inform Davis of his Miranda rights and because Officer He rbst questioned Davis without advising Davis of these rights, th e statements Davis made should be suppressed. For the reasons that follow, we disagree with Davis’s arguments and affirm his conviction.

I. BACKGROUND On July 18, 2008, Officer Thomas John Herbst of the Norfolk Police Department was dispatched to an apartmen t building on Orchid Street 1 based on a report of an assault in progress. When he arrived, Officer Herbst saw a fe male jumping up and down. The woman was screaming and pointing in the direction of a ma n, who was later identif ied as Davis, walking away. She told Officer Herbst that the man h it her. The woman was disheveled and had an abrasion on her right forearm. Officer Herbst, who was approximately fifteen feet away from Davis at the time, yelled, “stop police.” Although Officer Herbst made repeated reque sts for Davis to stop, Davis continued walking. As Davis step ped inside an apartment buildi ng and the door began to close, Officer Herbst stopped the door with his hand. The officer asked Davis to step outside, which he did, and to sit down, which he refused to do. When Davis stepped outside, Officer Herbst noticed that Davis “had a strong smell of alcoholic beverage on him and a white powder su bstance on the top of his nose and on his lip and even inside his nose.” Based upon his traini ng and experience, Officer Herbst believed this substance was powder cocaine. Officer Herbst told Davis that he was go ing to detain him for further investigation and placed him in handcuffs in the police vehicle. Davis told the officer “he got his drink going and ran some dope.”

1 Officer Herbst also identified this location as Orchid Avenue.- 3 - of In advance of trial, Davis filed a written motion to suppress alleging that no probable cause or reason able suspicion existed to seize him, search his person and arrest him. Such seizure and arrest being in violation of the Fourth Amendment as aforestated [sic]. The Defendant further represents th at any statements attributed to him were involuntary, that he was not advised of his Constitutional rights prior to his custodial interr ogation in violation of the Fifth and Sixth Amendments, as aforestated [sic] and that all matters seized pursuant to the seizure and detention, are “fruits of the poisonous tree” and therefore must be suppressed. At the hearing on the motion to suppress, 2 Davis made no argument in support of dismissing and, in response to questioning from the trial court, stated that the only issue was the validity of the arrest and agreed with the court that “[i]f the arrest was valid, everything comes in.” The trial court denied Davis’s motion. Following a be nch trial, the trial court convicted Davis possession of cocaine.

II. ANALYSIS

A. Whether the Officer Violated the Fourth Amendment On appeal, Davis contends that Officer He rbst violated his Fourth Amendment rights because Officer Herbst lacked reasonable, articu lable suspicion to believe that Davis assaulted the woman. Davis also argues th at Officer Herbst’s actions violated the Fourth Amendment because Officer Herbst exceeded the scope of a Terry stop when he entered Davis’s residence and when he placed Davis in handcuffs in the back of the police car. “In reviewing a trial court’s denial of a motion to suppre ss, ‘[t]he burden is upon [the defendant] to show that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.’” McGee v. Commonwealth , 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) ( en banc ) (quoting Fore v. Commonwealth , 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). While we are bound to review de novo the ultimate

2 The motion to suppress hearing was he ld before Judge Charles E. Poston.- 4 - questions of reasonable suspicion and probable cause, we “review fi ndings of historical fact only

for clear error 3 and . . . give due weight to inferences drawn from those facts by resident judges

and local law enforcement officers.” Ornelas v. United States , 517 U.S. 690, 699 (1996) (footnote added). “In order for a seizure to occur, an individua l must be under some physical restraint by an officer or have submitted to the show of police authority.” Thomas v. Commonwealth , 24 Va. App. 49, 54, 480 S.E.2d 135, 137 (1997) ( en banc ). Here, Officer Herbst repeatedly asked Davis to stop, but Davis disreg arded the officer’s commands. Officer Herbst did not touch Davis. Thus, Davis was not seized until he subm itted to Officer Herbst’s authority by stepping out of his apartment building when Offi cer Herbst ordered that he do so. At the time that Davis submitted to Officer Herbst’s show of authority, Officer Herbst had probable cause to arrest Davis. [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.’” Buhrman v. Commonwealth , 275 Va. 501, 505, 659 S.E.2d 325, 327 (2008) (quoting Taylor v. Commonwealth , 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981)); Robinson v. Commonwealth , 273 Va. 26, 40, 639 S.E.2d 217, 225 (2007); Parker v. Commonwealth , 255 Va. 96, 106, 496 S.E.2d 47, 53 (1998). In determining whethe r a police officer had probable cause to arrest a defendant, a trial court must consider the totality of the facts and circumstances presented and what those facts and circumstances reasonably meant to a trained police officer. Buhrman , 275 Va. at 505, 659 S.E.2d at 327; Brown v. Commonwealth , 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005); Hollis v. Commonwealth , 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976).

Jones v. Commonwealth , 279 Va. 52, 59, 688 S.E.2d 269, 273 (2010).

3 “In Virginia, questions of fact are binding on appeal unless ‘plainly wrong.’” McGee , 25 Va. App. at 198 n.1, 487 S.E.2d at 261 n.1 (citations omitted).- 5 - Contrary to Davis’s allegati on that nothing supported the as sertion that Davis assaulted the woman, the evidence, viewed in the light mo st favorable to the Commonwealth, proved that Officer Herbst responded to a report of an assault in progr ess, and when he arrived, he encountered a woman who was jumping up and down, screaming, and poin ting in the direction

of Davis. She told Officer Herbst that the ma n had hit her. The woman was disheveled and had an abrasion on her right forearm. Officer Herb st attempted to detain Davis to investigate whether he was the man who assaulted the woman, but he refused to stop. As Davis stepped inside the main door to his apartment building and the door began to close, Officer Herbst stopped the door with his hand. 4 He asked Davis to step outside, which he did. At that time, Officer Herbst noticed that Davis “had a strong smell of alcoholic beverage on him and a white powder substance on the top of his nose and on his lip and even insi de his nose.” Officer Herbst

observed that Davis was “out of breath and di sheveled.” Based on his observations and the woman’s statement that Davis hit her, Officer Herbst had probable cause to arrest Davis for assault. Moreover, upon seeing white powder on Da vis’s face and in his nose, Officer Herbst, based upon his training and experi ence, had probable cause to arrest Davis for possession of powder cocaine. Therefore, Officer Herbst’s ac tions in handcuffing Davis and placing him in the police car did not violate the Fourth Amendment, and the trial court did not err in denying Davis’s motion to suppress.

4 Davis contends that Officer Herbst exceeded the scope of a Terry stop by entering his apartment. “[A] suspect may not defeat an a rrest which has been set in motion in a public place . . . by the expedient of escaping to a private place.” United States v. Santana , 427 U.S. 38, 43 (1976); see Washington v. Commonwealth , 29 Va. App. 5, 15, 509 S.E.2d 512 (1999). As Officer Herbst had probable cause to arrest Davis and not merely a reasonable, articulable suspicion to detain Davis for questioning, Davis’s argument is without merit.- 6 - B. Whether Davis’s Statements Sh ould Be Suppressed Because He Was Not Read His Miranda Rights Prior to Being Interrogated Rule 5A:18 mandates that “[n]o ruling of the tr ial court . . . will be considered as a basis for reversal unless the objection wa s stated together with the grounds therefor at the time of the ruling . . . .” 5 “In order to preserve an issue for app eal, ‘an objection must be timely made and the grounds stated with specificity.’” McDuffie v. Commonwealth , 49 Va. App. 170, 177, 638 S.E.2d 139, 142 (2006) (quoting Marlowe v. Commonwealth , 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986)). “To satisfy the rule, ‘an objecti on must be made . . . at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of th e asserted error.’” Scialdone v. Commonwealth , 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) (quoting Johnson v. Raviotta , 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002)). Rule 5A:18 exists “‘to protect th e trial court from appeals based upon undisclosed grounds, to prevent the setting of traps on appeal, to enable the trial judge to rule intelligently, and to avoid unnecessary reve rsals and mistrials.’” Reid v. Boyle , 259 Va. 356, 372, 527 S.E.2d 137, 146 (2000) (quoting Fisher v. Commonwealth , 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988)). The Supreme Court of Vi rginia has consistently focuse d on whether the trial court had the opportunity to rule inte lligently on the issues. Scialdone , 279 Va. at 437, 689 S.E.2d at 724. “If [the] opportunity [to address an issue] is not presented to the trial court, there is no ruling by the trial court on the issue, and thus no basis for review or action by this Court on appeal.” Riverside Hosp., Inc. v. Johnson , 272 Va. 518, 526, 636 S.E.2d 416, 420 (2006). An appellate cour t can only “determine whether

5 Effective July 1, 2010, Rule 5A:18 was revise d to state that “[n] o ruling of the trial court . . . will be considered as a basis for reve rsal unless an objection wa s stated with reasonable certainty at the time of the ruling . . . .” Because the proceedings below were completed prior to this revision taking effect, we will rely on the lan guage of Rule 5A:18 that was then in effect. See Fails v. Virginia State Bar , 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule of Court in effect at th e time of the proceedings below).- 7 - or not the rulings a nd judgment of the court below . . . were correct.” Jackson , 179 Va. at 651, 20 S.E.2d at 493.

Id. Here, the trial court asked Davis a number of questions at the outset of the motion to suppress to try to clarify what Davis meant in the vague motion to suppress that he filed. Specifically, the trial court asked Davis if his argu ment was solely that “[i]f the arrest was valid, everything comes in?” Da vis agreed that it was. In so doing , Davis deprived the trial court of the opportunity to rule in telligently on whether a Miranda violation occurred. See Scialdone , 279 Va. at 437, 689 S.E.2d at 724. As this issue is not properly preserved, we decline to

consider it.

III. CONCLUSION For the foregoing reasons, we affirm the trial court’s denial of Davis’s motion to suppress because, based on the totality of the facts and circumstances when view ed in the light most favorable to the Commonwealth, Officer Herbst had probable cau se to arrest Davis. We

conclude that Davis failed to preserve his argument that hi s rights under the Fifth Amendment were violated, and therefore, we d ecline to consider the issue.

Affirmed.