COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata 

Argued at Alexandria, Virginia 

CHARLES HERMAN SHELTON, JR. 

 OPINION BY 

v. Record No. 2107-99-4 JUDGE JAMES W. BENTON, JR. 

 DECEMBER 19, 2000 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Wiley R. Wright, Jr., Judge Designate 

 J. Amy Dillard, Deputy Public Defender, for 

appellant. 

 Michael T. Judge, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 The trial judge convicted Charles Herman Shelton, Jr., of one 

count of carjacking. Shelton contends the trial judge erred by 

admitting into evidence a statement he made to police officers 

without the benefit of warnings required by Miranda v. Arizona, 

384 U.S. 436 (1966). We affirm the conviction. 

 I. 

 A grand jury indicted Shelton for robbery, see Code 

§ 18.2-58; Chappelle v. Commonwealth, 28 Va. App. 272, 274-75, 504 

S.E.2d 378, 379 (1998), and carjacking, see Code § 18.2-58.1, of a 

taxi driver in Alexandria. At a hearing on Shelton's pretrial 

motion to suppress, the evidence proved that at 3:30 a.m. police 

officers in the District of Columbia joined in the search for a 
carjacking suspect, whom several City of Alexandria police 

officers had pursued into the District near a high school and a 

vocational school. An officer entered an alley with a police dog, 

announced that she would release her dog unless the person exited 

the alley, and released the dog when she neither heard nor saw 

anyone. The dog went from the alley to an adjacent yard, went 

under a car, and pulled Shelton from under the car while holding 

Shelton's arm in his mouth. Although the officers had been 

informed that the suspect was armed, they found no gun on Shelton. 

They searched for the gun using another dog. 

 Another officer put handcuffs on Shelton, walked him to the 

street, and questioned him about his identity in the presence of 

the Alexandria police officers. The Alexandria officers 

identified Shelton as the man they pursued into the District. 

After Shelton indicated he was "going to pass out," the officer 

allowed him to sit and continued to talk to him. The officer 

testified that Shelton had small lacerations on his head but was 

"very coherent." When the officer asked Shelton "where the gun 

was," Shelton responded, "I didn't have a gun when I took the 

cab," and then said "[h]e wanted to talk to a lawyer." The 

officer testified that he inquired about the gun because he "was 

concerned about it because it's a residential neighborhood and 

there's a school a block away and we needed to start to track and 

find the weapon so somebody else wouldn't find it and hurt 

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themselves." He said he "wanted to make sure that a child 

wouldn't find the weapon." 

 Citing New York v. Quarles, 467 U.S. 649 (1984), which 

recognized a narrow "'public safety' exception to the requirement 

that Miranda warnings be given before a suspect's answers may be 

admitted into evidence," id. at 655, the trial judge denied 

Shelton's motion to suppress the statement. As a part of his 

ruling, the trial judge also found that Shelton's statement was 

voluntary, that the police had not overborne his will, and that 

Shelton was aware of his Miranda rights because of prior 

encounters with the police. 

 On the day of trial, Shelton pled guilty to the charge of 

robbery. In so doing, he signed a written plea agreement waiving 

the right to object to the admissibility of any evidence against 

him on that charge. After the prosecutor proffered the facts 

supporting the robbery charge, including Shelton's identity as the 

robber, Shelton agreed to those facts. Before his trial on the 

carjacking charge, Shelton's counsel stated, "I would like before 

the trial starts [to] note my objection to [the trial judge's] 

decision [on the motion to suppress] and also point out that by 

that statement coming in [Shelton] essentially has no identity 

defense any longer and, as a result, has entered a plea which 

essentially stipulated to his identity and he won't challenge his 

identity at all. The reason that he's doing that is because of 

the ruling that [the] Judge . . . handed down last Thursday." 

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 At the bench trial on the carjacking charge, a taxi driver 

testified that at 3:00 a.m. on February 19, 1999, a man entered 

his taxi in Alexandria. The man put his arm around the driver's 

neck, said he had a gun, demanded the driver's money, and 

threatened to shoot the driver if he balked. As instructed by the 

robber, the driver put his money on top of the seat. The robber 

then ordered the driver out of the taxi and drove away. The 

driver testified that the robber wore a dark jacket with light 

stripes. The driver also testified that he did "not [get a] good 

look" at the robber and could not say Shelton was the robber. He 

further testified that he did not see a gun. Immediately after 

the driver exited the taxi, he called the police using his 

cellular telephone. 

 A police officer testified that about 3:17 a.m. he received a 

report of the incident, which described the taxi and indicated the 

robber was armed. Within seconds, he saw the taxi on the 

interstate highway heading north toward the District. The officer 

testified that only one man was in the taxi and that the man wore 

a dark jacket with tan or white stripes. When the officer 

activated his emergency lights and siren, the taxi accelerated and 

continued to the District. 

 In the District, while being pursued by both District and 

Alexandria police, the man stopped the taxi. The Alexandria 

officer exited his car as the man exited the taxi. They stared at 

each other "for a second" before the man ran. The officer 

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identified Shelton as the man who exited the taxi and testified 

that he chased Shelton until he disappeared. Fifteen minutes 

later, a District police officer appeared with Shelton in 

handcuffs. The officer testified that later, when the District 

officer asked Shelton where the gun was, Shelton responded, "I 

didn't have a gun when I took the cab." 

 The District officer, who handcuffed Shelton after the dog 

pulled him from under the car, testified that when he was walking 

Shelton from the yard to the street, Shelton was trembling and 

"said that he was about to pass out." The officer put Shelton on 

the ground to sit. As he began to question Shelton about his 

identity, he heard another officer yell, "Where is the gun?" The 

District officer who had custody of Shelton then asked Shelton 

"where the gun was." The officer testified that Shelton was 

apprehended in a residential neighborhood in the vicinity of a 

school. 

 Shelton testified in his defense and admitted he robbed the 

driver. He testified, however, that he "didn't have any kind of 

weapon whatsoever. No knives, no guns nothing." He testified 

that he forcefully demanded the driver's money but without making 

any threats, that the driver dropped the money on the floor of the 

taxi and ran, and that he then drove away in the driver's taxi. 

 The trial judge convicted Shelton of carjacking. He 

sentenced Shelton to fifteen years in prison and suspended ten 

years of that sentence. On Shelton's guilty plea to robbery, the 

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trial judge sentenced him to five years in prison, suspending two 

years and ordering the sentence to be served consecutive to the 

carjacking sentence. 

 II. 

 Shelton contends that his statement, "I didn't have a gun 

when I took the cab," was obtained in violation of Miranda and 

that, consequently, it was improperly used at trial to prove his 

identity. The Commonwealth counters that, by pleading guilty to 

the robbery indictment, Shelton waived any objection he might have 

had to the admissibility of the statement, that Shelton's 

statement was admissible pursuant to Quarles, and that if error 

was committed it was harmless. 

 Shelton's notice of appeal specifies an appeal from both 

the robbery and carjacking convictions. Shelton's counsel 

agreed at oral argument, however, that this appeal concerns only 

the conviction for carjacking pursuant to Code § 18.2-58.1. 

Indeed, we note that the record does not reflect that Shelton's 

guilty plea to the robbery indictment was a conditional plea. 

See Code § 19.2-254 (providing in part that "[w]ith the approval 

of the court and the consent of the Commonwealth, a defendant 

may enter a conditional plea of guilty in a felony case, 

reserving the right, on appeal from the judgment, to a review of 

the adverse determination of any specified pretrial motion"). 

Thus, this is not the case where, "[p]ursuant to Code 

§ 19.2-254, [Shelton] reserved [his] right to appeal that 

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portion of the . . . judgment denying [his] motion to suppress." 

Polston v. Commonwealth, 255 Va. 500, 501, 498 S.E.2d 924, 924 

(1998). The plea agreement preserves no objections to the 

admission of the statement, and the guilty plea to the robbery 

indictment was not conditioned upon an unsuccessful appeal of 

the motion to suppress. 

 "Where a conviction is rendered upon . . . a [guilty] plea 

and the punishment fixed by law is in fact imposed in a 

proceeding free of jurisdictional defect, there is nothing to 

appeal." Peyton v. King, 210 Va. 194, 196-97, 169 S.E.2d 569, 

571 (1969). See also McMann v. Richardson, 397 U.S. 759, 768-71 

(1970) (holding that a competently counseled accused who alleges 

that he unconditionally pleaded guilty because of a prior 

coerced confession fails to raise a valid claim that his guilty 

plea was not voluntary or intelligently made). Therefore, the 

robbery conviction is not properly before us. Moreover, this 

appeal raises no issue concerning the robbery guilty plea 

because it was not placed in issue at the carjacking trial. 

 III. 

 The following principles guide our analysis of this case: 

 When police ask questions of a suspect in 

custody without administering the required 

warnings, Miranda dictates that the answers 

received be presumed compelled and that they 

be excluded from evidence at trial in the 

State's case in chief. The [Supreme] Court 

has carefully adhered to this principle, 

permitting a narrow exception only where 

pressing public safety concerns demanded. 

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Oregon v. Elstad, 470 U.S. 298, 317 (1985) (citing Quarles, 467 

U.S. at 655-56. For purposes of Miranda, "the ultimate inquiry 

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

freedom of movement' of the degree associated with a formal 

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

curiam) (citation omitted). 

 The evidence establishes that Shelton was in custody after 

he fled from the police and was detained in the District of 

Columbia. He was initially detained by the police at gunpoint 

and placed in handcuffs. Several police officers surrounded him 

after they had chased him because he was a suspect in a criminal 

offense. These facts are sufficient to bring this case within 

the general scope of Miranda. 

 In Quarles, a woman reported to a police officer that a man 

with a gun had raped her and entered a grocery store. In the 

store, the officer saw a man matching the description of the 

suspect and handcuffed him. After a frisk search revealed no 

gun, the officer asked him where the gun was located. The man 

nodded toward some empty cartons and responded, "the gun is over 

there." 467 U.S. at 652. The Supreme Court held that "there is 

a 'public safety' exception to the requirement that Miranda

warnings be given before a suspect's answers may be admitted 

into evidence, and . . . the availability of that exception does 

not depend upon the motivation of the individual officers 

involved." Id. at 655-66. This exception is established when 

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the evidence proves "an objectively reasonable need to protect 

the police or the public from any immediate danger associated 

with [a] weapon." Id. at 659 n.8. Applying that exception, the 

Court ruled that neither the gun nor the statement needed to be 

suppressed. Id. at 659. 

 In denying Shelton's motion to suppress, the trial judge 

found that the facts were sufficient to prove the Quarles

exception. The trial judge's finding "that a threat to public 

safety temporarily suspends the obligation to give Miranda

warnings . . . is a mixed question of fact and law that 

implicates constitutional rights . . . [and] is subject to de 

novo review." United States v. Brady, 819 F.2d 884, 886 (9th 

Cir. 1987). Moreover, in our review of the trial judge's ruling 

on the motion to suppress "we must examine the records of both 

the suppression hearing and the trial to determine whether the 

evidence was [properly admitted]." Brown v. Commonwealth, 33 

Va. App. 296, 306, 533 S.E.2d 4, 8 (2000). 

 The evidence proved that when the officer asked Shelton 

where the gun was located, the officer had been told the suspect 

was armed. The officer also knew Shelton had fled in the taxi 

and later hid under a car in a residential neighborhood in the 

vicinity of two schools. The officer frisked Shelton and found 

no gun. When the officer who was obtaining identifying 

information from Shelton asked about the gun, other officers 

were using a police dog, trained in detection of weapons, to 

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search for it. These circumstances do not suggest that the 

officer asked the question to elicit testimonial evidence. 

Rather, these circumstances establish "an objectively reasonable 

need to protect . . . the public from any immediate danger." 

Quarles, 467 U.S. at 659 n.8. 

 The potential presence of a discarded gun in a residential 

neighborhood near a school is an immediate threat to public 

safety. The circumstances posed the risk that a resident of the 

neighborhood or a school child "might later come upon [the 

gun]." Id. at 657. As in Quarles, "[t]he police in this case, 

in the very act of apprehending a suspect, were confronted with 

the immediate necessity of ascertaining the whereabouts of a gun 

which they had every reason to believe the suspect had just 

. . . discarded." Id. at 657. The evidence, thus, proved that 

this was "a situation in which police officers ask[ed] questions 

reasonably prompted by a concern for the public safety." Id. at 

656. Accordingly, we hold that the facts established the narrow 

exception to the Miranda requirements. 

 Shelton also contends the evidence proved actual coercion 

from police misconduct. In Quarles, the Court implied that a 

statement otherwise coming within the "public safety" exception 

will be excluded if it is actually coerced. See 467 U.S. at 658 

n.7 (stating that "absent actual coercion by the officer, there 

is no constitutional imperative requiring the exclusion of the 

evidence"). Citing United States v. Rullo, 748 F.Supp. 36 (D. 

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Mass. 1990), Shelton argues that his statements were involuntary 

and the product of physical abuse by the police. 

 In Rullo, the evidence proved that the police were pursuing 

Rullo from the site of a drug transaction when they suspected he 

shot at them. 748 F. Supp. at 38. When ten officers 

apprehended Rullo, he submitted to the detention. Nonetheless, 

the officers "punched and kicked . . . [and] cursed at him." 

Id. at 39. During the beatings, the officers said, "Give us the 

gun and we'll let you up." Id. Suppressing Rullo's statement 

identifying the location of the gun, the trial judge found that 

Rullo's will was overborne by the coercive police misconduct. 

Id. at 41-42. 

 In this case, however, no evidence proved police misconduct 

in apprehending or questioning Shelton. It did prove that after 

Shelton abandoned the taxi at 3:30 a.m. and fled, he secreted 

himself in the yard of a residence. An officer shouted for 

Shelton to come from his hiding place and received no response. 

The officer then released her police dog, which located Shelton 

under a car. When Shelton refused to leave, the dog bit him in 

the process of detaining him and dragged him by his arm from 

under the car. These circumstances do not establish unwarranted 

force or misconduct by the police. Shelton was injured when the 

dog located him after he refused to reveal himself in the 

darkness. The capture by the dog was a reasonable response to 

Shelton's refusal to reveal himself in the darkness. 

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 Once the dog pulled Shelton from under the car, the police 

exerted no unlawful coercion upon him. Shelton was removed from 

the yard to the nearby street and seated on the ground. The 

evidence proved no overbearing conduct or coercion during the 

questioning. 

 For these reasons, we affirm the conviction. 

 Affirmed. 

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