COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Humphreys and Senior Judge Overton 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION*BY 

v. Record No. 3383-02-4 JUDGE ROBERT P. FRANK 

 JUNE 10, 2003 

CHARLES EDWARD HOOKS 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

R. Terrence Ney, Judge 

 Eugene Murphy, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

briefs), for appellant. 

 Robert C. Whitestone (Whitestone, Brent, 

Young & Merril, on brief), for appellee. 

 Charles Edward Hooks (appellee) was indicted for possession 

of cocaine with the intent to distribute, in violation of Code 

§ 18.2-248. Appellee filed a pretrial motion to suppress the 

statements he made to the police, alleging the statements were 

obtained after an illegal seizure. The trial court granted the 

motion. The Commonwealth appeals, contending the trial court 

erred in granting the motion. See Code § 19.2-398. For the 

reasons stated, we affirm the trial court's ruling. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
BACKGROUND

 Pursuant to Rule 5A:8, the following statement of facts was 

filed in lieu of a transcript: 

On March 21, 2002, officers of the Fairfax 

County Police Department Vice Squad were 

watching the defendant's home before 

executing a search warrant on the home. 

Police saw the defendant leave the house, 

get into his vehicle, and drive away. At 

8:10 p.m., several miles from his house, 

Officer S. R. Wallace, at the direction of a 

vice squad officer, stopped the defendant 

for driving on a suspended license. 

Defendant's license had been suspended by 

the Department of Motor Vehicles in early 

2002 for insurance monitoring. 

Shortly after the defendant was stopped he 

was issued a summons for driving on a 

suspended license and for having an open 

container in the vehicle. The defendant and 

his vehicle were searched and no drugs or 

weapons were found in defendant's vehicle or 

on his person. Then, instead of being 

released on the summonses, defendant was 

placed in handcuffs in the back of a police 

cruiser and transported to the Reston 

District Station for questioning. 

The search warrant here involved was 

executed at defendant's home at 8:35 p.m. 

At some time between 9:30 and 10:00 p.m. the 

defendant made incriminating statements. 

As justification for defendant's unlawful 

seizure, Detective J. A. Williams at the 

preliminary hearing testified ". . . the 

only way legally that we could hold him 

would be for investigative detention." 

Additional reasons for the seizure were 

given as "officer safety" and "exigent 

circumstances." 

There was no evidence that the police 

officer who issued a summons to the 

defendant for driving on [a] suspended 

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[license] believed that the defendant would 

not return to traffic court, nor was there 

any evidence that the defendant had at any 

time failed to appear in court. Moreover 

there was no suggestion nor was there 

evidence that the defendant was arrested 

because the police had probable cause to 

believe that the defendant committed prior 

drug related offenses. 

 After argument and briefing, the trial court granted the 

motion to suppress, finding the police "lacked probable cause and 

any reasonable suspicion." The court noted: 

After a summons has been issued to an 

individual, absent other circumstances –- 

none of which were present here –- he or she 

should be free to go. The Fairfax County 

Police lacked reasonable suspicion that 

Hooks was engaged in any illegal activity. 

Therefore, Hooks' [sic] detention was an 

illegal seizure and any statements made by 

Hooks while illegally detained must be 

suppressed. 

ANALYSIS

 The Commonwealth contends appellee's Fourth Amendment rights 

were not violated, arguing that an arrest which is unlawful under 

Code § 19.2-74 does not necessarily equate with a violation of 

appellee's constitutional rights.1 Assuming this position is 

correct, it misses the point of the trial court's ruling. 

 On appeal, this Court reviews the evidence, and the 

inferences fairly deducible from that evidence, in the light most 

favorable to the party prevailing below. Commonwealth v. 

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). 

Although determinations of probable cause are reviewed de novo, 

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Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 

(2000), where the trial court has granted a motion to suppress, 

that decision "will not be disturbed unless it is plainly wrong 

or without evidence to support it." Commonwealth v. Thomas, 23 

Va. App. 598, 609, 478 S.E.2d 715, 720 (1996). 

 Appellee was served with two summonses. At that point, as 

the trial court noted, all constitutional and statutory 

requirements were satisfied, and the encounter should have ended 

or continued voluntarily. See United States v. Pruitt, 174 F.3d 

1215, 1219-20 (11th Cir. 1999), limited by United States v. 

Purcell, 236 F.3d 1274 (2001). Instead, appellee was handcuffed 

and taken to the police station. This seizure, after the 

issuance of the summonses, created a new Fourth Amendment issue. 

 In Reittinger, for example, a driver was stopped for having 

only one operable headlight on his van. 260 Va. at 234, 532 

S.E.2d at 26. While the officer legitimately stopped the van, 

after he decided against issuing a citation and told the driver 

that he was free to go, a new Fourth Amendment issue arose. Id.

at 236-37, 532 S.E.2d at 27-28. Once an officer has concluded 

his investigation of the original violation, new reasonable 

suspicion or probable cause must develop to allow an officer to 

continue holding an individual. See Thomas, 23 Va. App. at 613, 

487 S.E.2d at 722 (noting the K-9 search unit arrived "before the 

completion of the traffic stop" and police had additional bases 

"to suspect criminal activity" beyond the reason for the initial 

stop); Deer v. Commonwealth, 17 Va. App. 730, 736, 441 S.E.2d 33, 

 1

 The Commonwealth does not argue that application of the 

exclusionary rule to the statement was inappropriate if appellee 

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37 (1994) ("[O]nce [the officer] had completed his investigation 

and issued the citation, the continued detention of Deer and the 

vehicle required additional justification to satisfy the 

requirements of the Fourth Amendment."). 

 In Deer, this Court found a driver was illegally seized 

under circumstances similar to those in the present case. The 

officer issued a summons to Deer, concluding his investigation of 

the traffic offense. Id. However, when Deer refused to allow a 

search of his vehicle, the officer "effected a seizure by stating 

that he would detain the vehicle for up to an hour to await the 

arrival of a K-9 unit." Id. With nothing more than an inchoate 

hunch, the officer seized Deer. Id.

 As the trial court here explained, nothing during the 

traffic stop provided Officer Wallace with additional reasonable 

suspicion or probable cause.2 The Commonwealth does not contend 

that additional investigation into the traffic offense was 

required or appropriate, but instead argues that the original 

probable cause survived the issuance of the summonses. The 

Commonwealth contends Deer is distinguishable because Officer 

Wallace always intended to detain appellee, whereas the officer 

in Deer initially intended to release Deer. Neither the facts 

nor the analysis in Deer support such a distinction, which 

 

was unconstitutionally seized. 

2

 The Commonwealth does not argue that any of the facts 

surrounding the issuance and execution of the search warrant for 

appellee's house provided the police with enough information to 

seize appellee. The search warrant is not part of the record on 

appeal. 

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emphasized the conclusion of the initial detention with the 

issuance of a citation. Id.

 The Commonwealth also argues that Atwater v. City of Lago 

Vista, 532 U.S. 318 (2001), controls. However, Atwater is 

distinguishable on its facts. In Atwater, the defendant was 

stopped for a minor traffic offense, punishable by a fine only. 

Id. at 323. The police officer immediately arrested Atwater 

under a Texas law that specifically authorized arrest for this 

particular traffic offense, although the law also permitted the 

issuance of a citation in lieu of arrest. Id. at 323-24. The 

issue before the Supreme Court was whether the Fourth Amendment 

limits a police officer's authority to arrest without a warrant 

for minor criminal offenses. Id. at 326. The Supreme Court 

concluded such an arrest is not a violation of the Fourth 

Amendment. Id. at 354. 

 The Atwater Court was not confronted with a post-issuance of 

summons detention. Atwater was not issued a citation and then 

arrested. Therefore, the opinion does not address the 

circumstances before this Court. 

 While Officer Wallace initially had probable cause to stop 

appellee for a traffic violation, he concluded that detention 

when he issued the summonses. Thus, he did not have reasonable 

suspicion or probable cause to continue his seizure of appellee. 

The seizure, therefore, violated the principles of the Fourth 

Amendment, and the statement given while appellee was held 

constituted "fruit of the poisonous tree." See Walls v. 

Commonwealth, 2 Va. App. 639, 651, 347 S.E.2d 175, 182 (1986). 

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 We affirm the trial court's grant of the motion to suppress 

and remand for further proceedings consistent with this opinion. 

Affirmed and remanded.

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