PRESENT: All the Justices 

COMMONWEALTH OF VIRGINIA 

 OPINION BY 

v. Record No. 090557 JUSTICE S. BERNARD GOODWYN 

 January 15, 2010 

TAVARES LAMONT BROWN 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal we consider whether the Court of Appeals 

may reverse a circuit court’s judgment on a basis not argued on 

appeal by the appellant. 

Background

On October 24, 2006, Officer Morris Patrick Warner 

(Warner) of the Richmond Police Department received a police 

radio dispatch regarding two individuals selling drugs near a 

pedestrian bridge that crosses over the Downtown Expressway. 

As he walked up the ramp to the pedestrian bridge, Warner saw 

Tavares Lamont Brown (Brown) and Scott Pullen (Pullen) on the 

ramp. Pullen was urinating and Brown was drinking from a 40-

ounce bottle of beer. They were the only two people in the 

area and they were standing about six feet apart. Warner did 

not observe them communicating with each other. 

Having observed the men violating the law, Warner, who was 

alone, “was going to try to escort them back to [his] vehicle 

where [he] could talk to them more.” Warner spoke to both men; 

Brown bent over, placed the beer bottle on the ground, and 
slowly attempted to screw the cap on with his left hand. As 

Brown was doing so, his right hand disappeared behind his back. 

Warner “saw movement with [Brown’s] arm, not really at his 

right pocket but more at his waistline in the back or towards 

his back right pocket.” Warner told Brown to stop and stand 

up. 

Warner placed Brown in handcuffs because of his “furtive 

movements” and Warner’s situation as one officer dealing with 

two suspects. The trio then walked back to Warner’s vehicle. 

Warner conducted “pat down” searches on both individuals. 

He detected no suspected contraband or weapons on Brown’s 

person. On Pullen, however, Warner found a folded lottery slip 

that contained what appeared to be cigarette ashes. 

When a “backup” officer arrived, Warner asked that officer 

to stay with Brown and Pullen while Warner went back to the 

area where the two men had been standing. Warner recalled that 

he had observed a folded lottery slip on the ground there, 

between the two men. Near where Brown and Pullen had been 

standing, Warner found a folded lottery ticket, which contained 

what appeared to be a small rock of crack cocaine. Warner 

placed Brown and Pullen under arrest. In a search incident to 

arrest, Warner found a large rock of what appeared to be crack 

cocaine and a razor blade on Brown’s person.

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Brown was charged with possession of cocaine with the 

intent to distribute in violation of Code § 18.2-248. Brown 

filed a motion to suppress in the Circuit Court of the City of 

Richmond. At the pre-trial hearing on the motion to suppress, 

Brown argued that Warner detained and arrested him in violation 

of the Fourth Amendment. The circuit court denied the motion 

to suppress, finding that Warner did not violate Brown’s 

constitutional rights by detaining and then arresting him on 

suspicion of possessing and/or distributing cocaine. 

After a bench trial, Brown was found guilty of possession 

with intent to distribute cocaine and sentenced to ten years 

incarceration, with four years and nine months suspended. 

Brown appealed to the Court of Appeals.

Brown’s petition for appeal to the Court of Appeals set 

forth the following question presented: “Did the Circuit Court 

err in not suppressing the evidence found in this case when the 

detention of Brown . . . constituted a violation of the Fourth 

Amendment?”∗

 In the petition for appeal, Brown argued that his 

detention by Warner violated the Fourth Amendment because 

Warner did not have a reasonable suspicion that supported his 

continued detention of Brown. In its order granting Brown’s 

 ∗

 Brown’s petition for appeal contained a second question 

presented, which the Court of Appeals denied. The denied 

question presented is not relevant to the present case. 

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appeal, the Court of Appeals more broadly referred to the 

question presented as “[w]hether the trial court erred by 

denying appellant’s motion to suppress.” 

In his subsequent brief in support of the appeal granted 

by the Court of Appeals, Brown argued that “[t]he Circuit Court 

erred in not suppressing the evidence found . . . when the 

initial stop of the defendant constituted a seizure of his 

person in violation of the Fourth Amendment.” Brown 

acknowledged in his brief that Warner had a right to detain him 

long enough for Warner to write a summons for drinking in 

public. Brown argued, however, that Warner no longer had a 

basis to detain Brown after taking Brown to Warner’s police car 

and conducting a pat down search that revealed no weapons. 

Brown claimed that, after that point in time, his continued 

detention was without reasonable suspicion and in violation of 

the Fourth Amendment, and the evidence obtained as a result of 

the continued detention by Warner was subject to exclusion. 

The Commonwealth’s brief responded to Brown’s argument that 

Warner did not have reasonable suspicion sufficient to support 

his continued detention of Brown. There was no argument or 

authority provided by either Brown or the Commonwealth 

concerning whether there was probable cause to arrest Brown. 

In an unpublished opinion, the Court of Appeals held that 

Brown’s “ongoing detention for further investigation was 

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reasonable under the circumstances.” Brown v. Commonwealth, 

Record No. 0339-08-2 (Jan. 13, 2009). However, the Court of 

Appeals reversed Brown’s conviction on the basis that Warner 

did not have probable cause to arrest Brown “for possession of 

the cocaine found on the ground in a folded lottery slip.” Id.

This Court granted the Commonwealth an appeal.

Analysis

The Commonwealth argues that the Court of Appeals erred in 

reversing the circuit court’s judgment on a basis not argued to 

the Court of Appeals and in ruling that the police lacked 

probable cause to arrest Brown. The Commonwealth asserts that 

Brown argued in his petition and briefs to the Court of Appeals 

that his continued detention by Warner violated Brown’s rights 

under the Fourth Amendment. It claims that Brown, by not 

asserting the matter by petition, brief or argument before the 

Court of Appeals, abandoned the argument made before the 

circuit court that Warner lacked probable cause to arrest 

Brown. Noting that the Court of Appeals rejected Brown’s 

continued detention argument, the Commonwealth requests the 

reinstatement of the circuit court’s judgment.

Responding, Brown asserts that the Court of Appeals did 

not err in ruling that the police lacked probable cause to 

arrest him. Brown argues that he did not abandon the argument 

he made at trial concerning lack of probable cause for his 

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arrest. Brown asserts that his question presented informed the 

Court of Appeals that his appeal involved a Fourth Amendment 

violation, and notes that the Commonwealth did not object to 

the way the Court of Appeals broadly characterized the question 

presented. He also points out that at one point in his reply 

brief to the Court of Appeals he stated that Warner lacked 

“reasonable suspicion or probable cause” to detain Brown. 

In resolving whether the Court of Appeals decided Brown’s 

case on a basis not argued on appeal, we must interpret Rule 

5A:12. Because this issue concerns a question of law, we 

review the lower court’s decision de novo. Moore v. 

Commonwealth, 276 Va. 747, 753, 668 S.E.2d 150, 153 (2008). 

 Rule 5A:12 provides in part as follows: “Only questions 

presented in the petition for appeal will be noticed by the 

Court of Appeals.” Rule 5A:12(c); see also Rule 5:17(c) (“Only 

errors assigned in the petition for appeal will be noticed by 

this Court.”). This Court has previously reversed the Court of 

Appeals when it based its holding on arguments not in the 

petition for appeal. Clifford v. Commonwealth, 274 Va. 23, 25-

26, 645 S.E.2d 295, 297 (2007) (sustaining the Commonwealth’s 

cross-error that the appellant had abandoned the rationale 

adopted by the Court of Appeals). 

We noted in Clifford, id. at 25, 645 S.E.2d at 297, that 

in regard to Rule 5A:12(c)’s Supreme Court Rule counterpart, 

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Rule 5:17(c), this Court has stated that “we will not consider 

. . . arguments [that] were not made in the petition for 

appeal.” West v. Commonwealth, 249 Va. 241, 243 n.1, 455 

S.E.2d 1, 2 n.* (1995); see also Richardson v. Moore, 217 Va. 

422, 423 n.*, 229 S.E.2d 864, 865 n.1 (1976) (expressing no 

opinion on a question not raised on appeal). In Clifford, we 

also considered that the Court of Appeals had likewise 

construed its Rule 5A:12 to mean that “ ‘[o]nly those arguments 

presented in the petition for appeal and granted by this Court 

will be considered on appeal.’ ” 274 Va. at 25, 645 S.E.2d at 

297 (quoting McLean v. Commonwealth, 30 Va. App. 322, 329, 516 

S.E.2d 717, 720 (1999) (en banc)). “[A]n issue abandoned at 

trial may not be resurrected on appeal, and an appellate court 

may not ‘recast’ an argument made in a lower court into a 

different argument upon which to base its decision.” Clifford, 

274 Va. at 25, 645 S.E.2d at 297. 

The relevant question presented by Brown in his petition 

for appeal was, “Did the Circuit Court err in not suppressing 

the evidence found in this case when the detention of Brown 

. . . constituted a violation of the Fourth Amendment?” 

Brown’s question presented concerned whether the police had 

reasonable suspicion to detain Brown, not whether they had 

probable cause to arrest him. 

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In granting Brown’s appeal, the Court of Appeals restated 

Brown’s question presented as “[w]hether the trial court erred 

by denying appellant’s motion to suppress.” It appears that 

Brown’s question presented, as amended by the Court of Appeals, 

without objection, in its order granting the appeal, may have 

been broad enough to include an argument that Warner lacked 

probable cause to arrest Brown. However, Brown never made that 

argument to the Court of Appeals as a basis for reversing the 

circuit court’s judgment. 

Rule 5A:20(e) states that an opening brief must contain: 

“The principles of law, the argument, and the authorities 

relating to each question presented.” In his brief in support 

of the appeal in the Court of Appeals, Brown argued and 

provided authority only for the position that the circuit court 

erred in not suppressing the evidence “when the initial stop of 

the defendant . . . [was] in violation of the Fourth 

Amendment.” Brown did not allege as error that the circuit 

court found the officer had probable cause to arrest Brown, nor 

did he provide any argument or authority, as required by Rule 

5A:20(e) in support of that allegation. See Rule 5A:20(e). 

The Court of Appeals can only consider issues properly 

brought before it by the litigants. Clifford, 274 Va. at 25, 

645 S.E.2d at 297; Rule 5A:12. Though the Court of Appeals 

broadly rephrased Brown’s question presented, the probable 

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cause to arrest argument was neither in Brown’s question 

presented nor briefed in the petition for appeal or in any 

briefs filed by either party. Even though Brown raised the 

probable cause argument before the circuit court, the Court of 

Appeals cannot resurrect arguments Brown abandoned on appeal. 

Clifford, 274 Va. at 25, 645 S.E.2d at 297. The Court of 

Appeals also cannot “recast” Brown’s arguments concerning his 

initial detention into a challenge on appeal to the probable 

cause for his arrest. Id. Moreover, the fact that Brown 

briefly mentioned the words “probable cause” in his petition 

does not change the fact that neither party asserted a probable 

cause to arrest argument before the Court of Appeals. Thus, 

the Court of Appeals erred by considering the probable cause 

issue and reversing the circuit court’s judgment based on 

Warner’s lack of probable cause to arrest Brown. 

Accordingly, the judgment of the Court of Appeals is 

reversed. This case is remanded to the Court of Appeals with 

direction to enter an order affirming the judgment of the 

circuit court. 

Reversed and remanded.

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