COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bray 

Argued at Richmond, Virginia 

SHAWN AUBREY JONES 

 MEMORANDUM OPINION* BY 

v. Record No. 2756-97-2 JUDGE LARRY G. ELDER 

 NOVEMBER 17, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY 

Charles L. McCormick, III, Judge 

 Buddy A. Ward, Public Defender (Joseph M. 

Teefey, Jr., Assistant Public Defender; 

Office of the Public Defender, on brief), for 

appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Shawn Aubrey Jones (appellant) appeals from his bench trial 

conviction for driving under the influence of alcohol in 

violation of Code § 18.2-266(ii). On appeal, he contends that 

the community caretaker exception to the warrant requirement did 

not justify the stop of his vehicle and that the trial court, 

therefore, erroneously denied his motion to suppress. The 

Commonwealth contends that the community caretaker doctrine 

justified the stop and that, even if it did not, the officer had 

probable cause to detain appellant for speeding. For the reasons 

that follow, we uphold the trial court's denial of appellant's 

motion to suppress and affirm his conviction. 

 

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

designated for publication. 
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 I. 

 FACTS 

 At about 9:30 p.m. on April 5, 1997, Officer Nelson Watson 

observed a vehicle pass him on Main Street going in the opposite 

direction. The driver, whom Watson recognized as appellant, "had 

his left arm out the window waving and was hollering in 

[Watson's] direction . . . as he passed [Watson]." Watson saw no 

other vehicles or pedestrians in the area at that time. Watson 

turned his vehicle around, pulled in behind appellant to follow 

him and activated his lights in order to make a stop. Watson 

testified that he executed the stop because of 

 concern . . . that [appellant] was asking for 

assistance. Several times in my past career 

I've had . . . the drivers [of vehicles] wave 

me over, wave at me [when] they were either 

heading to a problem where they wanted 

assistance . . . or they needed assistance in 

the vehicle[.] [A]t that time that was my 

concern, that he needed assistance. 

 "As [Officer Watson] initiated the light," appellant's 

vehicle "sped up to approximately 40 [miles per hour] in a posted 

25 [mile-per-hour] zone" and made a right turn at the same speed. 

 Watson then radioed for back-up. After traveling "a good 500 

yards" at that speed, appellant's vehicle was forced to slow down 

because several people were standing in the road. After 

proceeding past the pedestrians, appellant pulled over and 

stopped. 

 In response to Officer Watson's inquiry, appellant said that 

nothing was wrong. However, Officer Watson "detected the odor of 
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alcohol at the vehicle window." He asked for appellant's 

driver's license, but appellant said he did not have it with him. 

 Two to three hours earlier, Officer Watson had seen appellant 

standing with a beer in his hand in a yard in which was parked 

the car appellant was driving at the time of the stop. Due to 

this fact, coupled with the odor of alcohol coming from 

appellant's vehicle, Watson asked appellant to get out of the car 

and questioned him regarding his alcohol consumption. Appellant 

reported that he had drunk a six-pack of beer in the previous 

one-and-one-half hours, finishing his last beer about thirty 

minutes prior to the stop. 

 Watson administered several field sobriety tests, which 

appellant did not pass satisfactorily, and Watson placed him 

under arrest at 9:35 p.m. A breathalyzer administered at 

10:14 p.m. registered a blood alcohol content of 0.14 grams per 

210 liters of breath. Watson charged appellant for driving under 

the influence. He did not charge him for speeding. 

 Appellant moved to suppress, contending that Watson lacked 

objective facts providing reasonable suspicion of criminal 

activity to support the stop and that stopping appellant under 

the community caretaker doctrine to see if he needed assistance 

was merely a pretext to investigate whether appellant was drunk. 

 If Watson had wanted to stop appellant under the community 

caretaker doctrine, appellant argued, he should have followed 

appellant without activating his lights in order to gather 
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additional information showing that appellant needed assistance. 

 The Commonwealth's attorney responded that he was "not even 

arguing a Terry stop in this, we are arguing our community 

caretaker." The trial court ruled, 

 I don't necessarily believe this is a 

pretextual stop. I'm not convinced that's 

what the situation was. I think the officer 

was attempting to render assistance because 

he thought he was needed, and then he was 

frustrated in doing so by the fact that 

[appellant] sped up, and tried to get away 

from him. 

* * * * * * * 

 Well, I don't think this officer would 

have ever stopped this man if he hadn't stuck 

his arm out of the window and carried on like 

that. . . . [V]iewing all of the 

circumstances, I think the officer acted 

reasonably . . . , so I'm going to deny the 

motion. 

The trial court then found appellant guilty of DUI but suspended 

execution of the sentence pending the outcome of this appeal. 

 II. 

 ANALYSIS 

 At a hearing on a defendant's motion to suppress, the 

Commonwealth has the burden of proving that a warrantless search 

or seizure did not violate the defendant's Fourth Amendment 

rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 

S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App. 

671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the 

evidence in the light most favorable to the prevailing party, 

granting to it all reasonable inferences fairly deducible 
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therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 

1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial 

court's findings of historical fact unless 'plainly wrong' or 

without evidence to support them[,] and we give due weight to the 

inferences drawn from those facts by resident judges and local 

law enforcement officers." McGee v. Commonwealth, 25 Va. App. 

193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. 

United States, 517 U.S. 690, 699 (1996)). However, we review de

novo the trial court's application of defined legal standards 

such as probable cause and reasonable suspicion to the particular 

facts of the case. See Shears v. Commonwealth, 23 Va. App. 394, 

398, 477 S.E.2d 309, 311 (1996); see also Ornelas, 517 U.S. at 

699. 

 Under these standards, we hold that the officer had probable 

cause to stop appellant for speeding. Therefore, the trial court 

did not err in denying appellant's motion to suppress and 

convicting him for violating Code § 18.2-266(ii). Because we 

hold the stop proper based on probable cause to believe that 

appellant was speeding, we do not address the community caretaker 

issue. 

 A police officer may conduct an investigatory stop of a 

motor vehicle if he has at least "articulable and reasonable 

suspicion" that the operator is unlicensed, the vehicle is 

unregistered, or the vehicle or an occupant is otherwise subject 

to seizure for violating the law. See Murphy v. Commonwealth, 9 
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Va. App. 139, 143, 384 S.E.2d 125, 127 (1989) (citing Delaware v. 

Prouse, 440 U.S. 648, 663 (1979)). Of course, where an officer 

actually observes a driver violate the law, he has probable cause 

to stop the driver to issue a traffic citation or take him into 

custody. See May v. Commonwealth, 3 Va. App. 348, 354, 349 

S.E.2d 428, 431 (1986). 

 The Fourth Amendment requires only that an objectively

reasonable basis exist for a stop. See, e.g., Whren v. United 

States, 517 U.S. 806, 812-13 (1996). "'[T]hat the officer does 

not have the state of mind which is hypothecated by the reasons 

which provide the legal justification for the officer's action 

does not invalidate the action taken as long as the 

circumstances, viewed objectively, justify that action.'" Id. at 

813 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)) 

(emphasis added); see also Ohio v. Robinette, 519 U.S. 33, 38-39 

(1996); Limonja v. Commonwealth, 8 Va. App. 532, 537-38, 383 

S.E.2d 476, 479-80 (1989) (en banc). 

 "In order for a seizure to occur, an individual 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) (citing 

California v. Hodari D., 499 U.S. 621, 628 (1991)). A suspect is 

not seized within the meaning of the Fourth Amendment if he is 

fleeing from an officer attempting to apprehend him, and any 

evidence obtained during that flight is not the product of a 
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seizure. See Hodari D., 499 U.S. at 625-29 (upholding 

admissibility of drugs suspect discarded while fleeing from 

police because, even though police lacked reasonable suspicion 

for stop prior to flight, they had not effected a seizure at time 

suspect discarded drugs); see also Woodson v. Commonwealth, 245 

Va. 401, 406, 429 S.E.2d 27, 29-30 (1993). 

 Here, Officer Watson was justified in stopping appellant 

when he observed him speeding. Although Officer Watson activated 

his flashing lights and tried to stop appellant before appellant 

began speeding, appellant failed to comply with Officer Watson's 

show of authority and, therefore, he was not seized until after

Watson observed him speeding. Therefore, Officer Watson had 

probable cause for the seizure by the time appellant submitted to 

Watson's show of authority. That Officer Watson did not rely on 

appellant's speeding as the basis for his stop is irrelevant 

under this analysis, for facts known to Officer Watson made the 

stop of appellant for speeding objectively reasonable under the 

Fourth Amendment. 

 It also matters not that the Commonwealth did not assert 

probable cause to believe appellant was speeding as a basis for 

Officer Watson's stop. Rule 5A:18 does not require an appellee 

"to raise an issue at trial before it may be considered on appeal 

where the issue is not offered to support reversal of a trial 

court ruling." See, e.g., Driscoll v. Commonwealth, 14 Va. App. 

449, 451-52, 417 S.E.2d 312, 313 (1992). Here, the trial court 
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implicitly found that the officer's testimony was credible1

 and 

expressly ruled that the officer "acted reasonably" under "all of 

the circumstances." Regardless of whether the court relied on 

the probable cause analysis as a basis for its denial of the 

motion to suppress, it reached the proper result, and we uphold 

that result on appeal. See, e.g., id. at 452-53, 417 S.E.2d at 

313-14 (holding that appellate court may affirm judgment of trial 

court when it has reached right result for wrong reason). 

 For these reasons, we affirm appellant's conviction. 

 Affirmed. 

 

 1In ruling, the trial judge said, "I think the officer was 

attempting to render assistance . . . , and then he was 

frustrated in doing so by the fact that [appellant] sped up 

. . . ." 
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Benton, J., dissenting. 

 Appellate courts may apply the doctrine of "right result, 

wrong reason" only in "proper case[s]." See Eason v. Eason, 204 

Va. 347, 352, 131 S.E.2d 280, 283 (1963). This is not a proper 

case for the rule. We have previously held, for example, that 

the "right result for the wrong reason . . . rule . . . may not 

be used if the correct reason for affirming the trial court was 

not raised in any manner at trial." Driscoll v. Commonwealth, 14 

Va. App. 449, 452, 417 S.E.2d 312, 313-14 (1992). See also

Eason, 204 Va. at 352, 131 S.E.2d at 283. Furthermore, this rule 

may not be used "where, because the trial [judge] has . . . 

confined [the] decision to a specific ground, further factual 

resolution is needed before the right reason may be assigned to 

support the trial [judge's] decision." Driscoll, 14 Va. App. at 

452, 417 S.E.2d at 314. See also Sateren v. Montgomery Ward and 

Co., 234 Va. 303, 305-06, 362 S.E.2d 324, 326 (1987). 

 At trial, the Commonwealth's attorney informed the trial 

judge, "we are not even arguing a Terry stop in this, we are 

arguing our community caretaker; the officer . . . [has] not 

articulated that there may . . . [have been] criminal activity." 

 Relying solely upon the community caretaker argument advanced by 

the Commonwealth, the trial judge found that "the officer was 

attempting to render assistance because he thought he was 

needed." The Commonwealth advanced no other theory to support 

the officer's actions, and the trial judge made no findings or 
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rulings that support any other theory. 

 Moreover, because of the Commonwealth's attorney's 

concession that the officer had not articulated a suspicion of 

criminal activity, the record clearly proves that neither the 

issue of reasonable articulable suspicion nor the issue of 

probable cause to support the stop "was ever brought to the 

attention of the [trial judge], that [neither issue] was ever 

argued before [the judge], or that [the judge] was ever called 

upon, in any manner, to rule thereon." Eason, 204 Va. at 352, 

131 S.E.2d at 283. Thus, I would hold that this is not a proper 

case for the "right result for the wrong reason" rule. 

 In Barrett v. Commonwealth, 250 Va. 243, 462 S.E.2d 109 

(1995), the Supreme Court addressed essentially the same issue 

posed in this case, i.e., whether odd or unusual conduct will 

support an investigative stop of a person who is not evidently 

engaged in criminal conduct. Id. at 248, 462 S.E.2d at 112. In 

Barrett, the trial judge found that the officer's conduct was 

reasonable and that "'due to the unusual situation which [the 

officer] was confronted with[, the officer] was required to 

investigate [and that] it was natural for [the officer's] 

curiosity to be aroused, since this was a situation that was not 

seen very often.'" 250 Va. at 245, 462 S.E.2d at 111. However, 

the Supreme Court held that finding insufficient because "'odd' 

conduct, without more, did not give rise to 'a reasonable 

suspicion, based on objective facts' that [the driver] needed 
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police assistance." Id. at 248, 462 S.E.2d at 112. In the 

absence of "'a reasonable suspicion, based on objective facts, 

that the individual is involved in criminal activity,'" a driver 

is free to drive without being ordered to stop. Id. at 247, 462 

S.E.2d at 112 (quoting Leeth v. Commonwealth, 223 Va. 335, 340, 

288 S.E.2d 475, 478 (1982) (emphasis added)). 

 Because the Commonwealth relied solely upon the community 

caretaker doctrine, to the express exclusion of any other theory, 

and because the trial judge based his ruling solely upon the 

community caretaker doctrine, I would hold that the record fails 

to support the trial judge's application of that doctrine in 

refusing to suppress the evidence. For these reasons, I would 

reverse the conviction and remand for a new trial.