Opinion
Record No. 1678-91-2
April 20, 1993
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG J. PEYTON FARMER, JUDGE.
Allen F. Bareford (David H. Henderson, Public Defender, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Mary Sue terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Rodney Maurice Lewis appeals from a conviction for driving after having been declared an habitual offender in violation of Code § 46.2-357. The sole question presented for review is whether evidence should have been suppressed because Lewis was unlawfully detained. For the reasons that follow, we affirm the conviction.
Before trial, Lewis filed a motion to suppress evidence of his identity. The motion alleged that Lewis was illegally arrested, illegally searched and seized prior to being arrested. The motion further states that, as a consequence of these illegalities, Lewis was identified as an habitual offender. At the evidentiary hearing, testimony proved that at 11:30 p.m. a police officer stopped a vehicle occupied only by Isaac Nichols. Nichols was given a citation for driving while his license was suspended. After Nichols received the citation, he left the vehicle where it was lawfully parked and walked away.
Forty minutes after that event, the officer went to police headquarters and learned that seventeen felony warrants were outstanding for the arrest of Nichols. He also learned that warrants for arrest were outstanding for several other persons who had been involved with Lewis in the incident for which Lewis was charged. The officer received the names of three of the other persons and was told that the fourth man was known only as "Roc." He did not know "Roc" and knew only that "Roc" was "approximately between five-two to five-five, five-six, light complected, black male."
After the officer left police headquarters, he saw the vehicle that Nichols had been driving an hour earlier. The officer followed the vehicle, called for assistance, and activated his emergency lights. After the vehicle stopped, the officer ordered the driver and the passenger out of the vehicle. Nichols was the passenger, and he was promptly arrested. Lewis was the driver of the vehicle. When the officer asked Lewis for identification, Lewis said that he had none but he gave his full name and social security number to the officer. The officer requested a record check and learned within three to five minutes that Lewis was an habitual offender. He then arrested Lewis.
On this appeal, Lewis contends that the issue is "whether a motion to suppress evidence of the identity of . . . Lewis should be granted where Lewis' identity was discovered as a result of his detention by an officer who had no reasonable suspicion that Lewis was involved in criminal activity." Lewis also argues, however, that the stop of the vehicle he was driving constituted a violation of the fourth amendment. We agree with the Commonwealth's argument that Lewis is precluded from challenging on appeal the lawfulness of the stop of the vehicle.
After the conclusion of the testimony at the suppression hearing and while discussing the evidence, Lewis' trial counsel made the following statements:
Your Honor, basically what the officer testified to is a vehicle that he saw the driver of that vehicle commit no traffic infraction this last time.
He probably, Your Honor — he probably had a duty and obligation to stop that vehicle given the proximity, knowing it was Mr. Nichols' car and knowing that he had just seen Mr. Nichols around the car; that the stop of the vehicle — Your Honor, I don't suppose there is any objection by the defense as to the method or the process of taking Mr. Lewis out of the vehicle, given the fact it was a felony warrant and the nature of the warrant, getting Mr. Nichols and Mr. Lewis out of the vehicle, securing the situation, and patting them down for weapons.
At that time, they knew the individual for whom they stopped the car, Mr. Nichols, was secured. The situation was under control as the officer testified to.
Officer Thodos had not one iota of suspicion, reasonable or unreasonable, that Mr. Lewis was involved in criminal activity at that time, Your Honor. He hadn't even committed a traffic infraction.
The only thing possibly they could have thought was, well, he was a black male and we've got some warrants for some black males, and we are going to stop them.
At that time, Your Honor, Mr. Lewis was being held, he was being detained; and his detention was after Mr. Nichols was secured and arrested, including his detention to wait for the records check, as well as his detention — as well as the initial asking of Mr. Lewis for his identity at the time when there was absolutely no suspicion whatsoever that he was involved in any criminal activity. And, Your Honor, we offer that it was improper.
In ruling on the motion, the trial judge stated: "First of all, it is conceded that the stop of the car was valid." Without further discussion of the stop of the vehicle, the trial judge ruled that the police did not unreasonably detain Lewis when he was frisked and asked his name.
We conclude that trial counsel's argument was fairly interpreted by the trial judge to be a concession that the stop of the vehicle and the removal of the occupants were not at issue. However, even if trial counsel had not intended such a concession, by remaining mute when the trial judge voiced his understanding of the issue, trial counsel waived that issue for purposes of this appeal. See Kelly v. Commonwealth, 8 Va. App. 359, 367, 382 S.E.2d 270, 274 (1989); Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986).
Because this issue was decided at the suppression hearing and a different issue is posed in the question presented for review, we confine our review to whether the detention of Lewis following the stop of the vehicle was unreasonable.
When we review the evidence concerning the detention, we conclude the trial judge did not err. The police had probable cause to arrest Nichols when the vehicle was stopped. The police also had in their presence Nichols' companion, the driver of the vehicle. The police officer who detained the two men testified that the driver fit, in part, the description, albeit vague, of the person whom the police knew only as "Roc" and who was also wanted for a felony offense. We conclude that the police did not act unreasonably in requesting that Lewis identify himself. See Washington v. Commonwealth, 219 Va. 857, 861-62, 252 S.E.2d 326, 328-29 (1979). See also United States v. Wiga, 662 F.2d 1325, 1332-33 (9th Cir. 1981), cert.denied, 456 U.S. 918 (1982). When Lewis stated that he had no identification on his person, the police made a record check using the name that Lewis gave. The detention of Lewis for three to five minutes until the police could verify his identity was not unreasonable. Accordingly, we affirm the refusal to suppress the evidence.
Affirmed.