Reynolds v. Commonwealth

JOHN CHRISTOPHER REYNOLDS v. COMMONWEALTH OF VIRGINIA

Record No. 2179-12-4

COURT OF APPEALS OF VIRGINIA

MAY 27, 2014

UNPUBLISHED

Present: Judges Alston, McCullough and Senior Judge Annunziata

Argued at Alexandria, Virginia

MEMORANDUM OPINION^* BY

JUDGE ROSSIE D. ALSTON, JR.

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Daniel S. Fiore, II, Judge

Dusty Sparrow, Assistant Public Defender (Allison H. Carpenter; Matthew T. Foley, on briefs), for appellant.

Rosemary V. Bourne, Assistant Attorney General (Kenneth T. Cuccinelli, II,¹ Attorney General, on brief), for appellee.

John Christopher Reynolds (appellant) appeals his convictions of felony hit and run in violation of Code § 46.2-894 and DWI maiming in violation of Code § 18.2-51.4. On appeal, appellant alleges that the trial court (i) "erred in denying [appellant's] motion to suppress evidence seized as a result of the Arlington County Police Department's unlawful attachment of a GPS unit to [appellant's] vehicle in Maryland without a search warrant and for purpose of arrest," and (ii) "erred in denying [appellant's] motion to suppress evidence seized as a result of the unlawful search of his cell-site information for the purpose of tracking [his] movements." Finding no error, we affirm.

I. Background

The night of December 29, 2010, appellant met some friends for drinks in the Ballston neighborhood of Arlington, Virginia. After parting ways with his friends, who testified they left appellant sleeping in his car parked in the Ballston Mall parking garage, appellant drove his vehicle down Fairfax Drive in Arlington and struck Rebekah Grant, a pedestrian, while she was crossing the street with a friend. Appellant did not stop, and an eyewitness saw appellant's vehicle take a right-hand turn off of Fairfax Drive shortly thereafter.

A. The Investigation

When officers arrived at the scene, they recovered one half of a side marker light with a Dodge Chrysler logo and serial number and a piece of a passenger side mirror with a date stamp of October 2002 and a part number. Through information from Dodge Chrysler, the eyewitness, and the Virginia Department of Motor Vehicles, Arlington County Police Officer Robert Wright narrowed down the vehicle suspected of hitting Ms. Grant to four Dodge Neons in the area.

While working to narrow down the list of suspect vehicles in the area, Officer Wright received a call from Investigator Rich of the National Insurance Crime Bureau. Investigator Rich relayed to Officer Wright that at approximately 4:00 a.m. on December 30, 2010, a call was placed to Progressive Insurance Company (Progressive) by John J. Reynolds, appellant's father, who stated that his Dodge Neon was involved in an accident in the parking garage of Fair Oaks Mall in Fairfax County, Virginia. Mr. Reynolds's Dodge Neon was the same make, model, description, and VIN number as one of the four Dodge Neons on Officer Wright's list of suspect vehicles. In addition, the damage to Reynolds' vehicle was consistent with the likely damage to the vehicle involved in the hit and run. In further conversations with the insurance company, Officer Wright learned that Mr. Reynolds's insurance claim had already been paid as a total loss and he was able to locate and seize the vehicle from a salvage yard in Culpeper, Virginia. Whenhe located Reynolds' vehicle, Officer Wright observed damage consistent with the pieces found at the scene of the hit and run. Officer Wright also learned that the Dodge Neon he ultimately seized was registered to appellant's father and mother, Jacqueline Reynolds. Both John J. Reynolds and appellant were listed as authorized drivers on the insurance policy.

Continuing his investigation, Officer Wright met with the security guard who was on duty at the Fair Oaks Mall parking garage the morning of December 30, 2010. The security guard told Officer Wright that he did his rounds at approximately 11:00 p.m. on December 29, 2010, and did not notice the Reynoldses' vehicle. Moreover, around 4:00 a.m. on December 30, 2010, the security guard did see the Reynoldses' vehicle in the garage but did not observe any debris. At approximately 5:00 a.m., the security guard saw an older white male by the Reynoldses' vehicle. When approached, the man, presumably appellant's father, told the security guard that the vehicle was involved in a hit-and-run accident on Route 50 when a woman struck his car and fled the scene.

Officer Wright subsequently spoke to Progressive and learned that appellant's father reported that appellant parked the car in the mall parking garage to go out with friends and when he returned, the vehicle while parked in the lot had been struck. Officer Wright also learned through Progressive that appellant was the usual driver of the vehicle and that he was reported as the driver the night of December 29th into the morning of December 30, 2010.

B. The First, Historical Cell-Site² Information Court Order

Having narrowed down the suspects in the hit and run to appellant or his father, Officer Wright obtained a court order to retrieve historical cell-site information (the "January order")³from appellant's and his father's cellular service providers and bank records to help him determine if appellant or his father had been in Arlington the night of the hit and run. The bank records showed that appellant used his debit card at Union Jack's, a bar/restaurant in the Ballston Mall, approximately four hours prior to the accident. The phone records revealed that appellant's father used his cell phone in the early evening hours of December 29, 2010, and then not again until he received a call from appellant around 4:00 a.m. on December 30, 2010.

Meanwhile, appellant's phone records revealed that he sent and received text messages and phone calls throughout the evening of December 29, 2010, until a break from approximately 12:20 a.m. to 4:00 a.m. on December 30, 2010, when appellant called his father. The cell-site records also revealed that appellant's phone "pinged" off of cellular towers in the Ballston area and specifically around Fairfax Drive at the time of the accident. In the hours after the accident, appellant's phone pinged off of towers through Rosslyn, into the District of Columbia, and then back out Route 66 west towards Fair Oaks Mall. Officer Wright testified at the hearing on appellant's motion to suppress that "[a]t that time of the investigation, I determined that [appellant] was in the vehicle [at the time of the hit and run]."

C. The GPS Tracking

Having identified appellant as the main suspect in the hit and run, Officer Wright decided he wanted to leverage the "element of surprise" and arrest appellant while he was alone, in hopesof strengthening the case against appellant. During his investigation, Officer Wright learned that appellant lived in Pennsylvania and traveled extensively for work in his own vehicle, including trips to Virginia. Appellant's parents lived in Fairfax County, and appellant's vehicle registration and driver's license listed his parents' address.

On February 26, 2011, admittedly without consultation with the Commonwealth's attorney and without a warrant or other court sanction, Officer Wright placed a GPS tracking device on appellant's vehicle while it was in a parking lot in Maryland. For twelve days, Officer Wright monitored appellant's travel through Virginia, Maryland, New York, and Pennsylvania using the GPS information. Officer Wright testified that the GPS could update him as to appellant's location in as little as fourteen-second increments through emails sent to him and to Arlington County Police Detective Chris Dengeles. However Officer Wright, to preserve the battery life of the GPS, set the GPS to provide less frequent updates. Officer Wright used a computer interface to adjust the GPS settings and to alert him when appellant's vehicle entered Virginia.

D. The Second, Real-Time Cell-Site Information Court Order and appellant's Arrest

Around midnight the morning of March 9, 2011, Officer Wright received a notification from the GPS that appellant traveled into Virginia and to his parents' house in Fairfax County. Officer Wright contacted the Arlington County Tactical Unit ("TAC unit") supervisor at approximately 7:00 a.m. to request a TAC unit go to appellant's parents' house to visually confirm that appellant's vehicle was there. The TAC unit arrived at appellant's parents' house at approximately 8:30 a.m. and around the same time, appellant left the house in his vehicle and drove to the Tysons Corner area of Fairfax. The TAC unit followed appellant and observed him park and leave his vehicle and get in another car with four other individuals. The separate vehicle left the scene and, on Officer Wright's instructions to stay with appellant's vehicle, theTAC unit did not follow. Meanwhile, around 9:30 a.m. Officer Wright obtained a warrant to arrest appellant for felony hit and run.

The TAC unit stayed with appellant's vehicle until approximately 4:00 p.m. when Officer Wright testified they "started to determine what [they] were going to do next." Officer Wright testified that, armed with a felony arrest warrant, he determined that there was a need to take appellant into custody and to that end, he and Detective Don Fortunato, also of the Arlington County Police Department, drafted a court order to obtain "real-time" cell-site data from appellant's phone through AT&T (the "March order").⁴ The March order required AT&T to ping appellant's cell phone for its location. Once drafted, Officer Wright and Detective Fortunato took the March order to Arlington County Circuit Court, where a judge signed it around 4:00 p.m. or 5:00 p.m. The March order authorized AT&T to "ping" appellant's phone every fifteen minutes and provide its physical location data to Officer Wright. Beginning at approximately 7:00 p.m., AT&T sent four electronic signals in fifteen-minute increments to appellant's phone. The ping signals registered with cell towers...