Turay v. Commonwealth

79 Va. App. 286

895 S.E.2d 805

Arun Rashid TURAY

v.COMMONWEALTH of Virginia

Record No. 0868-21-3

Court of Appeals of Virginia, Richmond.

December 19, 2023

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO, Paul A. Dryer, Judge

Jessica N. Sherman-Stoltz, Verona (Sherman-Stoltz Law Group, PLLC, on briefs), for appellant.

Liam A. Curry, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White

OPINION BY JUDGE LISA M. LORISH

After receiving a report of a recent home invasion, Deputy C. Stroop stopped at that home and spoke to another law enforcement officer about the reported crime. He learned, that the suspects left on foot after pistol-whipping residents of the home. It was almost midnight, on a cold winter night, and he began driving around the residential neighborhood. He heard a “be on the lookout” (BOLO) dispatch describing the suspects as “three, Black males wearing black.” Deputy Stroop soon came across two Black men walking in the road, one wearing a black jacket and black pants. He detained both men for one and a half to two minutes until other law enforcement officers could arrive with additional information learned from watching home security footage. Applying binding precedent here, we make no new law in rejecting Turay’s argument that he was detained for these minutes without reasonable suspicion.

BACKGROUND¹

[1] After receiving a report of a potential home burglary at 11:00 p.m. in February 2020, the Waynesboro Police Department put out a police dispatch for officers to investigate the call While en route to the home, Waynesboro Police Sergeant B.W. Lemons received another report that a shot had been fired at the same location. Sergeant Lemons was the first officer on the scene. When he went inside, two residents of the home reported that three Black males wearing black had come in the home and “pistol-whipped” them, causing obvious injuries. Other Waynesboro officers then arrived at the scene to assist in the investigation. Deputy Stroop, an Augusta County Sheriff’s Deputy, was on patrol that same night and heard the call about the home invasion. He was “close to Waynesboro,”² so he drove past the crime scene and “talked to one of the Officers that was out there.” Deputy Stroop learned that there had been a break-in, that a firearm was allegedly taken from the home,³ and that the intruders fled on foot. Deputy Stroop left the scene at that point and began to drive around the area to see if he could find the individuals involved in the crime.

Deputy Stroop heard a BOLO radio transmission⁴ from Sergeant Lemons advising all responding officers to look for “three Black males wearing black.” Sergeant Lemons based this first BOLO on the information he learned from the residents. While driving around, Deputy Stroop saw two people walking down the road that he thought “matched the description of what was given out.” Deputy Stroop testified that he remembered saying to himself, “Hey; that matches the description that I heard over the radio.” One man (Turay) was wearing a black jacket⁵ with a red stripe down each arm and black pants. The other man (Justice Ahmed Carr⁶) was wearing gray pants and a white hoodie. Both had backpacks.

At the motion to suppress hearing, a year later, Deputy Stroop did not “remember what road it was,” as he was “not familiar with Waynesboro,” but that it was “off of [Route] 250.” Based on the testimony of other officers, the trial court found the exact location was an estimated six to ten blocks from the crime scene where Deputy Stroop had just been. Because the body camera video showed Sergeant Lemons leaving the crime scene and reaching the block where Turay and Carr were detained in less than a minute’s drive, the trial court concluded that the men had been stopped “a distance less than 10 blocks and likely less than [6] blocks.”

When Deputy Stroop saw Turay and Carr, they were walking down the road in a residential neighborhood on a cold winter night, near midnight. Deputy Stroop saw no other people walking in the neighborhood that night, let alone anyone else that matched the BOLO.⁷ About 30 minutes after the reported home invasion, Deputy Stroop detained the two men at gunpoint.⁸ Nothing else about the behavior of the two men stood out to Deputy Stroop. He testified that he wanted to detain the men until the Waynesboro officers, who had more information, could arrive. Both men complied with all of Stroop’s requests, including putting their hands on the hood of his car until those other officers arrived, merely a minute and a half or two minutes later—“in the blink of an eye.”

At some point while Stroop was detaining the two men, or waiting for the other officers to arrive, Sergeant Lemons sent another dispatch with more information about the suspects based on his review of the security video footage. Because the trial court concluded Deputy Stroop did not hear the other BOLOs before deciding to detain Turay, we do not elaborate on what those BOLOs said. We note only that within minutes of Deputy Stroop’s detaining the men, other officers with additional information did arrive, including, Sergeant Lemons, who had personally watched the security video footage. Sergeant Lemons confirmed that Turay was wearing clothing that, matched the security video footage, but said that Carr was not dressed the same. After Carr consented to a search, credit cards belonging to one of the victims from the home were found in his pocket. Both, men were then arrested, and additional searches took place, producing incriminating evidence that Turay asked the trial court to suppress.

At the suppression hearing, the trial court found Deputy Stroop had reasonable, articulable suspicion to stop and detain Turay given the “totality of the circumstances on the night in question.” Stressing “[t]he confluence of multiple factors of proximity, time, physical description, gender, and racial descriptiont[,]” the court denied Turay’s motion to suppress. After this, Turay entered a conditional guilty plea to armed burglary with the intent to commit robbery, robbery, use of a firearm in the commission of a felony, and being a felon in possession of a firearm. Turay appealed, and a divided panel of this Court reversed. See Turay v. Commonwealth, No. 0868-21-3, 2023 WL 2575693 (Va. Ct. App. Mar. 21, 2023). We then granted the Commonwealth’s request for review en banc.

ANALYSIS

Turay contends that the trial court erred in denying his motion to suppress because his “Fourth and Fourteenth Amendment Rights were violated when law enforcement, having no reasonable articulable suspicion of criminal activity, stopped and seized him.” He argues that the description of the suspects in the first BOLO was so general and vague that Deputy Stroop impermissibly detained him based on hunch alone. Turay’s challenge is specifically limited to whether Stroop had reasonable suspicion to detain him for one and a half to two minutes until Waynesboro police officers arrived with additional information. Turay does not challenge his arrest or the ultimate search of his person and backpack. Thus, we review only whether reasonable suspicion supported his minutes-long detention until other officers arrived where he was detained.

[2–4] A Fourth Amendment challenge like this one presents a mixed question of law and fact that we review de novo on appeal. Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836 (2002). In conducting our review, “we defer to the trial court’s findings of ‘historical fact’ ” unless such findings are “plainly wrong or devoid of supporting evidence.” Barkley v. Commonwealth, 39 Va. App. 682, 690, 576 S.E.2d 234 (2003) (quoting Davis v. Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374 (2002)). In doing so, we are required to “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 (1997) (en banc).

[5] Our dissenting colleagues conclude that two factual findings of the trial court were “plainly wrong.” First, they find the initial BOLO specified that the three Black men were “wearing black sweatshirts” and not simply “wearing black.” As we explain below, even if true, this distinction would not change the analysis. Second, our colleagues find error in the trial court’s conclusion that Deputy Stroop did not see anyone else in the neighborhood that night, because Deputy Stroop’s testimony was that there were “not a lot” of people out that night. After the trial court issued a written opinion with its conclusions of fact, Turay filed no objection or challenge to this factual finding. What is more, Turay conceded in his briefing before the panel of this Court that “Turay and his codefendant were the only two people seen in the vicinity of where Deputy Stroop was driving around.” Concessions of fact, “including concessions made for the first time on appeal,” are binding. Mintbrook Devs., LLC v. Groundscapes, LLC, 76 Va. App. 279, 293, 881 S.E.2d 657 (2022) (citing Logan v. Commonwealth, 47 Va. App. 168, 170, 172, 622 S.E.2d, 771 (2005) (en banc)).⁹

We now evaluate how the trial court applied its factual findings to the law.

I. Brief investigatory stops based on reasonable suspicion do not violate the United States Constitution’s, Fourth Amendment.

[6] Turay challenges his seizure, relying on the Fourth Amendment of the United States Constitution: “The right of the people to be secure in their persons … against unreasonable searches and seizures, shall not be violated[.]”¹⁰ The United States Supreme Court has held that “a police officer may, without violating the Fourth Amendment, make a brief investigatory stop of a person when the officer has a reasonable suspicion, based on...