 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Penn v. Commonwealth12/10/1991
In a bench trial, George Dennis Penn III was convicted of possession of cocaine. He was sentenced to five years in the penitentiary and fined $500. On appeal, Penn contends that the trial court erred by refusing to suppress evidence seized during a search made pursuant to an illegal arrest. We disagree and affirm the conviction.
On March 13, 1990, Officer Smith of the Lynchburg Police Department was working surveillance in the 1100 block of Rivermont Avenue in the City of Lynchburg. While observing the area through his binoculars, Officer Smith saw Penn throw a bottle onto the parkway area. Officer Smith relayed the information by radio to Officer Meechum who was in a vehicle in the area, and directed Officer Meechum to approach Penn. Officer Smith continued to observe as Officer Meechum approached Penn. Upon approaching Penn, Officer Meechum told Penn that he was going to receive a summons for littering. When Officer Meechum asked Penn for identification, Penn replied that he did not have any. Officer Meechum then placed Penn under arrest and patted him down. During the search, Officer Meechum discovered in Penn's right sock a small brown packet containing cocaine.
Penn argues that the cocaine seized during the search should have been suppressed as a result of an illegal arrest. He contends
that his warrantless arrest for littering violated Code § 19.2-81 because the misdemeanor offense was not committed in the presence of the arresting officer. While we agree that the arrest was invalid under Code § 19.2-81, we hold that such a violation of state law does not warrant application of the exclusionary rule to suppress the cocaine discovered in the search.
(1) A police officer may make a warrantless arrest for a misdemeanor if the offense is committed in the officer's presence. Code § 19.2-81. Although the statute sets forth certain exceptions to this requirement, the parties agree that the exceptions do not apply in the present case. Moreover, the parties agree that littering is a misdemeanor and that the arresting officer did not have a warrant. Therefore, the pivotal issue is whether the offense was committed "in the presence" of the arresting officer.
(2) "'An offense is committed within the presence of an officer, within the meaning of this rule, when he has direct personal knowledge, through his sight, hearing, or other senses that it is then and there being committed.'" Durant v. City of Suffolk, 4 Va. App. 445, 447, 358 S.E.2d 732, 733 (1987) (quoting Galliher v. Commonwealth, 161 Va. 1014, 1021, 170 S.E. 734, 736 (1933)). Thus, in order for Penn's arrest to be valid, Officer Meechum, who arrested Penn, must have had "personal knowledge acquired by his personal senses that an offense was committed in his presence." Id. (citing Code § 19.2-81).
The record reflects that the arresting officer did not actually see Penn litter, nor did he otherwise acquire knowledge through his personal senses that the offense had been committed. Officer Smith testified that he saw Penn litter while he was working surveillance, and relayed the information by radio to Officer Meechum. The evidence establishes that Officer Meechum's only source of knowledge that Penn littered was Officer Smith's radio call. Thus, Officer Meechum executed the arrest upon information he received from Officer Smith, not from information gathered through his personal senses. "If [the officer] has information that a misde
Page 1 2 3 4 5 Virginia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|