COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Decker, Judge Humphreys and Senior Judge Annunziata
UNPUBLISHED


              Argued by videoconference


              LINDA MENA ARREOLA, S/K/A
               LINDA MENA-ARREOLA
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 2074-19-2                                JUDGE ROSEMARIE ANNUNZIATA
                                                                               NOVEMBER 10, 2020
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                               Bonnie L. Jones, Judge

                               Ben Pavek, Assistant Public Defender, for appellant.

                               A. Anne Lloyd, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Linda Mena Arreola (“appellant”) appeals her conviction for driving under the influence

              of alcohol (DUI).1 Appellant contends that the trial court erred in denying her motion to

              suppress the evidence. Appellant argues that the police illegally detained her within the curtilage

              of her home. Thus, she contends, the trial court should have suppressed the evidence obtained

              by the police as a result of the illegal seizure. We disagree and affirm the conviction.

                                                        BACKGROUND

                     “On appeal of the denial of a motion to suppress, we view the evidence in the light most

              favorable to the Commonwealth.” Jones v. Commonwealth, 71 Va. App. 375, 380 (2019)

              (quoting Carlson v. Commonwealth, 69 Va. App. 749, 757 (2019)). “[W]hen a defendant

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       The trial court also found appellant in violation of Code § 18.2-268.3 by unreasonably
              refusing to submit a breath sample, a civil offense. On appeal, appellant contests only her DUI
              conviction, not the violation of Code § 18.2-268.3.
challenges the denial of a motion to suppress, he has the burden to show that the trial court’s

ruling constituted reversible error.” Adams v. Commonwealth, 48 Va. App. 737, 745 (2006).

“Since the constitutionality of a search and seizure under the Fourth Amendment involves

questions of law and fact, we give deference to the factual findings of the trial court but

independently decide whether, under the applicable law, the manner in which the challenged

evidence was obtained satisfies constitutional requirements.” Jackson v. Commonwealth, 267

Va. 666, 672 (2004).

         At about 9:30 p.m. on July 4, 2018, James Rogers was with a gathering of people outside

his home in Newport News. Rogers saw a dark-colored sedan, without its lights illuminated,

driving “all over the road” toward the group, which included adults and children. Thinking that

the driver might be intoxicated, Rogers got into a Toyota Tacoma with another male and

followed the sedan after it had passed the group of people. In a 911 call, Rogers alerted the

police about the situation. The sedan made three or four abrupt stops, but the car would “take

back off again” in an “aggressive manner” each time Rogers got out of the Tacoma to confront

the sedan’s driver. Rogers and his companion followed the sedan through several turns, never

losing sight of it.

         At one point, the sedan pulled over and stopped. Rogers approached on foot and found

appellant in the driver’s seat of the car. Rogers knocked on the window to get appellant’s

attention. Appellant then looked at Rogers, appeared scared, and “took off down the road”

again.

         With the Tacoma in pursuit through several turns, appellant’s sedan “clipped a telephone

pole.” After the collision with the pole, appellant backed up and drove away on Victoria

Boulevard. Appellant circled a city block three times, then turned into a driveway. Appellant

remained inside the car.

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         Rogers provided the police with appellant’s location and license plate number. Rogers

and his companion remained in the Tacoma parked across the street from the driveway, and they

waited there for about five minutes for the police to arrive on the scene.

         Through police radio dispatch, Officer Gomes of the Hampton police learned about the

sedan’s reckless movements, the license plate number on the car, and the location where it had

stopped in the driveway. Gomes arrived at the location at 9:42 p.m.; Gomes confirmed that he

was in the right place by contacting Rogers. Rogers told Gomes that no one had exited the

sedan.

         Gomes walked up the driveway and approached appellant’s sedan. Appellant was in the

driver’s seat of the car, the driver’s door was open, and the vehicle was not running. Gomes

identified himself, explained his presence there, and said he had information that appellant may

have hit some things with the car. At that time, Gomes detected a strong odor of alcohol coming

from the vehicle. With his flashlight shining on appellant, Gomes noted that she had bloodshot

and watery eyes, her speech was slurred and slow, her face was flushed, and her clothes were

soiled. Gomes told appellant to stay in the car. When Gomes asked appellant where she had

driven from, appellant said she was going “from home to home.” Gomes asked for a driver’s

license, but appellant could not produce one. Appellant denied that she had been drinking

alcohol. Appellant said that she wanted to go to her home, but Gomes refused. He administered

“pre-exit” and other field sobriety tests, and then arrested appellant for DUI.2

         In arguing the motion to suppress, appellant conceded that Gomes was justified in

approaching her vehicle. However, appellant argued that Gomes unlawfully seized her without a

warrant within the curtilage of her property when he refused to let her exit the car and go to her

        At the suppression hearing, the trial court viewed a video recorded by the officer’s body
         2

worn camera during his interaction with appellant. However, this video was not introduced into
evidence as an exhibit.

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home. Thus, she maintained, the trial court should suppress the results of any field sobriety tests

that Gomes conducted. The trial court found that Gomes possessed both probable cause to arrest

appellant and exigent circumstances when he entered the property and denied the motion to

suppress.

                                             ANALYSIS

          Appellant contends the trial court erred in refusing to suppress evidence obtained by the

police based on her performance on field sobriety tests conducted both before and after she

exited the car in the driveway curtilage of her home. We disagree and affirm for the reasons that

follow.

          The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

“It long has been recognized that, for Fourth Amendment purposes, the home includes more than

the interior of a residence: the amendment’s protections also extend to ‘the land immediately

surrounding and associated with the home,’ an area referred to as ‘the curtilage[.]’” Saal v.

Commonwealth, 72 Va. App. ___ , ___(Oct. 13, 2020) (quoting Oliver v. United States, 466 U.S.

170, 180 (1984)). “Because the curtilage is ‘considered part of home itself for Fourth

Amendment purposes[,]’ the amendment’s protection against unreasonable [seizures] applies to

such areas.” Id. at ___ (quoting Oliver, 466 U.S. at 180). “When a law enforcement officer

physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth

Amendment has occurred. Such conduct thus is presumptively unreasonable [for purposes of the

Fourth Amendment] absent a warrant.” Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018)

(citation omitted). “[A]bsent (1) exigent circumstances and probable cause or (2) consent, law

enforcement agents cannot enter the curtilage of a person’s home either to search or seize

without previously obtaining a warrant.” Robinson v. Commonwealth, 47 Va. App. 533, 545

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(2006) (quoting Jefferson v. Commonwealth, 27 Va. App. 1, 16 (1998)), aff’d, 273 Va. 26

(2007).

          We find the record supports the conclusion that when Gomes detained appellant in her

car on her driveway, it was within the curtilage of her home.3 As in the trial court, appellant

concedes on appeal that the police lawfully entered the driveway and approached her vehicle.

Cf. Saal, 72 Va. App. at ___ (observing that “absent any affirmative attempts to discourage

trespassers, owners or possessors of private property impliedly consent to have members of the

general public intrude upon certain, limited areas of their property[,]” such as the driveway).

Accordingly, we accept appellant’s concession that Gomes did not violate her Fourth

Amendment rights when he ventured upon the driveway. See Copeland v. Commonwealth, 52

Va. App. 529, 532 (2008) (this Court is under no obligation to accept concessions of law on

appeal).

          “As the United States Supreme Court repeatedly has recognized, the ‘touchstone of the

Fourth Amendment is reasonableness.’” Saal, 72 Va. App. at ___ (quoting Florida v. Jimeno,

500 U.S. 248, 250 (1991)). “Courts must consider the scope of the particular intrusion, the

manner in which it is conducted, the justification for initiating it, and the place in which it is

conducted.” Id. at ___ (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). In determining




         Rogers testified that appellant pulled the car into “her” driveway on Bay Avenue.
          3

Likewise, Gomes referred to the location where appellant stopped as “the driveway of her
residence” and appellant’s driveway. On cross-examination, the officer acknowledged that
subsequent field sobriety tests occurred on “her” property. Appellant presented no independent
evidence that she stopped the car on her own property and, thus, the driveway should be
considered curtilage of her home. However, in the trial court the parties did not question that the
location was within the curtilage of appellant’s home. Nor did the Commonwealth contend that,
for purposes of the Fourth Amendment, appellant did not have standing to challenge the
detention under the circumstances where it occurred. Thus, we do not address these issues on
appeal.

                                                 -5-
whether an action is reasonable for purposes of the Fourth Amendment, a court must examine

“the totality of the circumstances” in “objective terms.” Id. at ___.

        Accordingly, we examine the totality of the circumstances in determining whether

Gomes’s conduct after he lawfully entered the property was reasonable under the Fourth

Amendment. “In Terry v. Ohio, 392 U.S. 1, 30 (1968), the Supreme Court 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 objective facts, that criminal

activity may be afoot.” Mason v. Commonwealth, 291 Va. 362, 367 (2016). It is thus lawful

under the Fourth Amendment for a police officer to detain an individual upon reasonable,

articulable suspicion that she is “involved in, or ha[s] recently been involved in, some form of

criminal activity.” Hairston v. Commonwealth, 67 Va. App. 552, 564 (2017) (quoting Logan v.

Commonwealth, 19 Va. App. 437, 441 (1994) (en banc)).

        “Similarly, probable cause to arrest exists where the ‘facts and circumstances within the

officer’s knowledge . . . are sufficient to warrant a prudent person . . . in believing, in the

circumstances shown, that the suspect has committed, is committing, or is about to commit an

offense.” Id. (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). Information provided

by a known informant, rather than a police officer’s “direct observations,” may provide probable

cause as long as “the officer has reasonable grounds to believe that the informant’s statement is

true.” Jefferson, 27 Va. App. at 12. The “police properly may give more weight to” information

provided by “a disinterested citizen” who has witnessed criminal activity than they would give to

a tip from a “‘criminal’ informer, whose motives are less likely to be pure.” Reed v.

Commonwealth, 36 Va. App. 260, 267-68 (2001).

        Viewing the totality of the circumstances objectively, when Gomes lawfully approached

appellant in her car in the driveway he possessed, at the least, reasonable, articulable suspicion

                                                 -6-
that she had recently been involved in criminal conduct. Rogers, a disinterested citizen who

witnessed appellant driving dangerously, alerted the police about the situation. Rogers saw

appellant driving without lights at night, swerving all over the road, and nearly hitting the people

with whom he was socializing. Rogers and a companion immediately got into a vehicle and

followed appellant; they called 911 and reported the matter to the police. In the Tacoma, Rogers

and the other male repeatedly tried to stop appellant. When appellant stopped the sedan several

times, she drove off again after Rogers exited the vehicle. At one point, appellant struck a

telephone pole. Rogers relayed all of this information by phone to the police dispatcher.

       After appellant turned into the driveway, Rogers and the other male watched and waited

on the scene for about five minutes before the police arrived. When Gomes reached the location,

he contacted Rogers and confirmed what Rogers had seen. Gomes also confirmed that

appellant’s vehicle had the same license plate number as Rogers reported and that appellant had

not left the car since stopping in the driveway. Considering these facts and circumstances,

Gomes possessed a reasonable suspicion that the driver of the vehicle recently had committed

reckless driving and hit and run, and he was entitled to detain appellant to investigate. Cf.

Navarette v. California, 572 U.S. 393, 399 (2014) (holding police had reasonable suspicion to

conduct a traffic stop based on a 911 caller’s “eyewitness” report of dangerous driving).

       During the course of a valid traffic stop, reasonable, articulable suspicion of criminal

activity may “ripen[] into probable cause to arrest.” Williams v. Warden, 278 Va. 641, 648

(2009). In this case, upon approaching appellant, Gomes noticed indicia that she had consumed

alcohol: there was a strong alcohol odor, appellant’s speech was slurred, her eyes were watery

and bloodshot, and her appearance was disheveled. During the detention, appellant did not

perform in a satisfactory manner upon the field sobriety tests Gomes administered. Considering

these factors with Rogers’s description of the reckless manner appellant had driven the car within

                                                -7-
the previous fifteen minutes, Gomes clearly possessed probable cause to arrest appellant for

DUI. See Jones v. Commonwealth, 279 Va. 52, 60 (2010).

       We conclude that Gomes’s actions in detaining appellant, investigating her suspected

criminal conduct, and ultimately arresting her for DUI all were reasonable intrusions for

purposes of the Fourth Amendment. Appellant thus sustained no violation of her Fourth

Amendment rights, and we do not disturb the trial court’s denial of the motion to suppress.4

                                             CONCLUSION

       For the foregoing reasons, the trial court did not err in denying the motion to suppress.

Accordingly, we affirm appellant’s conviction.

                                                                                    Affirmed.




       4
          Having reached this conclusion, we need not consider whether the trial court erred in
finding that exigent circumstances justified Gomes’s detention of appellant without a warrant.
See Harris v. Commonwealth, 39 Va. App. 670, 676 (2003 (“[a]n appellate court may affirm the
judgment of a trial court when it has reached the right result for the wrong reason” under
appropriate circumstances (quoting Driscoll v. Commonwealth, 14 Va. App. 449, 451-52
(1992))).

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