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Bruce Tharp v. Commonwealth of Virginia
Supreme Court of Virginia
221 Va. 487
October 10, 1980

The defendant was not brought before a judicial officer authorized to grant bail in Virginia Beach, but was immediately transported to Hampton and brought before a Hampton magistrate.  En route, defendant made an incriminating statement. On the day of trial, defendant made a motion to dismiss his arrest warrant as being improperly executed and to exclude the confession as a fruit of the unlawful arrest. The trial court denied the motion as untimely under Va. Sup. Ct. R. 3A:12(c)(1), and defendant was convicted.

• Whether the trial court erred in refusing to rule on the admissibility of his confession and in receiving the confession into evidence?
• Whether the officer violated the following provisions of Code § 19.2-76 in effect at the time of the arrest?

1)         Whether the trial court erred in refusing to rule on the admissibility of his confession and in receiving the confession into evidence?

The court states that "we will assume, but not decide, that defendant's motion was timely and that it was not subject to the seven-day limitation of Rule 3A:12(c)(1). Nevertheless, we reject defendant's argument on the merits of the motion and hold the confession was properly admitted in evidence.  The officer's conduct in placing defendant under arrest in Virginia Beach was lawful, even though the act was technically "improper" because the officer was acting beyond his territorial jurisdiction and had no standing to arrest by virtue of his office. The officer nonetheless retained power as a private citizen to make an arrest when, as here, the felony had actually been committed and he had reasonable grounds for believing the person arrested had committed the crime."

2)         Whether the officer violated the following provisions of Code § 19.2-76 in effect at the time of the arrest?

The court held that the officer's failure to take defendant before a Virginia Beach magistrate as required by Code § 19.2-76 was a mere procedural violation of that statute which did not prejudice defendant, and which did not involve an error of constitutional dimension giving rise to an application of the exclusionary rule.  Here, contrary to the situations in the cases relied on by defendant, there was no lack of probable cause to arrest; there was no coercion, the confession being freely given during the brief trip from Virginia Beach to Hampton; there was no suggestion of bad faith by the police; and there was no inordinate delay in bringing defendant before a proper judicial officer having authority to grant bail. The police conduct was not tantamount to a Fourth Amendment violation and it would therefore be inappropriate to invoke the exclusionary rule.

Conclusion:

This court affirmed defendant's convictions of rape and sodomy and his 10 and 5 year sentences to the penitentiary

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm's unofficial views of the Justices' opinions.  The original opinions should be consulted for their authoritative content.