VA: Defendant’s dropping gun during flight from allegedly illegal arrest was not cause for applying exclusionary rule

Defendant argued that his stop and assuming the position for a frisk was unreasonable, but he fled before the patdown could occur, and a gun fell from his waistband in flight. The dropping of the gun was unforeseeable to the officer, and the exclusionary rule would not be applied. Fitchett v. Commonwealth, 56 Va. App. 741, 697 S.E.2d 28 (2010)*:

Unlike in Smith, appellant’s handgun was not first discovered during Officer Blount’s seizure of appellant. Here, appellant ceased submitting to Officer Blount’s authority and instead began running away from the officer. During his flight on foot, appellant tripped and fell, causing the handgun to fall from his waistband, where it had been concealed, and land on the ground. The officer never observed the handgun until it fell to the ground while appellant was fleeing from him. Because “[t]he primary justification for the exclusionary rule” is “the deterrence of police conduct that violates” a defendant’s constitutional rights, Stone v. Powell, 428 U.S. 465, 486, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), the purpose of the exclusionary rule is satisfied only by the suppression of evidence that is the “foreseeable consequence[] of the police’s illegal conduct.” State v. Washington, 585 P.2d 249, 253, 120 Ariz. 229 (Ariz. Ct. App. 1978). Here, however, appellant’s counsel conceded during oral argument before this Court that appellant’s accidental dropping of the handgun was an entirely unforeseeable result of the officer’s seizure of appellant.

Defendant was detained by officers standing outside the patrol car he was seated in, and he could not feel free to leave. The stop was continued without reasonable suspicion. State v. Tindall, 388
S.C. 518, 698 S.E.2d 203 (2010)*:

The question therefore becomes whether the officer reasonably suspected a serious crime at the point at which he chose not to conclude the traffic stop, despite his stated intention to issue a warning ticket, instead opting to continue his questioning. See Sullivan, 138 F.3d at 131. At that point, the officer had ascertained the following information: (1) Tindall was driving to Durham to meet his brother; (2) Tindall was driving a rental car rented the previous day by another individual which was to be returned to Atlanta on the day of the stop; (3) Tindall did a “felony stretch” on exiting the vehicle; and (4) Tindall seemed nervous. We find these facts did not provide the officer with a “reasonable suspicion” that a serious crime was afoot. Consequently, the continued detention was illegal and the drugs discovered during the search of the vehicle must be suppressed.