839 S.E.2d 118
Va. Ct. App.2020Background
- Officer David Bowers responded to a 911 call that two homeless individuals were pan‑handling and refused to leave a convenience store property in Virginia Beach.
- Bowers found two men near the rear fence; he asked the first man for ID (who complied) and then asked appellant Jacob Herrington for ID; Herrington refused and cited Terry and Miranda.
- Officers detected alcohol odor and slurred speech from Herrington; he was arrested for public intoxication and for refusing to identify himself; identification was found incident to arrest.
- Herrington testified he had been waiting for a bus, had not panhandled, was not near customers, and disputed that store personnel asked him to leave; he also cited a history of mental illness.
- At trial the City conceded Herrington’s factual account was largely consistent with the evidence; the trial court convicted under Virginia Beach City Code § 23‑7.1 (failure to ID) and Herrington appealed.
- The Court of Appeals reversed, holding the City failed to prove the ordinance’s required "public safety" element—i.e., circumstances indicating to a reasonable person an immediate potential for injury or property damage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence showed the surrounding circumstances were "such as to indicate to a reasonable man that the public safety requires" identification under Va. Beach City Code § 23‑7.1 | City: A uniformed officer’s suspicion that a crime occurred (investigative need) satisfies the ordinance’s public‑safety element. | Herrington: No immediate public‑safety threat; mere investigation/suspicion is insufficient; he wasn’t interacting with customers and no danger was apparent. | The public‑safety element requires circumstances suggesting an immediate potential for injury or damage; those circumstances were not present, so conviction reversed and charge dismissed. |
Key Cases Cited
- Hannon v. Commonwealth, 68 Va. App. 87 (Va. Ct. App. 2017) (standard for reviewing sufficiency of evidence and inferences)
- Smith v. Commonwealth, 282 Va. 449 (Va. 2011) (de novo review when construing statutory language at issue in sufficiency challenge)
- Jones v. Commonwealth, 230 Va. 14 (Va. 1985) (addressed related ordinance in Fourth Amendment context)
- Antisdel v. Ashby, 279 Va. 42 (Va. 2010) (statutory construction: give reasonable effect to every word)
- Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 (Va. 2012) (primary objective is to ascertain legislative intent from the statute’s language)
- Armstrong v. Commonwealth, 263 Va. 573 (Va. 2002) (criminal penalties must be strictly construed against the State)