Rudolph v. Commonwealth (ORDER)

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond on Friday, the 27th day of
February, 2009.

Demetres Jerrod Rudolph, Appellant,

against Record No. 080794
Court of Appeals No. 0240-07-1

Commonwealth of Virginia, Appellee.

Upon an appeal from a judgment rendered by the
Court of Appeals of Virginia.

Upon consideration of the record, briefs, and argument of

counsel, the Court is of opinion that there is reversible error in

the judgment of the Court of Appeals.

Demetres J. Rudolph was charged with and found guilty of

possession of marijuana with the intent to distribute in the

Circuit Court of the City of Virginia Beach. By an unpublished

memorandum opinion, the Court of Appeals affirmed Rudolph’s

conviction. Rudolph claims that he was stopped in violation of his

rights under the Fourth Amendment of the United States Constitution

and that all evidence obtained as a result of that stop should have

been suppressed. The Commonwealth contends that, under the

circumstances, the police officer’s investigatory stop was

constitutionally permissible.

On January 23, 2006, at approximately 8 p.m., Officer Jeremy P.

Latchman was patrolling the Cypress Point Plaza Shopping Center
area. Multiple burglaries of closed businesses and robberies of

individuals had occurred in that area. Latchman saw a "vehicle with

no lights on parked parallel in the rear of [a] Citgo Gas Station,"

located on an outparcel of the shopping center. The gas station was

open for business, and there was an entry door for customers in the

"rear," which is the side of the building that is opposite the side

of the building where the gas pumps are located. Latchman thought

the circumstance of the vehicle being parked in that location was

unusual because he did not believe that customers used the station’s

rear entry in the nighttime. In addition, while there are parking

spaces on that side of the building, the vehicle was not parked in a

marked parking space.

There were two people in the parked vehicle. Rudolph was in

the driver’s seat. In the few seconds he observed the parked

vehicle from about a car length and a half away from Rudolph’s

vehicle, Latchman saw Rudolph moving around in the vehicle and saw

Rudolph’s head "[go] down a couple of times and back up." Latchman

testified that Rudolph appeared to be looking or reaching for

something inside the vehicle. Latchman decided to drive his marked

police vehicle around the gas station to "make sure everything was

fine." In doing so, he did not observe anything unusual. While

Latchman was circling around the gas station, Rudolph began to drive

away.

Latchman stopped Rudolph’s vehicle. During the stop, Rudolph

was asked to exit the vehicle; marijuana was found at the center

floor divider where Rudolph’s right leg had been. The discovery of

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that marijuana led to the conviction that is the subject of this

appeal.

A defendant’s claim that evidence was seized in violation of

the Fourth Amendment presents a mixed question of law and fact that

we review de novo on appeal. Bolden v. Commonwealth, 263 Va. 465,

470, 561 S.E.2d 701, 704 (2002). In making such a determination,

we give deference to the factual findings of the circuit court, but

we independently determine whether the manner in which the evidence

was obtained meets the requirements of the Fourth Amendment.

McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 515

(2008).

In order to conduct an investigatory stop, a police officer

need not have probable cause; he must have a reasonable suspicion,

based on objective facts, that the person is involved in criminal

activity. Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721,

722 (1997). To establish reasonable suspicion, an officer must be

able to articulate more than an unparticularized suspicion or

"hunch" that criminal activity is afoot. Illinois v. Wardlow, 528

U.S. 119, 123-24 (2000). A court must consider the totality of the

circumstances when determining whether a police officer had a

particularized and objective suspicion that the person stopped was

involved in criminal activity. Ewell, 254 Va. at 217, 491 S.E.2d

at 722-23. The fact that the stop occurred in a "high crime area"

3
is a relevant factor; however, this fact is insufficient to supply

a particularized and objective basis for suspecting criminal

activity on the part of the particular person stopped. Wardlow,

528 U.S. at 124; McCain, 275 Va. at 552-53, 659 S.E.2d at 516.

We hold that the circumstances and actions observed by

Latchman were not enough to create a reasonable articulable

suspicion that criminal activity was afoot. Viewing the totality

of the circumstances objectively, even though it was 8:00 p.m. and

there had been robberies and burglaries in the area, the

circumstances did not supply a particularized and objective basis

to suspect that Rudolph’s observed behavior was a precursor to a

break-in, robbery, or any other criminal activity on his part.

Therefore, Latchman stopped Rudolph in violation of Rudolph’s

rights under the Fourth Amendment. Because the marijuana was

discovered as a result of an illegal stop, the trial court should

have granted Rudolph’s motion to suppress.

Rudolph entered a conditional guilty plea pursuant to Code

§ 19.2-254, which provides in part that "[i]f the defendant

prevails on appeal, he shall be allowed to withdraw his plea."

Rudolph has prevailed on appeal regarding suppression of the

evidence in this case. He is, therefore, entitled by statute to

withdraw his plea of guilty. Rudolph must be given the opportunity

to reassess the admissible evidence that may be used against him

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and, if the Commonwealth wishes to continue its prosecution,

Rudolph may demand a trial if he so desires. See Code § 19.2-254;

Hasan v. Commonwealth, 276 Va. 674, 681, 667 S.E.2d 568, 572

(2008).

Accordingly, the judgment of the Court of Appeals is reversed,

Rudolph’s conviction in the Circuit Court of the City of Virginia

Beach, case number CR06-1036, is vacated, and we will remand this

case to the Court of Appeals with direction that the Court of

Appeals remand the case to the circuit court for proceedings

consistent with the views expressed in this order if the

Commonwealth be so advised.

_______________

JUSTICE LEMONS, with whom JUSTICE KINSER and SENIOR JUSTICE CARRICO
join, dissenting.

The jurisprudence of the United States Supreme Court dealing

with searches and seizures under the Fourth Amendment has always

sought to strike the correct balance between protecting the

constitutional rights of citizens and ensuring that law enforcement

officers can take necessary action to protect the public and ensure

compliance with the law.

I believe the majority today has misapplied the law relating to

investigatory stops under the Fourth Amendment, both in discounting

the cumulative effect of the circumstances encountered by the police

officer here, and in misconstruing the degree of suspicion required

5
to justify such stops under Terry v. Ohio in a way that imposes a

much heavier burden on police than the constitution warrants.

I. Principles of Law

Under the Fourth Amendment, brief stops by law enforcement

officers to investigate the possibility of criminal behavior may be

justified by a lower standard of suspicion than is required for "a

'technical arrest' or a 'full-blown search,'" in the words of Terry

v. Ohio, 392 U.S. 1, 19 (1968).

The Fourth Amendment prohibits "unreasonable
searches and seizures" by the Government, and its
protections extend to brief investigatory stops of
persons or vehicles that fall short of traditional
arrest. Because the "balance between the public
interest and the individual’s right to personal
security" tilts in favor of a standard less than
probable cause in such cases, the Fourth Amendment
is satisfied if the officer’s action is supported by
reasonable suspicion to believe that criminal
activity " 'may be afoot.' "

United States v. Arvizu, 534 U.S. 266, 273 (2002) (citations
omitted). This doctrine, which was recognized as to pedestrians in

Terry, 392 U.S. at 30, has been extended to stops of vehicles whose

drivers are suspected of engaging in wrongdoing. United States v.
Cortez, 449 U.S. 411, 417 (1981); see also Delaware v. Prouse, 440

U.S. 648, 663 (1979). We have also recognized and applied this

lower standard to vehicle stops. Jackson v. Commonwealth, 267 Va.
666, 673, 594 S.E.2d 595, 598 (2004).

While "reasonable suspicion" must be based on more than an

"inchoate and unparticularized suspicion or 'hunch,' " Terry, 392

U.S. at 27, the United States Supreme Court has also made clear that

the standard only requires "some minimal level of objective
6
justification" for making the stop in question, INS v. Delgado, 466

U.S. 210, 217 (1984) (citing United States v. Mendenhall, 446 U.S.

544, 554 (1980); Terry, 392 U.S. at 21). Indeed, the Court has

often reemphasized the significant difference between the low

threshold of "reasonable suspicion" on the one hand, and the

considerably more demanding requirements of "probable cause," "a

preponderance of the evidence," and "beyond a reasonable doubt" on

the other. For example, in United States v. Sokolow, 490 U.S. 1, 7

(1989), the Court noted that reasonable suspicion is "considerably

less than proof of wrongdoing by a preponderance of the evidence,"

and "obviously less demanding than that for probable cause." And in

Alabama v. White, 496 U.S. 325 (1990), the Court further explained
that

reasonable suspicion is a less demanding standard
than probable cause not only in the sense that
reasonable suspicion can be established with
information that is different in quantity or content
than that required to establish probable cause, but
also in the sense that reasonable suspicion can arise
from information that is less reliable than that
required to show probable cause.

Id. at 330.

Whether officers making an investigatory stop are presented

with circumstances sufficiently suspicious to satisfy this minimum

standard is determined by examining the totality of the

circumstances in the context of the officer’s experience and

training. United States v. Cortez, 449 U.S. 411, 417-18 (1981). As

the Supreme Court has noted, "[t]his process allows officers to draw

on their own experience and specialized training to make inferences

7
from and deductions about the cumulative information available to

them that 'might well elude an untrained person.' " Arvizu, 534

U.S. at 273 (quoting Cortez, 449 U.S. at 418).

And, as the Court has insisted since it first recognized the

constitutionality of reasonable investigative stops in Terry, "it is

imperative that the facts be judged against an objective standard,"

Terry, 392 U.S. at 21, meaning that the officer’s actual conclusion

in the particular case at issue is irrelevant. Instead, reviewing

courts must ask: "would the facts available to the officer at the

moment of the [stop] 'warrant a man of reasonable caution in the

belief' that the action taken was appropriate?" Id. at 21-22.
This legal framework exists to guide trial courts in ruling on

challenges invoking the Fourth Amendment, and to guide appellate

courts in reviewing the constitutionality of those rulings. In our

constitutional order, some (but not all) violations of the Fourth

Amendment trigger an extreme remedy: the exclusionary rule, which,

if applicable, provides that the improperly obtained evidence is

inadmissible against the defendant. See, e.g., id. at 12-13.

The Supreme Court has recently reemphasized the severity of the

exclusionary rule and the resulting restraint courts must show when

invoking it. "[E]xclusion 'has always been our last resort, not our

first impulse.' " Herring v. United States, 555 U.S. ___, ___, 129
S.Ct. 695, 700 (2009) (quoting Hudson v. Michigan, 547 U.S. 586, 591

(2006)). " '[T]he rule’s costly toll upon truth-seeking and law

enforcement objectives presents a high obstacle for those urging

[its] application.' " Id. at ___, 129 S.Ct. at 701 (quoting

8
Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357,

364-65 (1998)).

The "major thrust" of the rule is "a deterrent one," Terry, 392

U.S. at 12 (citing Linkletter v. Walker, 381 U.S. 618, 629-35

(1965)), targeting "police conduct which is overbearing or

harassing, or which trenches upon personal security without the

objective evidentiary justification which the Constitution

requires," id. at 15. In contrast, the rule is abused where it is

"invoked to exclude the products of legitimate police investigative

techniques." Id. at 13.
When applied to evidence recovered pursuant to an investigatory

stop, the exclusionary rule is best equipped to deter stops made not

because of legitimate suspicion, but because the stop was motivated

by some pernicious reason (such as racial profiling, personal

animus, or the like), or by arbitrariness evidencing a genuine abuse

of police power. Such a wrongful basis for the stop warrants the

application of the exclusionary rule’s severe penalty.

But not all investigatory stops arise from such base

motivations. Indeed, the Supreme Court has explicitly recognized

that conduct observed by police may be "ambiguous and susceptible of

an innocent explanation" and yet still justify an investigatory

stop, allowing the officers to "detain the individuals to resolve

the ambiguity." Illinois v. Wardlow, 528 U.S. 119, 125 (2000). The

Court in Wardlow continued:

In allowing such detentions, Terry accepts the risk
that officers may stop innocent people. Indeed, the
Fourth Amendment accepts that risk in connection with
more drastic police action; persons arrested and
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 detained on probable cause to believe they have
committed a crime may turn out to be innocent. The
Terry stop is a far more minimal intrusion, simply
allowing the officer to briefly investigate further.
If the officer does not learn facts rising to the
level of probable cause, the individual must be
allowed to go on his way.

Id. at 126. Applied injudiciously, the exclusionary rule improperly

deters this kind of legitimate police conduct, conduct that strikes

the appropriate balance between respecting the privacy citizens

enjoy under our Constitution, and preserving the state’s interest in

preventing crime.

II. Error in Application of Law to Facts

The majority today holds that the circumstances here were

insufficient to provide a reasonable suspicion for the stop that led

to Rudolph’s arrest. In my view, the majority has reached the

incorrect conclusion given the facts of this case, in part because

it ignores repeated admonishments from the United States Supreme

Court and our prior cases that the constitutionality of such stops

must be evaluated by examining the collective weight of the totality

of the circumstances.

Here, at least four circumstances could have reasonably lent

support to Officer Latchman’s conclusion that criminal activity may

have been afoot. First, the encounter at issue here occurred in the

parking lot of a shopping center that had recently experienced a

significant rise in criminal activity. As the Supreme Court has

held, "officers are not required to ignore the relevant

characteristics of a location in determining whether the

circumstances are sufficiently suspicious to warrant further

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investigation. . . . [T]he fact that the stop occurred in a 'high

crime area' [is] among the relevant contextual considerations in a

Terry analysis." Wardlow, 528 U.S. at 124 (citing Adams v.

Williams, 407 U.S. 143, 144, 147-48 (1972)). And indeed, the

majority here concedes that "[t]he fact that the stop occurred in a

'high crime area' is a relevant factor" in the reasonable suspicion

analysis. In the period leading up to this encounter, police "had

beefed up a lot of extra patrol and a lot of overtime due to the

fact that there w[ere] a lot of break-ins and robberies in that

specific shopping center."

Second, the location of the car was unusual, and inconsistent

with where and how a typical patron of the service station would be

parked. The car was located on the side of the building opposite

the gas pumps and main entrance to the station. Furthermore, the

car was "parked parallel," not in any of the marked spaces nearby.

This location was particularly odd because of the time of day;

although there was a door to the station on that side of the

building, in the officer’s experience (unquestionably a permissible

consideration in evaluating reasonable suspicion), such back doors

were rarely if ever used by customers, especially at night.

Finally, although it was after dark, the car’s lights were off.

Third, the "furtive gestures" of the car’s occupants could

reasonably have raised questions about their activities and intent.

We have previously recognized that furtive gestures are relevant in

determining whether probable cause exists for an arrest, see, e.g.,
11
Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889

(1976), and therefore they are unquestionably relevant when

evaluating the lesser standard of reasonable suspicion. Here, when

the officer pulled his vehicle within approximately one and a half

car lengths behind the parked car, he observed two individuals

within. The driver, who later turned out to be Rudolph, was

"moving around in the vehicle" in a way that suggested to the

officer that he might be "looking around for something." The other

occupant was also "moving around in the vehicle;" the officer

described the occupants’ actions as "furtive movements," "reaching

for stuff," and "ben[ding] down a couple of times."

Finally, the occupants’ decision to depart the parking lot

after encountering the officer could have been reasonably

interpreted as evasion, or at least raised the possibility that was

their motive. "[N]ervous, evasive behavior is a pertinent factor

in determining reasonable suspicion." Wardlow, 528 U.S. at 124

(citing United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975);

Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (per curiam); Sokolow,

490 U.S. at 8-9). This is especially true when coupled with other

factors. See, e.g., United States v. Briggman, 931 F.2d 705, 709

(11th Cir. 1991) (defendant was parked in lot adjacent to closed

businesses and attempted to evade police); Losee v. Dearinger, 911

F.2d 48, 49-50 (8th Cir. 1990) (defendants were parked illegally

12
behind closed business in high-crime area, and attempted to evade

police). Here, after observing the car from close distance, the

officer decided to "go around the vehicle" and around the gas

station building to "make sure everything was fine." As he rounded

the building on the opposite side from where Rudolph was parked,

the officer immediately saw the parked car starting to drive away.

It is of course true that each of these circumstances might be

wholly innocent. Indeed, when viewed in isolation from one another,
it is doubtful that any of them could provide police with a

reasonable suspicion that criminal activity may be afoot. However,

engaging in such an exercise, as the majority implicitly does,

ignores the correct application of a totality-of-circumstances test.

As the Supreme Court has made clear,

Terry, however, precludes this sort of divide-and-
conquer analysis. The officer in Terry observed the
petitioner and his companions repeatedly walk back
and forth, look into a store window, and confer with
one another. Although each of the series of acts was
"perhaps innocent in itself," we held that, taken
together, they "warranted further investigation."
392 U.S. at 22. See also Sokolow[, 409 U.S.] at 9
(holding that factors which by themselves were "quite
consistent with innocent travel" collectively
amounted to reasonable suspicion).

Arvizu, 534 U.S. at 274-75. The point, again, is that when viewed

together, circumstances – even if wholly innocent – may be

suspicious enough to warrant a reasonable officer in conducting a

Terry stop in order to "resolve the ambiguity." Our cases are in

perfect accord on this point. See, e.g., Moore v. Commonwealth, 276

Va. 747, 757, 668 S.E.2d 150, 156 (2008); Harris v. Commonwealth,

13
276 Va. 689, 695-98, 668 S.E.2d 141, 145-47 (2008); Buhrman v.

Commonwealth, 275 Va. 501, 505, 659 S.E.2d 325, 327 (2008); Bass v.

Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000). Viewed

together, the circumstances here could reasonably be considered

suspicious.

In a remarkably similar case, United States v. Dawdy, 46 F.3d

1427 (8th Cir. 1995), the Court of Appeals for the Eighth Circuit

considered a Terry stop based on an officer’s observation of a

vehicle parked, late at night, behind a closed pharmacy at which

there had been prior reported false burglary alarms. 46 F.3d at

1428. The car’s lights were off but it was occupied, and when the

officer entered the parking lot to investigate, the driver of the

car started the vehicle and began to drive toward the exit of the

lot, at which point officers stopped the car to investigate. Id. at
1428-29. The Eight Circuit held that the stop was valid,

emphasizing "not merely the presence of two men sitting in a parked

automobile at night," but also the prior suspicious activity in the

area, the occupants’ apparent lack of a legitimate business purpose,

and the occupants’ potentially evasive behavior. Id. at 1430.
The similar circumstances here suggest the same result. Like

the occupants in Dawdy, Rudolph and his companion were parked, late

at night and with the lights off, behind a business. In Dawdy,

there had merely been prior false burglary alarms, which could be

seen as less suspicious than the confirmed robberies and break-ins

here. In both cases, the likelihood of a legitimate business

purpose was slight: in Dawdy, the officer reasonably believed the

14
pharmacy was closed, while here Officer Latchman knew from

experience that gas station customers seldom used back entrances,

especially at night. When they encountered law enforcement

officers, both sets of occupants attempted to make a quick exit.

And the furtive gestures of Rudolph here – a factor not present in

Dawdy, in which the stop was deemed valid – lends further support to

the reasonableness of the stop here.

III. Error in Legal Standard Applied

In this case, the majority’s error may reach deeper than merely

misunderstanding the way the circumstances here work together to

provide a reasonable suspicion. In reaching its conclusion, the

majority appears to have applied a more exacting legal standard than

the Fourth Amendment permits, declaring legitimate police activity

unconstitutional and upsetting the delicate balance between

individual privacy and community safety.

It is possible that this divergent standard has its genesis in

a slight discrepancy in the language used by the United States

Supreme Court, and subsequently in our cases, in describing the

reasonable suspicion standard under the Fourth Amendment. In Terry,
the Supreme Court explicitly stated its holding, including the

following language: "We merely hold today that where a police

officer observes unusual conduct which leads him reasonably to

conclude in light of his experience that criminal activity may be

afoot," an investigatory stop is warranted. Terry, 392 U.S. at 30

(emphasis added). Some later cases utilize the same conditional

language. See, e.g., Sokolow, 490 U.S. at 7 ("may be afoot");

15
Arvizu, 534 U.S. at 273 ("may be afoot").

However, other reasonable suspicion cases have included more

definitive language, suggesting that circumstances must indicate

that criminal activity is afoot, or that a suspect is involved in

criminal activity. These cases include Brown v. Texas, 443 U.S. 47,

51 (1979) ("is involved in criminal activity") and Wardlow, 528 U.S.

at 123 ("criminal activity is afoot").

This disparity is reflected in our cases. Compare, e.g.,

Moore, 276 Va. at 757, 668 S.E.2d at 155 ("may be afoot"); McCain v.
Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 516 (2008) ("may be

afoot") with Harris, 276 Va. at 697, 668 S.E.2d at 147 ("is involved

in criminal activity"); Bass, 259 Va. at 475, 525 S.E.2d at 923 ("is

afoot"). In at least one case, both kinds of language are used in

subsequent sentences. See Ewell, 254 Va. at 217, 491 S.E.2d at 722-

23 ("In order to justify the brief seizure of a person by an

investigatory stop, a police officer . . . must have a reasonable

suspicion, based on objective facts, that the [person] is involved

in criminal activity. In determining whether a police officer had a

particularized and objective basis for suspecting that the person

stopped may be involved in criminal activity, a court must consider
. . . ." (emphases added) (citations and quotation marks omitted)).

These examples suggest that there may be little theoretical

difference between the two constructions. However, semantic

differences can come to acquire great practical importance over

time. The more definite language of the latter line of cases could

be easily misconstrued as a requirement that police officers have

16
some certainty that criminal activity in fact is about to commence,

is already underway, or has recently concluded. Terry and its

progeny do not go so far, but the conclusion reached by the majority

here suggests that it has.

If so, this heightened requirement forecloses a vast range of

legitimate investigatory practices, authorized by Terry, that result

in only "minimal intrusion." Far from allowing officers the limited

ability to request clarification when confronted with ambiguous

circumstances, it places a weighty and unwarranted burden of proof

on police to postpone any encounter until criminal culpability, or

at the very least probable cause to suspect a crime is underway, can

be conclusively established. This is not the holding of Terry or
the cases that have followed it, and the majority’s implementation

of this foreign requirement, which is implicit in its resolution of

this case, is error.

In this case, the majority does not properly apply the

principles articulated by the United States Supreme Court in

evaluating Terry stops. The United States Supreme Court has long

made clear that states are permitted to provide greater protections

to their citizens than the minimal levels guaranteed by the federal

Constitution; however, they must do so by means of state law,

whether embodied in state statute or state constitution. Danforth
v. Minnesota, 552 U.S. ___, ___, 128 S.Ct. 1029, 1046 (2008) (citing

Oregon v. Hass, 420 U.S. 714 (1975); Tarble’s Case, 80 U.S. 397

(1872); Ableman v. Booth, 62 U.S. 506 (1859)). States are free to

"impose higher standards on searches and seizures than required by

17
the Federal Constitution," but this must be accomplished by state

law. Virginia v. Moore, 553 U.S. ___, ___, 128 S.Ct. 1598, 1604

(2008) (quoting Cooper v. California, 386 U.S. 58, 62 (1967)).

IV. Conclusion

For all the forgoing reasons, I believe the Court of Appeals

was correct in affirming the trial court’s denial of Rudolph’s

motion to suppress and in affirming his conviction. Accordingly, I

would affirm the judgment of the Court of Appeals.

This order shall be published in the Virginia Reports and

shall be certified to the Court of Appeals and the said circuit

court.

A Copy,

Teste:

Patricia L. Harrington, Clerk

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