PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, and Lemons,
JJ., and Compton, S.J., and Whiting, R.J.
JOHNNY MAURICE WHITFIELD OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 021520 February 28, 2003
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The sole question in this criminal appeal is whether the
Court of Appeals of Virginia correctly approved a circuit
court's refusal to suppress certain evidence gathered following
defendant's detention by the police.
Defendant Johnny Maurice Whitfield was indicted in the
Circuit Court of the City of Newport News for possession of
cocaine with the intent to distribute it. Prior to arraignment,
he moved the court to suppress evidence seized from his person
when he was detained and arrested without a warrant.
Subsequently, during a bench trial, the court denied the
motion and found the defendant guilty as charged. Later, he was
sentenced to incarceration and fined.
The Court of Appeals denied the defendant's petition for
appeal in an unpublished order. Whitfield v. Commonwealth,
Record No. 2978-01-1 (May 22, 2002). We awarded defendant this
appeal from the Court of Appeals' judgment.
The facts are undisputed. On January 26, 2001, about 3:30
a.m., J. L. Barnes, a uniformed Newport News police officer in a
marked police vehicle was patrolling an area of the city known
for illegal drug activity, burglaries, and prostitution.
Although there was no report of criminal activity at that
particular time, "several burglaries" recently had occurred in
that "neighborhood."
The officer noticed the defendant dressed in "all black,"
standing on private property "15 feet from the roadway" between
a condemned house and an occupied dwelling. The officer knew
that the area was not "a common cut-through" to other property.
The officer "shined" the spotlight of the police vehicle
"directly on that subject, and at that time the subject turned
around and took off running between the houses, going to the
back of the house." The officer "exited" his vehicle in an
attempt to "catch" defendant, who then was walking at "a fast
pace" and "looking over his shoulder" at the officer.
D. A. Bonday, another uniformed police officer in a marked
police vehicle, arrived on the scene to assist Barnes. Bonday
"went in foot pursuit of the subject," who ran from the officer
in "a zig-zag direction, back and forth" across the street. The
defendant then ran between houses and unsuccessfully attempted
to climb a six-foot fence. Bonday detained defendant, who "had
his hands in his pockets."
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Upon being detained, defendant possessed a cigar tube in
one hand and a clear plastic bag in the other. These items
contained "numerous rocks" of crack cocaine.
In this appeal, the defendant, citing Terry v. Ohio, 392
U.S. 1 (1968), contends that officer Barnes did not "have a
reasonable, articulable suspicion of criminal activity when he
first observed [defendant] and decided to detain him for a Terry
stop." We do not agree.
The Fourth Amendment to the Constitution of the United
States provides, as pertinent here, that "[t]he right of the
people to be secure in their persons, . . . and effects, against
unreasonable searches and seizures, shall not be violated." We
apply settled standards of appellate review to decide the
present claim that evidence was seized in violation of the
Fourth Amendment.
Such a claim presents a mixed question of fact and law that
an appellate court reviews de novo. Murphy v. Commonwealth, 264
Va. 568, 573, 570 S.E.2d 836, 838 (2002). In evaluating the
claim, the appellate court must give deference to the factual
findings of the trial court and independently determine whether
the manner in which the evidence was obtained meets the
requirements of the Fourth Amendment. Id.
While "the Commonwealth has the burden of proving the
legitimacy of a warrantless search and seizure," Simmons v.
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Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989), the
defendant must show that the trial court's denial of his
suppression motion, when the evidence is considered in the light
most favorable to the prosecution, was reversible error.
Murphy, 264 Va. at 573, 570 S.E.2d at 838.
The Supreme Court has recognized that a police officer in
appropriate circumstances may detain a person for the purpose of
investigating possibly criminal behavior, even though there is
no probable cause to make an arrest. Terry, 392 U.S. at 22.
Accord Murphy, 264 Va. at 573, 570 S.E.2d at 839; Ewell v.
Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722 (1997). In
order to justify the brief seizure of a person by such an
investigatory stop, the police officer must "have a reasonable
suspicion, based on objective facts, that the individual is
involved in criminal activity." Brown v. Texas, 443 U.S. 47, 51
(1979). Accord Zimmerman v. Commonwealth, 234 Va. 609, 611, 363
S.E.2d 708, 709 (1988).
To determine 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 the
totality of the circumstances. Ewell, 254 Va. at 217, 491
S.E.2d at 722-23 (citing United States v. Cortez, 449 U.S. 411,
417-18 (1981)). Accord Leeth v. Commonwealth, 223 Va. 335, 340,
288 S.E.2d 475, 478 (1982).
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In the present case, when considering the totality of the
circumstances, and viewing the facts in the light most favorable
to the Commonwealth, we conclude that the police had a
reasonable suspicion, based on objective facts, that defendant
may have been engaged in criminal activity.
About 3:30 a.m., Officer Barnes observed defendant,
apparently trespassing on private property, near an abandoned
building in an area notorious for crime problems. When the
officer aimed the spotlight of his marked police vehicle toward
defendant, he began to run away. When Officer Bonday joined the
chase, defendant continued to run and to evade the officer.
When defendant could not escape over a high fence, he was
detained.
The characteristics of the area and the defendant's
conduct, including his unprovoked flight, justified the stop,
and further investigation. "[N]ervous, evasive behavior is a
pertinent factor in determining reasonable suspicion. (citations
omitted) Headlong flight – wherever it occurs – is the
consummate act of evasion: it is not necessarily indicative of
wrongdoing, but it is certainly suggestive of such." Illinois
v. Wardlow, 528 U.S. 119, 124 (2000).
Consequently, we hold that the Court of Appeals correctly
approved the circuit court's refusal to suppress the evidence
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seized from defendant's person. Thus, the judgment confirming
the conviction will be
Affirmed.
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