COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Clements, Kelsey,
McClanahan, Haley, Petty and Beales
Argued at Richmond, Virginia
GEORGE EDWARD RAAB
OPINION BY
v. Record No. 0972-06-1 JUDGE D. ARTHUR KELSEY
OCTOBER 30, 2007
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge 1
David Michael Good (David Michael Good, P.C., on brief),
for appellant.
Karri B. Atwood, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
The trial court convicted George Edward Raab of driving under the influence, his third or
subsequent offense, in violation of Code § 18.2-266. See also Code § 18.2-270. On appeal,
Raab claims the evidence obtained by the arresting officer should have been suppressed because
the officer had no legal basis to detain him. After a panel of this Court rejected this argument in
Raab v. Commonwealth, 49 Va. App. 638, 644 S.E.2d 78 (2007), Raab asked us to reconsider
the matter en banc. Having agreed to do so, we now affirm Raab’s conviction.
I.
Under settled principles, we address the legal issues arising from a suppression motion
“only after the relevant historical facts have been established.” Logan v. Commonwealth, 47
1
Judge Shockley entered the final conviction and sentencing order. Judge William R.
O’Brien ruled on Raab’s motion to suppress, the issue before us on appeal.
Va. App. 168, 171, 622 S.E.2d 771, 772 (2005) (en banc). On appeal, the facts developed in the
trial court must be reviewed “in the light most favorable to the Commonwealth, giving it the
benefit of any reasonable inferences.” Kyer v. Commonwealth, 45 Va. App. 473, 477, 612
S.E.2d 213, 215 (2005) (en banc) (citation omitted).
So viewed, the evidentiary record shows that a police officer patrolling Ocean View
Avenue at about 12:40 a.m. noticed a few vehicles in a restaurant parking lot. The restaurant had
“closed” and was “shut down” for the night, with all lights turned off. Posted signs warned that
the “parking lot was for patrons only” and that “towing was enforced.” In prior patrols, the
officer had seen vehicles parked there after the restaurant had closed. Adjacent to the
Chesapeake Bay shoreline, the parking lot was sometimes used after hours by people going to
the beach despite the patrons-only restriction.
When the officer pulled into the lot, Raab began backing his vehicle out of a parking
space. As he had on previous occasions when he suspected unauthorized vehicles in the
restaurant parking lot, the officer stopped Raab “to inquire why he was there after the business
was closed.” The officer immediately noticed an odor of alcohol coming from Raab. His eyes
were glassy and red. Raab said he had just gone “for a swim,” but his hair and clothes were dry.
After Raab failed various field sobriety tests, the officer arrested him for driving under the
influence. A later breath test showed a .15 blood alcohol content, nearly twice the legal limit.
In the trial court, Raab moved to suppress the evidence on the ground that the officer
unlawfully stopped him. Raab’s counsel acknowledged the officer “testified very credibly.”
Counsel also admitted the restaurant was closed and its lights were off. He then cited the general
trespassing statute, Code § 18.2-119, arguing that there can be no reasonable suspicion of
trespassing here because the posted signs did not expressly say “no trespassing.” Only a “clear
marking of no trespassing,” counsel continued, meets the “standard for being able to enforce the
-2-
no trespassing law or the trespass offense.” “I don’t think we would have a case,” he conceded,
if the posted signs had been “no trespassing” signs.
The trial court denied Raab’s motion to suppress. Because the posted signs specifically
forbade access to “anybody but patrons,” the court held, the officer could reasonably suspect
Raab of trespassing given that the restaurant had closed and turned off its lights. In response to
this ruling, Raab entered a conditional guilty plea stipulating to the sufficiency of the evidence
and reserving his right to appeal the denial of his suppression motion.
II.
While an arrest requires probable cause, a mere investigatory stop requires only a
“reasonable suspicion” that criminal activity “may be afoot.” United States v. Arvizu, 534 U.S.
266, 273 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989), and Terry v. Ohio, 392
U.S. 1, 30 (1968)). The likelihood of criminality “need not rise to the level required for probable
cause, and it falls considerably short of satisfying a preponderance of the evidence standard”
applicable in other contexts. Id. at 274 (citing Sokolow, 490 U.S. at 7); see also Whitfield v.
Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464-65 (2003) (summarizing standard as a
reasonable suspicion the individual “may be involved in criminal activity” (citation omitted)).
The possibility of an innocent explanation for the suspicious conduct does not necessarily
forbid an officer from making a brief, investigatory stop. See Arvizu, 534 U.S. at 274 (rejecting
the “divide-and-conquer analysis”). Terry itself involved an officer observing Terry and his
companions “repeatedly walk back and forth, look into a store window, and confer with one
another.” Arvizu, 534 U.S. at 274. “Although each of the series of acts was ‘perhaps innocent in
itself,’” collectively they were suspicious enough that a reasonable officer had grounds to stop
Terry and his companions for purposes of investigating the situation further. Id. (quoting Terry,
-3-
392 U.S. at 22). Reasonable suspicion “need not rule out the possibility of innocent conduct.”
Id. at 277 (citing Illinois v. Wardlow, 528 U.S. 119, 125 (2000)). “Thus, there may be
circumstances where wholly lawful conduct might justify the suspicion that criminal activity
‘may be’ afoot.” Richards v. Commonwealth, 8 Va. App. 612, 617, 383 S.E.2d 268, 271 (1989)
(citations omitted). As one commentator has explained:
The possibility of an innocent explanation does not deprive the
officer of the capacity to entertain a reasonable suspicion of
criminal conduct. Indeed the principal function of his investigation
is to resolve that very ambiguity and establish whether the activity
is in fact legal or illegal — to “enable the police to quickly
determine whether they should allow the suspect to go about his
business or hold him to answer charges.”
4 Wayne R. LaFave, Search and Seizure § 9.5(b), at 482 (4th ed. 2004) (citations and footnote
omitted). Given this practical focus, the Fourth Amendment bars only investigatory detentions
based upon “inarticulate hunches” devoid of any arguably supportive factual basis. Terry, 392
U.S. at 22.
Equally true, the absence of probable cause plays no role in the Terry analysis. Given its
animating principle of reasonableness, “the Fourth Amendment does not require a policeman
who lacks the precise level of information necessary for probable cause to arrest to simply shrug
his shoulders and allow a crime to occur or a criminal to escape.” United States v. Montoya de
Hernandez, 473 U.S. 531, 544 (1985) (quoting Adams v. Williams, 407 U.S. 143, 145 (1972));
see also Simmons v. Commonwealth, 217 Va. 552, 554, 231 S.E.2d 218, 220 (1977). To be
sure, a “brief stop of a suspicious individual, in order to determine his identity or to maintain the
status quo momentarily while obtaining more information” may represent the most reasonable
response an officer can give under the circumstances. Simmons, 217 Va. at 554-55, 231 S.E.2d
at 220 (quoting Adams, 407 U.S. at 146).
-4-
In this case, the factual circumstances justified a reasonable suspicion that Raab may
have been trespassing. Code § 18.2-119 criminalizes trespass by those who go on the property of
another “without authority of law” after “having been forbidden to do so” by a lawful possessor.
The warning can be “either orally or in writing” or by “a sign or signs” posted by the lawful
possessor. Code § 18.2-119. Nothing in the statute or in any interpretative caselaw requires, as
Raab argues, that posted signs use the expression “no trespassing” or similar talismanic warning
forbidding access.
Here, the posted signs warned that permission to use the parking lot was reserved “for
patrons only” and added that non-patrons could expect a “towing enforced” response by the
restaurateur. No facts suggested Raab was a patron. At 12:40 a.m., the restaurant had closed and
all of the lights were off. A restaurant closed to patrons cannot be patronized, particularly one
with its lights off during nighttime hours. It reasonably follows that Raab was likely a non-
patron subject to the restaurant’s patrons-only restriction on access to the parking lot.
Maybe so, Raab contends, but it is also possible he could have been the last employee
leaving the restaurant that night turning off the lights on his way out the door. We do not deny
this possibility. Truth be told, for all the officer knew, Raab could have been the restaurant
owner himself calling in license plate numbers to the towing company. That the suspicion of
trespassing could have been factually wrong, however, does not make it legally unreasonable.
The suspicious individuals walking up and down the sidewalk in Terry, after all, could
simply have been innocuous, albeit overly energetic, window shoppers. But that hypothesis did
not invalidate the Terry stop. See Sokolow, 490 U.S. at 9-10 (noting “Terry itself involved ‘a
series of acts, each of them perhaps innocent’” that nonetheless warranted further investigation
when viewed collectively (citation omitted)). Under the Fourth Amendment, “the relevant
inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that
-5-
attaches to particular types of noncriminal acts.” Id. at 10 (emphasis added). And, in answering
that inquiry, “common sense and ordinary human experience” take precedence over legal
abstractions and rigid criteria. United States v. Sharpe, 470 U.S. 675, 685 (1985). 2
Raab rejects this reasoning, arguing it has been displaced by a contrary view adopted in
Ewell v. Commonwealth, 254 Va. 214, 491 S.E.2d 721 (1997). We disagree. In that case, an
officer stopped a vehicle driving out of a residential apartment complex shortly after midnight.
Unfamiliar with the vehicle or its driver, the officer noticed that the vehicle had been parked in
an area known for drug dealing. Though a sign posted at the entrance of the apartment complex
barred trespassers, nothing suggested the driver was a trespasser. Ewell held no reasonable
suspicion of trespassing could arise under these circumstances.
We fail to see how the residential apartment complex in Ewell can be sensibly analogized
to a closed, unlit commercial restaurant. Apartment complexes do not close for the night.
Residents and guests come and go as they please. Restaurants, on the other hand, can and do
close to everyone. Patrons do not come and go from a closed, unlit restaurant in the middle of
the night. That fact alone, coupled with the patrons-only restriction, suggested Raab had no
authority to be there. The holding in Ewell, therefore, warranted a different conclusion because
2
On brief, Raab contends the officer never explicitly testified that he stopped Raab to
investigate a possible criminal “trespass” ⎯ his point being that an articulable suspicion under
Terry must be specifically articulated by the officer from the witness stand. Not so. “An action
is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind,
‘as long as the circumstances, viewed objectively, justify [the] action.’” Brigham City v. Stuart,
126 S. Ct. 1943, 1948 (2006) (emphasis in original and citations omitted). “It is important to
remember that ‘we are not limited to what the stopping officer says or to evidence of his
subjective rationale; rather, we look to the record as a whole to determine what facts were known
to the officer and then consider whether a reasonable officer in those circumstances would have
been suspicious.’” United States v. Brown, 232 F.3d 589, 594 (7th Cir. 2000) (citation omitted).
Consequently, the “police officer conducting a stop is not required to ‘precisely and individually
articulate the facts that added up to suspicion in his mind.’” Id. (citation omitted).
-6-
it rested on fundamentally different circumstances ⎯ providing an apt illustration of the general
rule that, “because the mosaic which is analyzed for a reasonable-suspicion or probable-cause
inquiry is multifaceted, ‘one determination will seldom be a useful precedent for another.’”
Ornelas v. United States, 517 U.S. 690, 698 (1996) (citation omitted). 3
III.
Because the trial court did not err in denying Raab’s motion to suppress, we affirm his
conviction for driving under the influence.
Affirmed.
3
The same can be said of Harris v. Commonwealth, 262 Va. 407, 551 S.E.2d 606 (2001).
The suspicion of trespassing was found unreasonable in Harris because the evidence merely
showed “three persons standing and conversing near an apparent bus stop adjoining a public
street at midday” in an apartment complex that forbid trespassers. Id. at 416, 551 S.E.2d at
610-11. The only circumstance suggesting the three were trespassing (in the middle of the day at
an apparent bus stop) was that the police officers were not familiar with any of them. The facts
of Harris, like Ewell, cannot be usefully analogized to a suspected trespasser seen after midnight
in a parking lot of a closed, unlit commercial restaurant in which access has been expressly
denied to anyone but patrons.
-7-
Humphreys, J., dissenting.
Because I believe that Ewell v. Commonwealth, 254 Va. 214, 491 S.E.2d 721 (1997), and
Harris v. Commonwealth, 262 Va. 407, 551 S.E.2d 606 (2001), control the outcome of this case,
I would hold that the trial court erred in denying Raab’s motion to suppress. Accordingly, I
respectfully dissent.
“A police officer may stop and detain a person ‘for purposes of investigating possible
criminal behavior even though there is no probable cause to make an arrest.’” Ford v.
Commonwealth, 28 Va. App. 249, 255, 503 S.E.2d 803, 805 (1998) (quoting Terry v. Ohio, 392
U.S. 1, 22 (1968)). “In order to justify the stop, the fourth amendment requires that the officer
have a ‘reasonable suspicion, based on objective facts, that the individual is involved in criminal
activity.’” Woodson v. Commonwealth, 14 Va. App. 787, 792, 421 S.E.2d 1, 4 (1992) (quoting
Moss v. Commonwealth, 7 Va. App. 305, 307-08, 373 S.E.2d 170, 172 (1988)). In my view,
appellate courts have occasionally blurred the distinction between probable cause to support an
arrest or search and the much lesser standard of reasonable suspicion that a crime has occurred,
is occurring, or is about to occur, thereby constitutionally justifying a brief investigative
detention. Nevertheless, we are bound by the Supreme Court’s decisions in Ewell and Harris.
In the present case, a police officer spotted three vehicles in the parking lot of a restaurant
at 12:40 a.m. The restaurant “appeared” to be closed for the evening, and had a “patrons
only/towing enforced” sign posted. The restaurant was not in the officer’s normal patrol area,
and the officer did not testify as to whether he knew what time the restaurant closed. The officer
testified that he pulled into the lot to inquire why the individuals were in the parking lot after
hours. As the officer pulled in to the parking lot, “[he] scanned the parking lot real quick and
[Raab’s] vehicle was backing out from the spot where he was.” The officer then pulled up and
parked perpendicular to Raab’s vehicle to prevent him from exiting the lot in order to investigate
-8-
Raab’s reason for being on the property. 4 The Commonwealth argues, and the majority holds
that the officer in this case had a reasonable, articulable suspicion to believe that Raab was
trespassing. Because of the precedent set forth in Ewell and Harris, I must disagree.
In Ewell, the Virginia Supreme Court held that a police officer was not justified in
stopping and detaining the operator of a vehicle that he suspected of trespassing. The officer
worked part-time as a security guard for an apartment complex when he was off-duty. Ewell,
254 Va. at 215, 491 S.E.2d at 722. He was “employed primarily to enforce the complex’s policy
against trespassing.” Id. At the entrance to the complex, there was a “ten-by-five foot, lighted
sign stating ‘no trespassing.’” Id. The officer testified that, “he was familiar with most of the
complex’s residents and their automobiles,” and “was concerned because it was [12:30 in the
morning] and the car was parked in front of an apartment suspected of ‘high narcotics’
trafficking.” Id. at 216, 491 S.E.2d at 722. “Additionally, the operator of the car attempted to
leave the parking lot immediately upon [the officer’s] arrival in his marked vehicle.” Id.
Because the officer recognized neither Ewell nor her vehicle, he stopped the vehicle “to inquire
whether its operator was trespassing.” Id. The Court held that the officer’s perceptions and
suspicions were no more than a hunch, falling short of the reasonable, articulable suspicion
required for a stop. Id. at 217, 491 S.E.2d at 723.
In Harris, the Virginia Supreme Court held that a police officer was not justified in
conducting a non-consensual stop of an individual that the officer believed was “possibly
trespassing” at an apartment complex. Harris, 262 Va. at 410, 551 S.E.2d at 607. The officer
was familiar with most residents of the apartment complex and their regular visitors because he
had “worked for two and one-half years in a drug elimination program” at the complex. Id. A
4
The other vehicles left while the officer was conducting the stop of Raab’s vehicle.
-9-
“no trespassing” sign was posted on at least one of the buildings in the complex. Id. The officer
observed three men standing near a bench that had previously been used as a bus stop which was
a “short distance” from the “no trespassing” sign. Id. The officer conducted a non-consensual
stop of the men because he did not recognize them as residents or regular visitors of the complex
and believed they were “possibly trespassing.” Id. Citing Ewell, the Supreme Court of Virginia
held that the officer “lacked a sufficient reasonable, articulable suspicion” that the individuals
were trespassing. Id. at 417, 551 S.E.2d at 611. The Court compared the factual situation in
Harris to that in Ewell, noting that “each officer had no more than an ‘unparticularized suspicion
or “hunch”’ that criminal activity was afoot. As such, each officer’s subjective belief that the
individual might be a trespasser was not sufficient to warrant a non-consensual investigatory
detention.” Id. at 416, 551 S.E.2d at 611 (quoting (Terry, 392 U.S. at 27).
The majority attempts to distinguish the instant facts from those in Ewell. The distinction
the majority makes between this case and Ewell or, for that matter, Harris is, in my view, one
without a difference. In essence, the majority holds that because an apartment complex does not
close and a restaurant does, it is more reasonable to assume that Raab was not lawfully in the
parking lot. In other words, the majority holds that Raab’s mere presence in the parking lot of a
closed restaurant at 12:40 in the morning is a sufficient “particularized and objective basis” for
suspecting that Raab was trespassing. The majority reasons that because “no facts suggested
Raab was a patron,” and because “a restaurant closed to patrons cannot be patronized . . . [i]t
reasonably follows that Raab was likely a non-patron subject to the restaurant’s patrons-only
restriction on access to the parking lot.” Although this may be true, this singular fact, applied
against the precedent set forth in Ewell and Harris, is insufficient as a matter of law to support a
finding of reasonable suspicion.
- 10 -
In Ewell, the officer conducting the stop was familiar with most residents of the complex,
and their vehicles, but he did not recognize Ewell or her car. He knew that the apartment in front
of which the car was parked was a high drug-trafficking area. Furthermore, when the officer
arrived in a marked car, Ewell immediately attempted to leave. Based on his knowledge and the
attendant circumstances, the officer had several reasons to believe that Ewell was trespassing.
However, the Virginia Supreme Court found that these facts were insufficient to support a
reasonable suspicion that Ewell was trespassing.
In Harris, the officer making the stop was also familiar with the location where the stop
occurred. He had been involved in a drug elimination program at the apartment complex for
over two years. The officer knew most of the residents and their regular visitors but did not
recognize Harris. The officer saw Harris and two other men loitering near a bus stop that was no
longer in use. In other words, the bus stop was closed. Based on that knowledge, the officer
believed that Harris was “possibly trespassing.” However, the Virginia Supreme Court held that
the facts were insufficient to support a reasonable suspicion that Harris was trespassing. In both
Ewell and Harris, the Supreme Court held that the information available to the officer could give
rise to no more than a “hunch” that the suspected individuals were trespassing.
In this case, the officer’s only basis for reasonable suspicion was that Raab was leaving
the parking lot of an apparently closed restaurant. However, unlike in Ewell, there is no
evidence that Raab’s attempt to leave was in response to the officer’s arrival. Furthermore,
unlike the officers in both Ewell and Harris, the officer here was not particularly familiar with
the location of the stop. The restaurant was not in the officer’s “normal patrol” area. The record
also does not indicate what time the restaurant closed or that the officer had that information
available to him. When the officer arrived, Raab was pulling out of his parking spot and the two
- 11 -
other vehicles were apparently preparing to leave as well. 5 As such, it is equally likely, in
viewing the totality of the circumstances, that Raab was the restaurant’s owner, an employee, or
a late departing patron and, thus, lawfully on the premises. Thus, it is apparent that the officer
here had even less reason to be suspicious of criminal activity than the officers in Ewell and
Harris.
Because an officer’s familiarity with the residents of a complex, and the presence of
drug-trafficking, coupled with the defendant’s attempt to leave the complex upon the officer’s
arrival, is insufficient to support a finding of reasonable suspicion, see Ewell, 254 Va. 214, 491
S.E.2d 721; Harris, 262 Va. at 410, 551 S.E.2d at 607, I do not believe that the facts in this case
rise any higher than a similar “hunch.” Accordingly, I would hold that under Ewell and Harris,
the trial court erred in denying the motion to suppress, and I would reverse and remand for a new
trial if the Commonwealth be so advised.
5
Both of the other vehicles left while the officer spoke with Raab.
- 12 -
VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 5th day of June, 2007.
George Edward Raab, Appellant,
against Record No. 0972-06-1
Circuit Court No. CR05-4269
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Felton, Judges Benton, Elder, Frank, Humphreys, Clements, Kelsey, McClanahan,
Haley, Petty, and Beales
On May 14, 2007 came the appellant, by counsel, and filed a petition requesting that the Court set
aside the judgment rendered herein on May 1, 2007, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered
herein on May 1, 2007 is stayed pending the decision of the Court en banc, and the appeal is reinstated
on the docket of this Court.
Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is
established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of
entry of this order; appellee shall file an appellee’s brief upon rehearing en banc within 14 days of the
date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc
within 14 days of the date on which the appellee’s brief is filed. The appellant shall attach as an
addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the
Court in this matter. It is further ordered that the appellant shall file twelve additional copies of the
appendix previously filed in this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Kelsey and Senior Judge Bumgardner
Argued at Chesapeake, Virginia
GEORGE EDWARD RAAB
OPINION BY
v. Record No. 0972-06-1 JUDGE D. ARTHUR KELSEY
MAY 1, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge 1
David Michael Good (Anderson & Good, P.C., on brief), for
appellant.
Rosemary V. Bourne, Assistant Attorney General (Robert F.
McDonnell, Attorney General; Karri B. Atwood, Assistant
Attorney General, on brief), for appellee.
The trial court convicted George Edward Raab of driving under the influence, his third or
subsequent offense, in violation of Code § 18.2-266. See also Code § 18.2-270 (codifying
recidivism penalty). On appeal, Raab contends the evidence of his guilt should have been
suppressed because the arresting officer had no legal basis to detain him in the first place. The
trial court disagreed, as do we.
I.
Under settled principles, we address the legal issues arising from a suppression motion
“only after the relevant historical facts have been established.” Logan v. Commonwealth, 47
Va. App. 168, 171, 622 S.E.2d 771, 772 (2005) (en banc). On appeal, the facts developed in the
trial court must be reviewed “in the light most favorable to the Commonwealth, giving it the
1
Judge Shockley entered the final conviction and sentencing order. Judge William R.
O’Brien ruled on Raab’s motion to suppress, the issue before us on appeal.
benefit of any reasonable inferences.” Kyer v. Commonwealth, 45 Va. App. 473, 477, 612
S.E.2d 213, 215 (2005) (en banc) (citation omitted).
So viewed, the evidentiary record shows that a police officer patrolling Ocean View
Avenue at about 12:40 a.m. noticed a few vehicles in a restaurant parking lot. The restaurant had
“closed” and was “shut down” for the night, with all lights turned off. Posted signs warned that
the “parking lot was for patrons only” and that “towing was enforced.” In prior patrols, the
officer had seen vehicles parked there after the restaurant had closed. Adjacent to the
Chesapeake Bay shoreline, the parking lot was sometimes used after hours by people going to
the beach despite the patrons-only restriction.
When the officer pulled into the lot, Raab began backing his vehicle out of a parking
space. As he had on previous occasions when he suspected unauthorized vehicles in the
restaurant parking lot, the officer stopped Raab “to inquire why he was there after the business
was closed.” The officer immediately noticed an odor of alcohol coming from Raab. His eyes
were glassy and red. Raab said he had just gone “for a swim,” but his hair and clothes were dry.
After Raab failed various field sobriety tests, the officer arrested him for driving under the
influence. A later breath test showed a .15 blood alcohol content, nearly twice the legal limit.
In the trial court, Raab moved to suppress all evidence of his guilt on the ground that the
officer unlawfully stopped him. Raab’s counsel acknowledged the officer “testified very
credibly.” Counsel also admitted the restaurant was closed and its lights were off. He then cited
the general trespassing statute, Code § 18.2-119, arguing that there can be no reasonable
suspicion of trespassing here because the posted sign did not expressly say “no trespassing.”
Only a “clear marking of no trespassing,” counsel continued, meets the “standard for being able
to enforce the no trespassing law or the trespass offense.” “I don’t think we would have a case,”
he conceded, if the posted sign had been a “no trespassing” sign.
-2-
The trial court denied Raab’s motion to suppress. Because the posted signs specifically
forbade access to “anybody but patrons,” the court held, the officer could reasonably suspect
Raab of trespassing given that the restaurant had closed and turned off its lights. In response to
this ruling, Raab entered a conditional guilty plea stipulating to the sufficiency of the evidence
and preserving his right to appeal the denial of his suppression motion.
II.
While an arrest requires probable cause, a mere investigatory stop requires only a
“reasonable suspicion” that criminal activity “may be afoot.” United States v. Arvizu, 534 U.S.
266, 273 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989), and Terry v. Ohio, 392
U.S. 1, 30 (1968)). The likelihood of criminality “need not rise to the level required for probable
cause, and it falls considerably short of satisfying a preponderance of the evidence standard”
applicable in other contexts. Id. at 274 (citing Sokolow, 490 U.S. at 7); see also Whitfield v.
Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464-65 (2003) (summarizing standard as a
reasonable suspicion the individual “may be involved in criminal activity” (citation omitted)).
The possibility ⎯ even a more-likely-than-not probability ⎯ of an innocent explanation
for the conduct does not necessarily forbid an officer from making a brief, investigatory stop.
See Arvizu, 534 U.S. at 274 (rejecting the “divide-and-conquer analysis”). Terry itself involved
an officer observing Terry and his companions “repeatedly walk back and forth, look into a store
window, and confer with one another.” Arvizu, 534 U.S. at 274. “Although each of the series of
acts was ‘perhaps innocent in itself,’” collectively they were suspicious enough that a reasonable
officer had grounds to stop Terry and his companions for purposes of investigating the situation
further. Id. (quoting Terry, 392 U.S. at 22).
-3-
Reasonable suspicion, therefore, “need not rule out the possibility of innocent conduct.”
Id. at 277 (citing Illinois v. Wardlow, 528 U.S. 119, 125 (2000)). “Thus, there may be
circumstances where wholly lawful conduct might justify the suspicion that criminal activity
‘may be’ afoot.” Richards v. Commonwealth, 8 Va. App. 612, 617, 383 S.E.2d 268, 271 (1989)
(citations omitted). The Fourth Amendment bars only investigatory detentions based upon
“inarticulate hunches” devoid of any arguably supportive factual basis. Terry, 392 U.S. at 22. 2
In this case, the factual circumstances justified a reasonable suspicion that Raab may
have been trespassing. Code § 18.2-119 criminalizes trespass by those who go on the property of
another “without authority of law” after “having been forbidden to do so” by a lawful possessor.
The warning can be “either orally or in writing” or “by a sign or signs” posted by the lawful
possessor. Code § 18.2-119. Nothing in the statute or in any interpretative caselaw requires, as
Raab argues, that posted signs use the words “no trespassing” or a similar talismanic expression. 3
Here, the posted signs warned that permission to use the parking lot was reserved “for
patrons only,” adding that non-patrons could expect a “towing enforced” response by the
restaurateur. No facts suggested Raab was a patron. At 12:40 a.m., the restaurant had closed and
all of the lights were off. A restaurant closed to patrons cannot be patronized, particularly one
with its lights off during nighttime hours. It reasonably follows that Raab was likely a
non-patron subject to the restaurant’s patrons-only restriction on access to the parking lot.
2
See also Shiflett v. Commonwealth, 47 Va. App. 141, 146, 622 S.E.2d 758, 760-61
(2005); Alston v. Commonwealth, 40 Va. App. 728, 739-40, 581 S.E.2d 245, 250-51 (2003);
McGee v. Commonwealth, 25 Va. App. 193, 202, 487 S.E.2d 259, 263 (1997) (en banc); Logan
v. Commonwealth, 19 Va. App. 437, 441-42, 452 S.E.2d 364, 367 (1994) (en banc).
3
A sign must be posted “at a place or places where it or they may be reasonably seen” by
those subject to the access limitations. Code § 18.2-119. At oral argument on appeal, Raab
suggested the patrons-only signs could not be reasonably seen. Because he never raised that
issue in the trial court, we need not address it on appeal. See Rule 5A:18.
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Maybe so, Raab contends, but it is also possible he could have been the last employee
leaving the restaurant that night turning off the lights on his way out the door. We do not deny
this possibility. Truth be told, for all the officer knew, Raab could have been the restaurant
owner himself calling in license plate numbers to the towing company. That the suspicion of
trespassing could have been factually wrong, however, does not make it legally unreasonable.
The suspicious individuals walking up and down the sidewalk in Terry, after all, could simply
have been innocuous, albeit overly energetic, window shoppers. But that hypothesis did not
invalidate the Terry stop. See Sokolow, 490 U.S. at 9-10 (noting “Terry itself involved ‘a series
of acts, each of them perhaps innocent’” that nonetheless warranted further investigation when
viewed collectively (citation omitted)). Under the Fourth Amendment, “the relevant inquiry is
not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches
to particular types of noncriminal acts.” Id. at 10. 4
Raab rejects this reasoning, arguing it has been displaced by a contrary view adopted in
Ewell v. Commonwealth, 254 Va. 214, 491 S.E.2d 721 (1997). We disagree. In that case, an
officer stopped a vehicle driving out of a residential apartment complex shortly after midnight.
Unfamiliar with the vehicle or its driver, the officer noticed that the vehicle had been parked in
4
On brief, Raab contends the officer never explicitly testified that he stopped Raab to
investigate a possible criminal “trespass” ⎯ his point apparently being that an articulable
suspicion under Terry must be specifically articulated by the officer from the witness stand. Not
so. “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual
officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’”
Brigham City v. Stuart, 126 S. Ct. 1943, 1948 (2006) (emphasis in original and citations
omitted). “It is important to remember that ‘we are not limited to what the stopping officer says
or to evidence of his subjective rationale; rather, we look to the record as a whole to determine
what facts were known to the officer and then consider whether a reasonable officer in those
circumstances would have been suspicious.’” United States v. Brown, 232 F.3d 589, 594 (7th
Cir. 2000) (citation omitted). Consequently, the “police officer conducting a stop is not required
to ‘precisely and individually articulate the facts that added up to suspicion in his mind.’” Id.
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an area known for drug dealing. Though a sign posted at the entrance of the apartment complex
barred trespassers, nothing suggested the driver was a trespasser. Ewell held no reasonable
suspicion of trespassing could arise under these circumstances.
We fail to see how the residential apartment complex in Ewell can be sensibly analogized
to a closed, unlit commercial restaurant. Apartment complexes do not close for the night.
Residents and guests come and go as they please. Restaurants, on the other hand, can and do
close to everyone. Patrons do not come and go from a closed, unlit restaurant in the middle of
the night. That fact alone, coupled with the patrons-only restriction, suggested Raab had no
authority to be there. The holding in Ewell, therefore, warranted a different conclusion because
it rested on fundamentally different circumstances ⎯ providing an apt illustration of the general
rule that, “because the mosaic which is analyzed for a reasonable-suspicion or probable-cause
inquiry is multifaceted, ‘one determination will seldom be a useful precedent for another.’”
Ornelas v. United States, 517 U.S. 690, 698 (1996) (citation omitted).
III.
Because the trial court did not err in denying Raab’s motion to suppress, we affirm his
conviction for driving under the influence, his third or subsequent offense, in violation of Code
§ 18.2-266.
Affirmed.
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Humphreys, J., dissenting.
Because I believe that Ewell v. Commonwealth, 254 Va. 214, 491 S.E.2d 721 (1997),
controls the outcome of this case, I would hold that the trial court erred in denying Raab’s
motion to suppress. Accordingly, I respectfully dissent.
Reasonable, articulable suspicion to support an investigative detention must be based on
objective facts, Zimmerman v. Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988),
and whether a police officer had a “particularized and objective basis” for suspecting that the
person seized was engaged in some form of criminal activity is considered in light of the totality
of the circumstances. Ewell, 254 Va. at 217, 491 S.E.2d at 723.
In Ewell, the Virginia Supreme Court held that an off-duty police officer working as a
security guard in an apartment complex was not justified in stopping and detaining the operator
of a vehicle leaving the complex’s parking lot. The officer testified that, “he was familiar with
most of the complex’s residents and their automobiles,” and “was concerned because it was very
early [in the morning] and the car was parked in an area suspected of ‘high narcotics’
trafficking.” Id. at 216, 491 S.E.2d at 722. “Additionally, the operator of the car attempted to
leave the parking lot immediately upon [the officer’s] arrival in his marked vehicle.” Id. And
because the officer recognized neither Ewell nor her vehicle, he stopped the vehicle “to inquire
whether its operator was trespassing.” Id. The Court held that the officer’s perceptions and
suspicions were no more than a hunch, falling short of the reasonable, articulable suspicion
required for a stop. Id. at 217, 491 S.E.2d at 723. Moreover, the Court found that Ewell “acted
as any other person might have acted under similar circumstances.” Id.
In the present case, the officer spotted three vehicles in the parking lot of a restaurant at
12:40 a.m. The restaurant “appeared” to be closed for the evening, and had a “patrons
only/towing enforced” sign posted. The officer testified that he pulled into the lot to inquire why
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the individuals were in the parking lot after hours. As the officer pulled in to the parking lot,
“[he] scanned the parking lot real quick and [Raab’s] vehicle was backing out from the spot
where he was.” The officer then pulled up and parked perpendicular to Raab’s vehicle to prevent
him from exiting the lot. 5 The Commonwealth argues, 6 and the majority holds that these facts
are sufficient to support the claim that the officer had a reasonable, articulable suspicion to
believe that Raab was engaged in criminal activity. Because of the precedent set forth in Ewell, I
must disagree.
In my view, appellate courts have occasionally blurred the distinction between probable
cause to support an arrest or search, and the much lesser standard of reasonable suspicion that a
crime has occurred, is occurring, or is about to occur, thereby constitutionally justifying a brief
detention and investigation. Nonetheless, Ewell is binding on this Court and the distinction
advanced by the majority, in my view, is one without a difference. In essence, the majority holds
that because an apartment complex like that in Ewell does not close, and a restaurant does, it is
more reasonable to assume that Raab was not lawfully in the parking lot. In other words, Raab’s
mere presence in the parking lot of a closed restaurant is a sufficient “particularized and
5
The other vehicles left while the officer was conducting the stop of Raab’s vehicle.
6
The Commonwealth maintains that the objective facts available to the officer, taken in
their entirety, support the trial court’s conclusion that the stop was lawful. Citing United States
v. Briggman, 931 F.2d 705 (11th Cir. 1991), the Commonwealth makes much of the fact that
Raab was parked in the lot of a business that appeared to be closed. However, in Briggman, the
fact that the defendant was parked in a closed lot was only one of many factors suggesting that
criminal activity was afoot. Specifically, the Eleventh Circuit found that, because Briggman
“was parked in a parking lot at 4:00 a.m. in a high crime area, when commercial establishments
served by the lot were closed for the night,” and because “in departing the parking lot, Briggman
attempted to evade the officer,” the stop was justified. Id. at 709. Thus, Briggman’s mere
presence alone was not the basis for the court’s holding. Rather, Brigmann’s presence, the
location, the time of night, and Brigmann’s attempt to evade the officer, were sufficient to find
that the officer had reasonable suspicion to believe that criminal activity was afoot.
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objective basis” for suspecting that Raab was engaged in some form of criminal activity,
specifically trespassing. The majority reasons that because “[n]o facts suggested Raab was a
patron,” and because “a restaurant closed to patrons cannot be patronized . . . [i]t reasonably
follows that Raab was likely a non-patron subject to the restaurant’s patrons-only restriction on
access to the parking lot.” Although this may well be true, this singular fact, applied against the
precedent set forth in Ewell, is insufficient as a matter of law to support a finding of reasonable
suspicion.
In Ewell, the officer conducting the stop was familiar with most of the residents in the
complex, as well as their vehicles. He also knew that the area in which the car was parked was a
high drug-trafficking area. Moreover, when the officer pulled into the complex, Ewell attempted
to leave. Because of this knowledge, and the attendant circumstances, the officer had reason to
believe that Ewell was not a resident, and thus, detained Ewell long enough to investigate his
suspicion that Ewell was trespassing on private property. However, the Virginia Supreme Court
found that these facts were insufficient to support a reasonable suspicion that Ewell was engaged
in criminal activity, specifically trespassing. Said differently, the Court found that these facts,
without more, amounted to a mere “hunch” that Ewell was unlawfully on the property.
In this case, the only fact even remotely supporting the assertion that Raab was
unlawfully on the premises, or otherwise engaged in criminal activity, is that fact that the
restaurant appeared to be closed. However, there were two other vehicles in the lot at the time of
the seizure. Moreover, the record does not indicate what time the restaurant closed, or that the
officer had that information available to him. As such, it is equally likely, in viewing the totality
of the circumstances, that Raab could have been the restaurant’s owner, an employee, or a late
departing patron and thus, was lawfully on the premises. And even though reasonable suspicion
“need not rule out the possibility of innocent conduct,” United States v. Arvizu, 534 U.S. 266,
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277 (2002), the facts available to the officer at the time of the stop must still give rise to more
than an “inchoate and unparticularized suspicion or ‘hunch,” Terry v. Ohio, 392 U.S. 1, 27
(1968).
Because an officer’s familiarity with the residents of a complex, and the presence of
drug-trafficking, coupled with the defendant’s attempt to leave the complex upon the officer’s
arrival, is insufficient to support a finding of reasonable suspicion, see Ewell, 254 Va. 214, 491
S.E.2d 721, I do not believe that the facts in this case rise any higher than a similar “hunch.”
Accordingly, I would hold that under the holding in Ewell, the trial court erred in denying the
motion to suppress, and I would reverse and remand for a new trial if the Commonwealth be so
advised.
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