COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia
GREGORY TYRONE ALSTON
OPINION BY
v. Record No. 3442-01-2 JUDGE JEAN HARRISON CLEMENTS
JUNE 3, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
David M. Gammino for appellant.
Marla Graff Decker, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Gregory Tyrone Alston was convicted on his conditional
guilty plea of possession of more than one-half ounce but less
than five pounds of marijuana with intent to distribute, in
violation of Code § 18.2-248.1. On appeal, Alston contends the
trial court erred in denying his motion to suppress the
marijuana found on his person and in his car as the product of
an unlawful seizure that violated his Fourth Amendment rights.
Finding no error, we affirm the judgment of the trial court.
I. Background
In reviewing a trial court's denial of a motion to suppress,
we view the evidence and all reasonable inferences fairly
deducible from that evidence in the light most favorable to the
Commonwealth, the party prevailing below. See Weathers v.
Commonwealth, 32 Va. App. 652, 656, 529 S.E.2d 847, 849 (2000).
So viewed, the evidence presented in this case established that
on July 27, 2001, Richmond City Police Officer Brian Hixson was
on routine patrol with Officer Timothy DeGrauwe and Officer
Durham. The three officers were in one patrol car, which Hixson
was driving. At approximately 10:55 a.m., the officers pulled
into the property known as the Ruffin Road apartment complex.
The apartment complex was posted with "no trespassing" signs.
After driving approximately fifty yards into the complex,
Hixson observed a purple Nissan car in the complex "come around
the corner" and head in the officers' direction. Alston, whom
Hixson did not know at the time, was driving the car, and there
were two passengers in the rear seat and one in the front seat.
As Alston drove by the patrol car, Hixson recognized the
passenger in the front seat as Pierre Stanberry, someone who
Hixson knew had been banned by court order from entering the
Ruffin Road apartment complex. Hixson had previously arrested
Stanberry for trespassing on that property at least twice, the
last time occurring in September or October of 2000.
Hixson turned the patrol car around to investigate Stanberry's
presence in the complex. The officers observed Alston pull up
to Ruffin Road at the entrance/exit of the apartment complex and
activate his turn signal "indicating [he was] going to make a
left-hand turn" onto Ruffin Road. Then, "[a]ll of a sudden[,]
the left turn signal went off and [Alston] made a quick right
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turn" onto Ruffin Road. Almost immediately, Alston pulled to
the side of the road directly in front of a parked car, parked,
and "quickly" got out of the car and started walking away.
Hixson, who had followed Alston onto Ruffin Road, pulled
over next to Alston's car, stopping in the road. He then
stepped out of his vehicle and "asked" Alston, who had walked
"into the roadway, right in front of [the police] vehicle," to
"have a seat back in his car." Because the patrol car was "in
the travel lane of Ruffin Road," Hixson activated the car's
emergency lights at some point. 1
Complying with Hixson's request to return to his car,
Alston went back to his car and got in. Hixson then approached
Alston's car and immediately noticed a "box of open sandwich
baggies" and an "open beer" in the car's center console. He
also smelled the odor of marijuana emanating from the car.
Hixson asked Alston for identification, which Alston
provided. Returning to the patrol car, Hixson ran Alston's
information through "Richmond-Henrico NCIC" and learned that
Alston had an outstanding warrant on file with the City of
Richmond. Hixson arrested Alston on that warrant.
1
Hixson acknowledged at the suppression hearing that the
patrol car's emergency lights were activated during the course
of the investigation. However, he could not recall whether he
activated the emergency lights before or after he asked Alston
to return to his car. Alston testified that he did not
"remember [the] emergency lights being on."
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Incident to that arrest, Officer Durham searched Alston and
his car. As a result of the search, Durham found marijuana on
Alston's person and in his car. Additional charges were then
brought against Alston. Pierre Stanberry was also charged with
several offenses, including trespassing.
On cross-examination at the suppression hearing, Hixson
acknowledged that, as far as he knew, Alston was legally parked
and had not engaged in any criminal activity when he asked him
to get back in his car. He further acknowledged that his
investigation of Stanberry's trespassing would not have been
hindered if Alston had left because he could have gone directly
to Stanberry, who stayed in the car, and asked him questions.
When asked to describe the "reasonable and articulable
suspicion" that served as the basis for having Alston get back
in his car, Hixson explained, "It seemed suspicious to me the
way he pulled out of the complex and then just pulled over right
in front of the complex that he had just exited from, and then
he quickly got out of the vehicle and walked." Hixson further
testified: "It all seemed very suspicious to me. Mr. Stanberry
I knew was banned from the property. I knew him by name, and I
just asked Mr. Alston to have a seat back in the vehicle."
Officer DeGrauwe, who was called as a witness for Alston,
testified that, when he saw Alston get out of his car and start
to walk "across the street," he got out of the patrol car and
"got ready to run" after him, because, based on his training and
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experience, that was what normally happened under such
circumstances. When asked to explain the circumstances that
made him believe that Alston was going to try to run away,
DeGrauwe stated that Alston's "quick right turn" after signaling
to turn left, his pulling over suddenly and parking, and his
getting out of the car are occurrences that are generally
followed by "a foot pursuit." Ultimately, however, he did not
have to pursue Alston, DeGrauwe stated, because "Officer Hixson
looked at [Alston] and said get back in the car," and Alston,
who was approximately ten feet away, complied.
Alston testified at the suppression hearing. According to
his testimony, he had never been banned from the Ruffin Road
apartment complex and did not know that Stanberry, his cousin,
had been. On the day in question, he had been visiting another
cousin who lived at the apartment complex. When he was leaving
the complex, she called on his cell phone to tell him he had
left something at her place. He immediately pulled over to the
side of the road, parked, and had started to walk the short
distance back to his cousin's apartment when the police pulled
up. One of the "three or four" officers who were there "told
[him] to get back in the car." Believing, based on the
officer's tone of voice, that he was not free to leave, he got
back in the car, as ordered.
Alston admitted that he had missed an earlier court date
and that he knew he had an outstanding warrant for failure to
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appear. He admitted there was a can of beer in his car but
denied it was open. He also denied that there were "baggies" in
the car or that anyone in the car had been smoking marijuana.
In a pretrial motion, Alston moved to suppress the
marijuana as the product of an unlawful seizure. Ruling that,
under the circumstances of this case, Hixson could ask Alston to
get back in his car in order "to secure the situation just long
enough to find out what [was] going on," the trial court denied
Alston's motion to suppress.
Alston then entered a conditional plea of guilty,
preserving his right to appeal the trial court's denial of his
motion to suppress. Upon that plea, the trial court found
Alston guilty of possession of more than one-half ounce but less
than five pounds of marijuana with the intent to distribute and
sentenced him to thirty-six months of incarceration, with thirty
months suspended for a period of five years on certain
conditions. This appeal followed.
II. Analysis
"In reviewing a trial court's denial of a motion to
suppress, '[t]he burden is upon [the defendant] to show that
th[e] ruling, when the evidence is considered most favorably to
the Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (alterations in original) (quoting Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
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"'Ultimate questions of reasonable suspicion and probable cause
to make a warrantless search' involve questions of both law and
fact and are reviewed de novo on appeal." Id. (quoting Ornelas
v. United States, 517 U.S. 690, 691 (1996)). However, "we are
bound by the trial court's findings of historical fact unless
'plainly wrong' or without evidence to support them and we give
due weight to the inferences drawn from those facts by resident
judges and local law enforcement officers." Id. at 198, 487
S.E.2d at 261 (citing Ornelas, 517 U.S. at 699).
Encounters between the police and citizens "generally fall
into one of three categories." Id.
First, there are consensual encounters which
do not implicate the Fourth Amendment.
Next, there are brief investigatory stops,
commonly referred to as "Terry" stops, which
must be based upon reasonable, articulable
suspicion that criminal activity is or may
be afoot. Finally, there are "highly
intrusive, full-scale arrests" or searches
which must be based upon probable cause to
believe that a crime has been committed by
the suspect.
Id. (citations omitted) (quoting United States v. Sokolow, 490
U.S. 1, 7 (1989)).
Alston contends he was unlawfully seized under Terry v.
Ohio, 392 U.S. 1, 16 (1968), when Officer Hixson stopped him
from walking away by ordering him back to his car. At that
moment, Alston argues, Hixson did not have grounds to support a
reasonable, articulable suspicion that he was engaged in
criminal activity. The officer's observation of his
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"commonplace" driving behavior, his walking away from his
lawfully parked car, and his having someone in his car who was
suspected of trespassing, gave rise, at best, Alston maintains,
to a mere inchoate hunch that he was engaged in criminal
activity. Thus, Alston concludes, Officer Hixson violated his
Fourth Amendment rights in ordering him back to his car and the
trial court erred in refusing to suppress the subsequently
discovered marijuana, a product of the unlawful seizure.
The Commonwealth contends Alston was not seized for Fourth
Amendment purposes until he was arrested on the outstanding
warrant. Prior to that, the Commonwealth argues, the encounter
between Officer Hixson and Alston was entirely consensual.
Assuming, without deciding, that Alston was "seized" within
the meaning of the Fourth Amendment when Officer Hixson stopped
him from walking away, we agree with the trial court that, on
the facts of this case, that seizure was not in violation of
Alston's Fourth Amendment rights because Hixson was entitled to
briefly detain Alston for investigative purposes in order to
question him and maintain the status quo.
"The Fourth Amendment does not forbid all . . . seizures but
only those that are unreasonable." Cabbler v. Commonwealth, 212
Va. 520, 522, 184 S.E.2d 781, 782-83 (1971) (citing Terry, 392
U.S. at 9). Whether a seizure is unreasonable under the Fourth
Amendment depends on "the particular facts of [the] case."
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Harris v. Commonwealth, 262 Va. 407, 414, 551 S.E.2d 606, 609
(2001).
"[I]f there are articulable facts supporting a reasonable
suspicion that a person has committed a criminal offense, that
person may be stopped in order to identify him, to question him
briefly, or to detain him briefly while attempting to obtain
additional information." Hayes v. Florida, 470 U.S. 811, 816
(1985). Indeed, "[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 be most
reasonable in light of the facts known to the officer at the
time." Adams v. Williams, 407 U.S. 143, 146 (1972). Moreover,
an officer need not suspect an individual of
a particular crime in order to justify a
Terry stop. A general suspicion of some
criminal activity is enough, as long as the
officer can, based on the circumstances
before him at the time, articulate a
reasonable basis for his suspicion.
Hatcher v. Commonwealth, 14 Va. App. 487, 490, 419 S.E.2d 256,
258 (1992). Likewise, "[a]ctual proof that criminal activity is
afoot is not necessary; the record need only show that it may be
afoot." Harmon v. Commonwealth, 15 Va. App. 440, 444, 425
S.E.2d 77, 79 (1992). The investigatory stop, however, "must be
based on something more than the officer's 'inchoate and
unparticularized suspicion or "hunch."'" Ramey v. Commonwealth,
35 Va. App. 624, 629, 547 S.E.2d 519, 522 (2001) (quoting Terry,
392 U.S. at 27).
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We are further mindful in assessing an officer's
justification for a seizure that "[t]here are no bright line
rules to follow when determining whether a reasonable and
articulable suspicion exists to justify an investigatory stop."
Hoye v. Commonwealth, 18 Va. App. 132, 135, 442 S.E.2d 404, 406
(1994). As the Supreme Court stated in Illinois v. Wardlow, 528
U.S. 119, 124-25 (2000):
In reviewing the propriety of an officer's
conduct, courts do not have available
empirical studies dealing with inferences
drawn from suspicious behavior, and we
cannot reasonably demand scientific
certainty from judges or law enforcement
officers where none exists. Thus, the
determination of reasonable suspicion must
be based on commonsense judgments and
inferences about human behavior.
In deciding whether to make an investigatory stop, "an
officer is 'entitled to rely upon "the totality of the
circumstances—the whole picture."'" Peguese v. Commonwealth, 19
Va. App. 349, 351, 451 S.E.2d 412, 413 (1994) (en banc) (quoting
Lansdown v. Commonwealth, 226 Va. 204, 212, 308 S.E.2d 106, 112
(1983) (quoting United States v. Cortez, 449 U.S. 411, 417
(1981))). The police officer is also entitled "to view the
circumstances confronting him in light of his training and
experience, and he may consider any suspicious conduct of the
suspected person." James v. Commonwealth, 22 Va. App. 740, 745,
473 S.E.2d 90, 92 (1996). "[A] trained law enforcement officer
may [be able to] identify criminal behavior which would appear
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innocent to an untrained observer." Taylor v. Commonwealth, 6
Va. App. 384, 388, 369 S.E.2d 423, 425 (1988).
Applying these principles to the present case, we conclude
that, based on the totality of the circumstances confronting
him, Officer Hixson acted reasonably in stopping Alston from
walking away and asking him to return to his car.
Hixson initially observed Alston driving on property that
was posted "no trespassing." As Alston drove by the patrol car,
Hixson saw a passenger in the car who he knew had recently been
barred from the property. On the basis of that observation,
Hixson had a reasonable and articulable suspicion that the
passenger in Alston's car was trespassing. Hixson was therefore
entitled to stop Alston's vehicle in order to investigate the
suspected criminal activity. See Freeman v. Commonwealth, 20
Va. App. 658, 660-61, 460 S.E.2d 261, 262 (1995) (noting that
"[a] police officer may stop the driver or occupants of an
automobile for investigatory purposes if the officer has 'a
reasonable articulable suspicion, based on objective facts, that
the individual is involved in criminal activity'" (quoting
Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630,
631 (1991))).
Intending to conduct such an investigatory stop, Hixson
turned his patrol car around and proceeded after Alston's car.
However, before the officer could initiate the stop, Alston,
after signaling he was going to turn left upon leaving the
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property, abruptly turned right and almost immediately pulled to
the side of the road and parked. Alston then "quickly" got out
of his car and started to walk away. Hixson pulled up next to
Alston's car and, finding Alston's conduct "suspicious" asked
him to return to his car.
We conclude that Alston's behavior reasonably suggested
that criminal activity may be afoot. In light of Alston's
evasive driving maneuvers after passing Hixson's patrol car and
his quick exit and departure from his parked car, a reasonable
officer could conclude that Alston sought to avoid contact with
the police in order to elude their investigation. See Hatcher,
14 Va. App. at 490, 419 S.E.2d at 258 (finding that a passenger
of a lawfully stopped car who walked away from the car did so to
evade the police officer's investigation). Hence, Hixson's
observations of Alston's suspicious conduct provided him with a
reasonable basis independent of the passenger's suspected
trespassing to believe that Alston also might be involved in
criminal activity.
Alston argues that his behavior was consistent with innocent
conduct and showed "no indicia of criminal activity." We find,
however, that, taken together as a whole, Alston's actions after
he drove by the patrol car were sufficiently suspicious to
provide Hixson with the requisite reasonable and articulable
suspicion to stop Alston from walking away from the scene. See
Terry, 392 U.S. at 22-23 (concluding that defendant's "series of
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acts, each of them perhaps innocent in itself," in combination
warranted further investigation by the police). Hixson's brief
detention of Alston was therefore reasonable to allow the
officer to confirm or dispel his suspicion and to maintain the
status quo during the course of the lawful roadside
investigatory stop. See Hatcher, 14 Va. App. at 491-92, 419
S.E.2d at 259 (holding that a police officer's brief detention
of a passenger who walked away from a lawfully stopped vehicle
is warranted to promote the officer's "significant interest in
gaining control of and monitoring a potentially hazardous
roadside stop in order to conduct his lawful investigation,"
particularly when "events subsequent to the lawful traffic stop
focus suspicion on [the] passenger"); see also United States v.
Mancillas, 183 F.3d 682, 698 (7th Cir. 1999) (finding that a
police officer had reasonable suspicion to stop and briefly
detain the defendant based, in part, on the defendant's
"quickly" exiting and walking away from his vehicle in a parking
lot when the officer, responding to a radio dispatch, arrived at
the parking lot and illuminated the defendant's vehicle with a
spotlight).
Alston further contends that, even if Hixson had grounds to
support a reasonable and articulable suspicion that he was
engaged in criminal activity, the officer could only detain him
briefly "at the point where he stood, after he immediately
stopped when hailed by the police." By ordering him back into
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the confines of the car, Alston argues, Hixson transformed any
possible investigatory detention into a custodial seizure
requiring probable cause, which, at that point, did not exist.
We disagree with Alston that, by asking him to get back
into his car rather than questioning him outside the car "where
he stood," Hixson changed the nature of the detention from an
investigatory stop into a full-fledged arrest. "The perception
. . . that one is [in custody] is insufficient to convert a Terry
stop into an arrest. A brief but complete restriction of liberty
is valid under Terry." United States v. Moore, 817 F.2d 1105,
1108 (4th Cir. 1987). For example, an investigatory stop does
not necessarily become a custodial arrest when circumstances
cause a police officer to draw his gun upon a suspect. See
Harris v. Commonwealth, 27 Va. App. 554, 562, 500 S.E.2d 257,
261 (1998).
Moreover, "[c]ourts have routinely allowed officers to
insist on reasonable changes of location when carrying out Terry
stops." United State v. White, 648 F.2d 29, 37 (D.C. Cir. 1981).
Indeed, it is well established that police officers who are
conducting a lawful investigatory stop are "authorized to take
such steps as [are] reasonably necessary to protect their
personal safety and to maintain the status quo during the course
of the stop." United States v. Hensley, 469 U.S. 221, 235
(1985). The personal safety of the driver and other occupants
of a lawfully stopped vehicle is also a legitimate concern for
the police. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977).
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Thus, "[f]ollowing a lawful traffic stop, the Fourth
Amendment permits the police to order the passengers to get out
of the car pending the completion of the stop." Harris, 27
Va. App. at 562, 500 S.E.2d at 261 (citing Maryland v. Wilson,
519 U.S. 408, 414 (1997)). Likewise, we have "previously held
that police officers may . . . detain passengers beside an
automobile until completion of a lawful traffic stop." Id.
(citing Hatcher, 14 Va. App. at 491-92, 419 S.E.2d at 259). The
police may also order the driver to exit the car, see Mimms, 434
U.S. at 111 n.6, and it follows that "a police officer has the
power to reasonably control the situation by requiring [an
occupant of the vehicle] to remain in [the] vehicle during a
traffic stop." Rogala v. District of Columbia, 161 F.3d 44, 53
(D.C. Cir. 1998). These additional intrusions upon the personal
liberties of the occupants of the vehicle, who "'are already
stopped by virtue of the [lawful] stop of the vehicle,'" are "de
minimis" and are reasonable under the Fourth Amendment because
of the "'weighty [public] interest in officer safety'" and the
need to "maintain the status quo during the course of the
investigatory traffic stop." Harris, 27 Va. App. at 562, 500
S.E.2d at 261 (quoting Wilson, 519 U.S. at 414).
Applying these principles to the circumstances of the
present case, we conclude that Officer Hixson did not violate
Alston's Fourth Amendment rights by having him get back in his
car before questioning him. In doing so, Hixson took steps that
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were reasonably necessary not only to protect Alston, himself,
and his fellow officers from the dangers inherently associated
with a roadside stop but also to maintain the status quo during
the stop. Even though this case did not involve a situation
that was overtly dangerous, such as "a dark and deserted spot or
one lone officer facing a carful of suspects, our reluctance to
second-guess the judgment of experienced officers is not limited
to such extreme situations." White, 649 F.2d at 36 (footnote
deleted). Moreover, the additional intrusion upon Alston's
personal liberty was minimal. We conclude, therefore, that
Hixson acted reasonably in asking Alston to get back in his car
in order to control and monitor the situation during the course
of the investigatory stop. See Hatcher, 14 Va. App. at 491-92,
419 S.E.2d at 259.
Thereafter, Officer Hixson, in approaching Alston's car to
investigate the suspected trespassing and Alston's possible
criminal involvement, saw a "box of open sandwich baggies" and
an open container of beer in plain view in the center console of
the car and detected an odor of marijuana emanating from the
car. Based on those observations, Hixson had a reasonable and
articulable suspicion that justified further investigation of
Alston's suspected criminal activity. Hixson's subsequent
discovery that there was an outstanding warrant for Alston then
provided the officer with the probable cause necessary to arrest
Alston. Incident to that arrest, the police conducted a search
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that led to the discovery of the marijuana on Alston's person
and in his car.
We hold, therefore, based upon our de novo review, that,
under the facts and circumstances of this case, the trial court
did not err in denying Alston's motion to suppress.
Accordingly, we affirm Alston's conviction.
Affirmed.
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