COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
TIMOTHY M. JONES
OPINION BY
v. Record No. 0606-96-1 JUDGE JERE M. H. WILLIS, JR.
APRIL 15, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
Damian T. Horne (Horne, West & McMurtrie,
P.C., on brief), for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Timothy M. Jones was convicted of possession of cocaine. On
appeal, he contends that the trial court erred in denying his
motion to suppress the evidence. Specifically, he argues that
the police officers lacked reasonable suspicion that criminal
activity was afoot when they stopped his car.
On the afternoon of July 14, 1995, Gloucester County Deputy
Sheriff Hicks and Investigator Jones were on patrol in a white,
unmarked Ford Bronco. A compact car driven by Jones approached
them from behind at a high speed. As Jones' car came alongside
the Bronco, the passenger in the front seat of the car motioned
to two others in the rear. They all looked at the two officers
and one man gestured as though he were shooting a gun. Jones'
car then took position immediately behind and to the right of the
officers' Bronco, and remained there. Although the officers
accelerated to seventy miles per hour and slowed to fifty miles
per hour, Jones maintained a constant position, refusing to pass
and staying behind and to the right of the Bronco. At a
stoplight, Jones maintained this position rather than stopping
alongside the Bronco. The vehicles proceeded in this fashion for
twenty-five minutes. Hicks concluded that Jones sought to ensure
that his car "was always at an advantage to [Hicks'] vehicle."
Three weeks earlier, a confidential informant had told the
Gloucester County Sheriff's Department of a "contract" to murder
Hicks and Jones in retaliation for a prior arrest. Hicks stated
that several informants had confirmed the existence of the
contract and had reported that money had been paid for this
purpose. Hicks also testified that Jones "looked very familiar
to one of the ones that [they] arrested [in the incident that
gave rise to the contract on him and Jones.]"
Hicks and Jones decided to "follow-up" on the reported
contract and to identify the persons in the vehicle. Upon
entering York County, they obtained assistance from York County
officers, who stopped Jones' vehicle. Investigator Donnelly
obtained consent to search Jones for drugs and weapons and
discovered a pipe containing crack cocaine. Jones was then
arrested for possession of cocaine.
Jones has the burden of demonstrating that the trial court's
ruling on the motion to suppress constituted reversible error.
Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731
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(1980). Generally on appeal, determinations of reasonable
suspicion and probable cause are examined de novo. However, we
review the trial court's findings of historical fact only for
clear error, and grant due weight to inferences derived from
those facts by the trial judge and police officers. James v.
Commonwealth, 22 Va. App. 740, 743, 473 S.E.2d 90, 91 (1996)
(citing Ornelas v. United States, 116 S. Ct. 1657 (1996)).
Jones contends that the police officers lacked a reasonable
suspicion, supported by objective facts, warranting the
investigatory stop of his vehicle. He cites Bethea v.
Commonwealth, 245 Va. 416, 429 S.E.2d 211 (1993), for the
proposition that gestures and erratic driving patterns are not,
by themselves, sufficient to provide a reasonable suspicion of
criminal activity. His reliance on Bethea is misplaced.
In Bethea, police officers in an unmarked police vehicle
observed Bethea, a passenger in a passing car, making faces at
them, which "startled" and "scared" one officer. Id. at 417, 429
S.E.2d at 212. The officers then stopped the vehicle for a
traffic infraction. They ordered Bethea out of the vehicle and
frisked him. Id. at 417-18, 429 S.E.2d at 212. The question
before the Supreme Court concerned the constitutional validity of
the police officer's demand that a passenger (Bethea) step out of
the vehicle. Based partly upon Bethea's actions prior to the
stop, the Supreme Court found that the totality of the
circumstances, including the safety of the officer, supported the
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requirement that Bethea exit the vehicle. Id. at 420, 429 S.E.2d
at 213. See Bethea v. Commonwealth, 14 Va. App. 474, 478, 419
S.E.2d 249, 251-52 (1992), aff'd, 245 Va. 416, 429 S.E.2d 211
(1993) (discussing state's "legitimate and weighty" interest in
the protection of police officers). Because the officers had
stopped the vehicle lawfully due to a traffic infraction, the
Supreme Court did not consider whether Bethea's actions alone
would have provided a reasonable and articulable suspicion
supporting the stop of the vehicle.
"A police officer may stop the driver or occupants of an
automobile for investigatory purposes if the officer has 'a
reasonable articulable suspicion, based upon objective facts,
that the individual is involved in criminal activity.'" Freeman
v. Commonwealth, 20 Va. App. 658, 660-61, 460 S.E.2d 261, 262
(1995) (quoting Jacques v. Commonwealth, 12 Va. App. 591, 593,
405 S.E.2d 630, 631 (1991)). See Mejia v. Commonwealth, 17 Va.
App. 749, 753, 441 S.E.2d 41, 43 (1994). "To determine whether
an officer has articulated a reasonable basis to suspect criminal
activity, a court must consider the totality of the
circumstances, including the officer's knowledge, training, and
experience." Freeman, 20 Va. App. at 661, 460 S.E.2d at 262
(citing Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d
125, 128 (1989)). See also Jackson v. Commonwealth, 22 Va. App.
347, 353-54, 470 S.E.2d 138, 141 (1996); Logan v. Commonwealth,
19 Va. App. 437, 441, 452 S.E.2d 364, 367 (1994).
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Viewing the totality of the circumstances in this case, we
conclude that the officers had a reasonable and articulable
suspicion that criminal activity was afoot. The unprovoked
harassment and intimidation directed by Jones and his passengers
at the police officers created a traffic hazard and a potentially
dangerous situation. Jones' erratic driving, coupled with the
gestures of the passengers and the threats reported to the
officers, gave rise to a particularized and reasonable suspicion
of criminal conduct and authorized an investigatory stop to
identify Jones and his passengers and to question them regarding
their conduct. See Quigley v. Commonwealth, 14 Va. App. 28, 33,
414 S.E.2d 851, 854 (1992); Peguese v. Commonwealth, 17 Va. App.
368, 370, 437 S.E.2d 574, 576 (1993). Accordingly, the trial
court correctly refused to suppress the evidence obtained during
the investigatory stop.
The judgment of the trial court is affirmed.
Affirmed.
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