COURT OF APPEALS OF VIRGINIA
Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia
JAMES KEVIN BARRETT, SR.
MEMORANDUM OPINION * BY
v. Record No. 0977-02-2 JUDGE JERE M. H. WILLIS, JR.
JUNE 3, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Catherine C. Hammond, Judge
(Dannie R. Sutton, Jr.; Goodwin, Sutton &
DuVal, P.L.C., on brief), for appellant.
Appellant submitting on brief.
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
On appeal from his bench trial conviction of driving after
having been declared an habitual offender, second offense, James
Kevin Barrett contends the trial court erred by denying his
motion to suppress. He argues that the police officer lacked a
reasonable, articulable suspicion of criminal activity that
justified stopping him. We affirm the judgment of the trial
court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
Between 8:00 a.m. and 9:00 a.m. on August 14, 2001, Officer
Edward John Kubicki observed a car parked on the side of the
road. Approaching the vehicle, he saw Barrett, the driver, and
the female passenger make a hand-to-hand exchange. The woman
spotted the police vehicle and quickly hid from view. Barrett
then drove the car behind a townhouse complex, an area known for
drug trafficking. Barrett and the woman exited the car, and
Kubicki asked to speak with them. Turning to face the officer,
Barrett and the woman admitted they did not live at the
townhouse complex and stated they had not seen the "No
Trespassing" sign posted at the entrance. They said they were
visiting a friend, but could not state the friend's name.
Barrett left the scene as Kubicki searched the woman and then
allowed her to leave. Kubicki left the area but remained where
he could observe the parking lot. Several minutes later,
Barrett emerged from a wooded area behind the buildings. Seeing
the officer, he began to run. Calling for him to stop, Kubicki
chased him on foot and caught him. Kubicki then learned of
Barrett's habitual offender status.
Analysis
"In reviewing a trial court's denial of a motion to
suppress, 'the burden is upon the defendant to show that the
ruling, when the evidence is considered most favorably to the
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Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). "[W]e review de novo the trial
court's application of defined legal standards such as probable
cause and reasonable suspicion to the particular facts of the
case." Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d
357, 359 (1999) (citation omitted). "In performing such
analysis, 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." McGee, 25 Va. App. at 198, 487 S.E.2d at 261
(quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).
In appropriate circumstances, an
officer, lacking probable cause to arrest,
may nevertheless approach a person he or she
suspects of being engaged in criminal
activity to investigate such activity. An
officer may detain a person in a "Terry 1
stop" if the officer possesses articulable
facts supporting a reasonable suspicion that
a person has committed a criminal offense,
is engaging in one, or is about to engage in
one. In determining whether an officer had
a particularized and objective basis for
suspecting a person of criminal activity, a
court must consider the totality of the
circumstances. The test for reasonable
suspicion under Terry is less stringent than
the test for probable cause. Reasonable
suspicion can be established with
information different in quantity or content
1
Terry v. Ohio, 392 U.S. 1 (1968).
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than that required to establish probable
cause. Reasonable suspicion differs from
probable cause "also in the sense that
reasonable suspicion can arise from
information that is less reliable than that
required to show probable cause."
Clarke v. Commonwealth, 32 Va. App. 286, 294-95, 527 S.E.2d 484,
488-89 (2000) (citations omitted) (footnote added). In Illinois
v. Wardlow, 528 U.S. 119 (2000), the Supreme Court reaffirmed
the basic principles embodied in Terry and held that "[h]eadlong
flight" in an area known for criminal activity gave the police
reasonable suspicion to detain a suspect. Id. Cf. Welch v.
Commonwealth, 15 Va. App. 518, 425 S.E.2d 101 (1992) (flight as
evidence of consciousness of guilt).
Barrett engaged in a series of suspicious activities before
Kubicki detained him. He performed what appeared to be a
hand-to-hand transaction with a woman who quickly ducked out of
view when she saw the police vehicle. He then drove to an area
with a high incidence of illegal drug activity and marked with a
"No Trespassing" sign. He admitted he did not live in the
complex and was unable to name the person he claimed to be
visiting. He left and concealed himself. After Kubicki left
the parking lot, Barrett reappeared, but as soon as he saw the
officer's vehicle, he fled. This suspicious behavior and
presence in a high drug area, combined with Barrett's headlong
flight, provided Kubicki a reasonable suspicion of criminal
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activity, justifying his stopping Barrett for inquiry. The
trial court did not err in denying the motion to suppress.
We affirm the judgment of the trial court.
Affirmed.
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James Kevin Barrett, Sr v. Commonwealth
Combined Opinion