COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1899-02-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 10, 2003
TERRENCE LINWOOD LOCKETT
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge Designate
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellant.
Carolyn V. Grady (Epperly, Follis & Schork,
PC, on brief), for appellee.
The grand jury for the City of Richmond indicted Terrence
Linwood Lockett (defendant) for possession of heroin in violation
of Code § 18.2-250, possession of cocaine with intent to
distribute in violation of Code § 18.2-248, and possession of
cocaine with intent to distribute within 1000 feet of a school in
violation of Code § 18.2-255.2. Defendant filed a motion to
suppress evidence seized from him on the ground that the police
lacked a reasonable articulable suspicion to detain him. The
trial court granted the suppression motion, and the Commonwealth
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
appeals. For the following reasons, we reverse the trial court's
suppression ruling.
I.
On the evening of October 21, 2001, Officers Chuck Howell
(Howell) and Robert Sprinkle (Sprinkle) of the Richmond City
Police Department were on routine patrol as members of the drugs
and weapons unit. The officers arrived at the Creighton Court
apartment complex at approximately 8:30 p.m. as part of an
effort to surprise "anyone who was dealing drugs" in the
neighborhood, which was "known for its numerous drug
activities." They parked at the southern end of the complex and
were walking north when they noticed a group of individuals in a
"cut" between two apartment buildings. The property was marked
by "No Trespassing" signs on each building. Although the
officers were familiar with the residents of the area, they did
not recognize anyone in the group. Based upon his training and
experience, Howell suspected that a drug transaction "was going
to occur or had occurred." However, neither officer saw any
drug activities or exchanges.
Howell and Sprinkle continued walking toward the group. At
that point, defendant "looked in [the officers'] direction" and
immediately "took off running" in the opposite direction. As he
chased defendant, Howell saw him drop something. Howell
retrieved the discarded item, which he later discovered was a
digital scale.
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Howell yelled at defendant to stop, and he "got on the
ground." Sprinkle handcuffed defendant and did a "pat down"
search for weapons. No weapons or drugs were found at that
time. Howell did not tell defendant that he was under arrest,
and Sprinkle told defendant "you're not under arrest, [you're]
under investigative detention until we can figure out . . .
what's going on."
Sprinkle took defendant to the officers' car and questioned
him. Defendant said he did not live at Creighton Court and
could not give a reason for being there that evening. Sprinkle
arrested him for trespassing and in a search incident to the
arrest found drugs and a cellular telephone.
The trial court ruled,
I understand why the officers did what they
did. But . . . [u]nder the evidence that
has been presented to this Court, I do not
find the facts to rise to a reasonable
articulable suspicion that a crime has
occurred or even that a crime is about to
occur, and I grant the motion to suppress.
The Commonwealth appeals this ruling.
II.
When reviewing the ruling on a suppression motion, we
consider the evidence most favorably to the prevailing party
below, according deference to the decision of the trial court,
with the burden to show reversible error resting upon the
appellant, the Commonwealth in this instance. See Wallace v.
Commonwealth, 32 Va. App. 497, 501, 528 S.E.2d 739, 740 (2000);
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Miller v. Commonwealth, 16 Va. App. 977, 979, 434 S.E.2d 897,
899 (1993). "While we are bound to review de novo the ultimate
questions of reasonable suspicion and probable cause, we 'review
findings of historical fact only for clear error and give due
weight to inferences drawn from those facts by resident judges
and local law enforcement officers." Davis v. Commonwealth, 35
Va. App. 533, 538, 546 S.E.2d 252, 255 (2001) (citing Ornelas v.
United States, 517 U.S. 690, 699 (1996)).
A police officer may constitutionally conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity may be afoot. See
Terry v. Ohio, 392 U.S. 1, 30 (1968). "A reasonable suspicion
is more than an unparticularized suspicion or hunch. Reasonable
suspicion, while requiring less of a showing than probable
cause, requires at least a minimal level of objective
justification for making the stop." Bass v. Commonwealth, 259
Va. 470, 475, 525 S.E.2d 921, 923 (2000) (citing United States
v. Sokolow, 490 U.S. 1 (1989)). "The court must consider the
totality of the circumstances in determining whether a police
officer had a particularized and objective basis for suspecting
that a person stopped may be involved in criminal activity."
Bass, 259 Va. at 475, 525 S.E.2d at 924 (citing United States v.
Cortez, 449 U.S. 411, 417-18 (1981)).
This case is controlled by Illinois v. Wardlow, 528 U.S.
119 (2000). We note that at the suppression hearing in the
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trial court, neither party referenced this decision. In
Wardlow, the Supreme Court said,
An individual's presence in an area of
expected criminal activity, standing alone,
is not enough to support a reasonable,
particularized suspicion that the person is
committing a crime. But officers are not
required to ignore the relevant
characteristics of a location in determining
whether the circumstances are sufficiently
suspicious to warrant further investigation.
Wardlow, 528 U.S. at 124 (citing Brown v. Texas, 443 U.S. 47
(1979)). Furthermore, unprovoked flight can provide a basis for
suspicion. "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. . . .
Flight, by its very nature is not 'going about one's business';
in fact, it is just the opposite." Id. at 124-25 (quoting
Florida v. Royer, 460 U.S. 491, 498 (1983)).
In the instant case, defendant was standing with a group of
individuals who were not apartment residents in an area marked
with no trespassing signs. At trial, defendant conceded that
the neighborhood was a known drug area. Although the officers
did not specifically see drugs or money change hands, their
training and experience led them to believe that a drug
transaction "was going to occur or had occurred." These
circumstances and defendant's unexplained and unprovoked flight
mirror the facts in Wardlow. "A determination that reasonable
suspicion exists . . . need not rule out the possibility of
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innocent conduct." United States v. Arvizu, 534 U.S. 266, 277
(2002). To the contrary, police officers are permitted to
detain individuals "to resolve the ambiguity." Wardlow, 528
U.S. at 125. Accordingly, the trial court's ruling is reversed,
and the case is remanded to the trial court for trial.
Reversed and remanded.
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Benton, J., dissenting.
The trial judge found that "the facts [failed] to rise to a
reasonable articulable suspicion that a crime has occurred or
even that a crime is about to occur," and he suppressed the
evidence. Viewed in the light most favorable to Terrence
Linwood Lockett, who prevailed at the suppression hearing,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991), a significant aspect of the circumstances on
which the police officer based his conclusion of criminal
activity was proved not to be true.
The police officers seized Lockett, told Lockett he was
being detained for trespassing, and initially arrested Lockett
for trespassing. The police officer testified, however, that
when he saw the men he suspected the men had engaged in a
narcotics transaction or were about to engage in a narcotics
transaction. The officer's testimony included the following:
Q: Was there anything else besides the fact
that they were standing there that supported
your suspicion?
A: Based on the demeanor -- Scratch that.
Based on the way that they were standing--
and I have actually surveyed a lot of drug
transactions--and like I have testified
before, either a drug transaction had
already occurred or was about to occur.
* * * * * * *
Q: They were standing in an open area.
Correct?
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A: Yes.
Q: They weren't huddled over each over.
Right?
A: Were they what now?
Q: They weren't huddled over each other.
Right? They weren't in a little circle.
Right?
A: I don't remember how they were standing.
Q: You have no idea how they were standing,
do you?
A: No.
Q: And it's a hunch that you thought, based
on your training and experience, that there
was something about to occur because of
things that occurred there in past.
Correct?
A: Correct.
If we assume, as we must, that the trial judge resolved
these facts against the Commonwealth, see McGee v. Commonwealth,
25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc)
(holding that "we are bound by the trial [judge's] findings of
historical fact unless 'plainly wrong' or without evidence to
support them"), then the evidence proved that the officer indeed
acted upon a "hunch" when he determined that criminal activity
had occurred or was about to occur. Moreover, the trial judge
was not required to believe, neither are we, that flight alone
is a sufficient basis to make a Terry detention. The Supreme
Court has specifically noted that flight "is not necessarily
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indicative of wrongdoing," even if "it is certainly suggestive
of such." Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
Whether the object the officer seized during the chase was
discarded by Lockett or inadvertently dropped is also part of
the totality of the circumstances. Again, we must view this
evidence in the light most favorable to Lockett. The only
evidence on this issue is the officer's testimony that Lockett
"dropped" a "darkened colored object" during the chase. He did
not testify that Lockett threw it or made a motion to discard
it. The officer recovered the object, which he did not
recognize, and did not examine it until after he seized Lockett.
Because the trial judge did not rule that Lockett discarded the
object and he ruled in Lockett's favor, we must view the
evidence as establishing that the object merely dropped while
Lockett ran. In addition, that object, which the officer did
not even examine until Lockett "was in handcuffs," was not
articulated to be part of the basis for the detention.
The evidence also proved that after the officers seized
Lockett they put handcuffs on him for their safety. The officer
told Lockett that he was being seized for an "investigative
detention for trespassing." After the officers questioned
Lockett, they "arrested [him] for trespassing." Only then,
during a search incident to that arrest, did the officer find
cocaine and arrest Lockett for possession of the cocaine the
officer found during the search.
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When we strip from the totality of the circumstances any
reliance upon the officer's testimony that the assembly of men
was indicative of a past or future drug transaction and view the
facts as the trial judge did, i.e., that the officer's testimony
proved no more than men "gather[ed] . . . to talk," the evidence
proved the officers acted on a "hunch." Moreover, the evidence
proved that the officers told Lockett, when they detained him,
that he was being investigated for trespassing. They said
nothing to him about narcotics before they searched him. The
totality of these circumstances supports the trial judge's
ruling. As the Supreme Court has held, "[w]hen . . . a stop is
not based on objective criteria, the risk of arbitrary and
abusive police practices exceeds tolerable limits." Brown v.
Texas, 443 U.S. 47, 52 (1979).
For these reasons, I would hold that the evidence failed to
prove a reasonable articulable suspicion of criminal activity
and, therefore, I would affirm the suppression order.
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