Whitaker v. Com., Record No. 090175.

• Citation: 279 Va. 268,687 S.E.2d 733
• Decision Date: 15 January 2010
• Docket Number: Record No. 090175.
• Parties: Leonard Terrell WHITAKER v. COMMONWEALTH of Virginia.
• Court: Supreme Court of Virginia

687 S.E.2d 733

279 Va. 268

Leonard Terrell WHITAKER v. COMMONWEALTH of Virginia.

Record No. 090175.

Supreme Court of Virginia.

January 15, 2010.

Jessica M. Bulos, Assistant Appellate Defender, for appellant.

Leah A. Darron, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and CARRICO, S.J.

OPINION BY Senior Justice HARRY L. CARRICO.

The primary issue in this appeal is whether the circuit court erred in denying a defense motion to suppress the evidence on charges brought against the defendant, Leonard Terrell Whitaker, in the Circuit Court of the City of Richmond. The charges consisted of possession of a firearm while in possession of a controlled substance (Code § 18.2-308.4(B)), possession with intent to distribute marijuana (Code § 18.2-248.1), possession of a firearm after having been convicted of a felony (Code § 18.2-308.2(A)), and carrying a concealed weapon (Code § 18.2-308(A)).

Following its denial of Whitaker's motion to suppress, the circuit court in a bench trial convicted him of all the charges and sentenced him to serve a total term of seven years active incarceration in the Department of Corrections plus additional suspended time. Then, based upon these convictions, the circuit court held that Whitaker had violated the terms of probation he had been under for convictions entered against him in 2005. The court revoked all of Whitaker's suspended sentences and ordered that they "run concurrent with each other and with [his] new time."

The Court of Appeals of Virginia awarded Whitaker an appeal. In an unpublished opinion, the court affirmed Whitaker's convictions and, accordingly, held that it "need not further examine whether the trial court erred in revoking [his] suspended sentences." Whitaker v. Commonwealth, Record No. 1859-07-2, 2008 WL 5330499 (Dec. 23, 2008). We awarded Whitaker this appeal.

BACKGROUND

The evidence presented at the hearing on the motion to suppress shows that on November 17, 2006, City of Richmond Police Officer Clyde Lindsey and two of his partners, Officers Marshall Young and Thomas Gilbert, along with another officer, were patrolling in an unmarked police car in a "very high crime area, very high drug area" of the city. Numerous shootings had occurred in the area. Also, "[a] lot of drug activity goes on there"; it was an "open-air drug market"; the officers had made numerous drug arrests "right there in that particular block."

The officers were clad in street clothes and were wearing placards^* with "Richmond Police" and a badge "about a foot tall" imprinted on the front and back. As the officers approached the intersection of 27th and P Streets, they observed a group of men, four in number, some sitting and some standing, on a sidewalk bordered by a chain link fence with a house "right behind it." Whitaker was one of the group.

The officers exited their vehicle and went up to the men to "investigate trespassing and also to speak to them about ... blocking the sidewalk." Officer Lindsey then went to the front door of the house to ascertain from the occupant whether the four men were trespassing. He had responded previously to the occupant's complaints about people trespassing on her property. Officer Lindsey knocked twice, but received no response.

After a period of about ninety seconds, Officer Lindsey returned to the sidewalk and Officer Gilbert asked him "where is [Whitaker] going." Officer Lindsey turned and saw that Whitaker "was on his bicycle" going away from the officers and around the corner of 27th and P Streets. Officer Lindsey followed on foot and when he got around the corner he saw that Whitaker had abandoned his bicycle and was running down an alley. Officer Lindsey began running after Whitaker.

Officers Gilbert and Young tried to follow in their police car, which they found difficult, so they exited the car and joined Officer Lindsey in running after Whitaker. The officers were behind Whitaker as he ran across a field, "looped" around several houses and a church, and jumped over two fences.

Officer Lindsey observed nothing unusual about the way Whitaker ran, but Officers Gilbert and Young both noticed that Whitaker was holding the right hand pocket of his jacket as he ran, leading Officer Gilbert to think "it was a firearm."

After Whitaker had run about two blocks, he slipped on some loose gravel in a parking lot and fell to the ground. Officer Lindsey "proceeded to kneel down on top of Mr. Whitaker." Officer Gilbert arrived on the scene at the same time as Officer Lindsey, and in a "few seconds" Officer Young "caught up."

Officer Gilbert assisted Officer Lindsey in trying to place handcuffs on Whitaker. While the handcuffing effort was in progress, Whitaker tried to reach around to his right jacket pocket and Officer Lindsey told Officer Gilbert to "watch his right hand[; h]e's trying to get something out of his pockets." Whitaker then said: "Sir, I've got a firearm in my pocket."

The firearm was retrieved from Whitaker's pocket, and he was placed under arrest for carrying a concealed weapon. Officer Young then conducted a search of Whitaker's person. The search disclosed quantities of what later was determined to be marijuana and cocaine in Whitaker's right front pants pocket. Cash in the total amount of $713.00 was found in his left rear pants pocket.

DISCUSSION

The Fourth Amendment to the Constitution of the United States provides in pertinent part that "[t]he right of the people to be secure in their persons ... and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. The following appellate standard of review is applicable in deciding a claim that evidence was seized in violation of the Fourth Amendment:

In reviewing the denial of a motion to suppress evidence claiming a violation of a person's Fourth Amendment rights, we consider the facts in the light most favorable to the Commonwealth, the prevailing party at trial. The burden is on the defendant to show that the trial court committed reversible error. We are bound by the trial court's factual findings unless those findings are plainly wrong or unsupported by the evidence. We will review the trial court's application of the law de novo.

Whitehead v. Commonwealth, 278 Va. 300, 306-07, 683 S.E.2d 299, 301 (2009) (quoting Malbrough v. Commonwealth, 275 Va. 163, 168-69, 655 S.E.2d 1, 3 (2008)).

Two types of seizures of the person are protected by the Fourth Amendment—an arrest and an investigatory stop. A police officer may seize a person by arrest only when the officer has probable cause to believe that the person seized has committed or is committing a crime. In order to justify the brief seizure of a person by an investigatory stop, a police officer need not have probable cause; however, he must have "a reasonable suspicion, based on objective facts, that the [person] is involved in criminal activity." In determining whether a police officer had a particularized and objective basis for suspecting that the person stopped may be involved in criminal activity, a court must consider the totality of the circumstances.

Ewell v. Commonwealth, 254 Va. 214, 216-17, 491 S.E.2d 721, 722-23 (1997) (citations and internal quotation marks omitted).

[The] evaluation of the proper balance that has to be struck in this type of case [is] that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (citations omitted).

Whitaker advances three arguments, as follows:

I. The police did not have reasonable articulable suspicion to seize Whitaker.

II. The seizure of the drugs was not justified as a search incident to a lawful arrest.

III. The revocation order should be reversed because the new convictions at issue in this appeal were the sole basis for the revocation and those convictions should be reversed.

We disagree with Whitaker on all scores.

I. ARTICULABLE SUSPICION

In Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the Supreme Court in a very similar case outlined what is appropriate in determining whether an officer had a particularized and objective basis for suspecting that the person stopped may be involved in criminal activity. The court stated as follows:

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...