Outten v. Commonwealth Of Va.

Decision Date28 September 2010
Docket NumberRecord No. 1916-09-1
PartiesJOSEPH RODGERS OUTTEN v. COMMONWEALTH OF VIRGINIA
CourtCourt of Appeals of Virginia

JOSEPH RODGERS OUTTEN
v.
COMMONWEALTH OF VIRGINIA

Record No. 1916-09-1

Court Of Appeals Of Virginia

Date: SEPTEMBER 28, 2010


Gregory K. Matthews (Joseph A. Sadighian; Office of the Public Defender, on briefs), for appellant.

Rosemary V. Bourne, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Judges Elder, Humphreys and Senior Judge Coleman

MEMORANDUM OPINION* BY JUDGE ROBERT J. HUMPHREYS

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH

James C. Hawks, J.

Joseph Rodgers Outten ("Outten") appeals his conviction in the Portsmouth Circuit Court ("circuit court") on one count of possession of a firearm after having been convicted of a violent felony, in violation of Code § 18.2-308.2(A).1 Outten alleges the trial court erred in refusing to suppress the evidence against him, arguing it was obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. For the reasons that follow, we disagree with Outten and affirm.

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Outten contends the trial court erred in denying his motion to suppress. He argues on appeal, as he did in the court below, that Officer Henderson lacked the requisite reasonable suspicion for the seizure of Outten's person. He further reasons that, even if Henderson did have reasonable suspicion to support the initial stop, the scope and manner of the detention was so excessive as to require evidence supporting the more rigid standard of probable cause. We disagree.

When reviewing a trial court's denial of a motion to suppress, we view the evidence "in the light most favorable to the Commonwealth, granting to the Commonwealth all reasonable inferences fairly deducible" therefrom. Sabo v. Commonwealth, 38 Va. App. 63, 69, 561 S.E.2d 761, 764 (2002) (citing Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)). "[W]e 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 v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). Nevertheless, "'[u]ltimate questions of reasonable suspicion and probable cause... involve questions of both law and fact and are reviewed de novo on appeal.'" Ramey v. Commonwealth, 35 Va. App. 624, 628, 547 S.E.2d 519, 521 (2001) (quoting Neal v. Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d 422, 424 (1998)). Ultimately, the burden rests upon the defendant to show that the denial of his suppression motion constituted reversible error. McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001) (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).

It is well settled that "[a] police officer may conduct a brief investigatory stop when the officer, in light of his training and experience, has reasonable, articulable suspicion that criminal activity is afoot." Jones v. Commonwealth, 279 Va. 665, 673, 691 S.E.2d 801, 805 (2010)

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(citing Terry v. Ohio, 392 U.S. 1, 21, 27, 30 (1968)). Protections afforded by the Fourth Amendment require, at a minimum, that any detention of an individual no matter how brief "be justified by an objective manifestation that the person stopped is engaged, or is about to be engaged, in criminal activity." Id (citing United States v. Cortez, 449 U.S. 411, 417 (1981)). To that end, "an officer's subjective characterization of observed conduct is not relevant to a court's analysis concerning whether there is a reasonable suspicion because the Court's review of whether there was reasonable suspicion involves application of an objective rather than a subjective standard." Harris v. Commonwealth, 276 Va. 689, 697, 668 S.E.2d 141, 146 (2008).

In deciding "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 [not only] the totality of the circumstances," Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722 (1997), but also the fact that "trained law enforcement officers may be 'able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer, '" Castaneda v. Commonwealth, 7 Va. App. 574, 580, 376 S.E.2d 82, 85 (1989) (quoting United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982)).

"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to
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