Rudolph v. Commonwealth

• Decision Date: 27 February 2009
• Docket Number: Record No. 080794.
• Citation: 277 Va. 209,722 S.E.2d 527
• Parties: Demetres Jerrod RUDOLPH, Appellant, v. COMMONWEALTH of Virginia, Appellee.
• Court: Virginia Supreme Court

277 Va. 209

722 S.E.2d 527

Demetres Jerrod RUDOLPH, Appellant,

v.COMMONWEALTH of Virginia, Appellee.

Record No. 080794.

Supreme Court of Virginia.

Feb. 27, 2009.

Upon consideration of the record, briefs, and argument of counsel, the Court is of opinion that there is reversible error in the judgment of the Court of Appeals.

Demetres J. Rudolph was charged with and found guilty of possession of marijuana with the intent to distribute in the Circuit Court of the City of Virginia Beach. By an unpublished memorandum opinion, the Court of Appeals affirmed Rudolph's conviction. Rudolph claims that he was stopped in violation of his rights under the Fourth Amendment of the United States Constitution and that all evidence obtained as a result of that stop should have been suppressed. The Commonwealth contends that, under the circumstances, the police officer's investigatory stop was constitutionally permissible.

On January 23, 2006, at approximately 8 p.m., Officer Jeremy P. Latchman was patrolling the Cypress Point Plaza Shopping Center area. Multiple burglaries of closed businesses and robberies of individuals had occurred in that area. Latchman saw a “vehicle with no lights on parked parallel in the rear of [a] Citgo Gas Station,” located on an outparcel of the shopping center. The gas station was open for business, and there was an entry door for customers in the “rear,” which is the side of the building that is opposite the side of the building where the gas pumps are located. Latchman thought the circumstance of the vehicle being parked in that location was unusual because he did not believe that customers used the station's rear entry in the nighttime. In addition, while there are parking spaces on that side of the building, the vehicle was not parked in a marked parking space.

There were two people in the parked vehicle. Rudolph was in the driver's seat. In the few seconds he observed the parked vehicle from about a car length and a half away from Rudolph's vehicle, Latchman saw Rudolph moving around in the vehicle and saw Rudolph's head “[go] down a couple of times and back up.” Latchman testified that Rudolph appeared to be looking or reaching for something inside the vehicle. Latchman decided to drive his marked police vehicle around the gas station to “make sure everything was fine.” In doing so, he did not observe anything unusual. While Latchman was circling around the gas station, Rudolph began to drive away.

Latchman stopped Rudolph's vehicle. During the stop, Rudolph was asked to exit the vehicle; marijuana was found at the center floor divider where Rudolph's right leg had been. The discovery of that marijuana led to the conviction that is the subject of this appeal.

A defendant's claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo on appeal. Bolden v. Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002). In making such a determination, we give deference to the factual findings of the circuit court, but we independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment. McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 515 (2008).

In order to conduct an investigatory stop, a police officer need not have probable cause; he must have a reasonable suspicion, based on objective facts, that the person is involved in criminal activity. Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722 (1997). To establish reasonable suspicion, an officer must be able to articulate more than an unparticularized suspicion or “hunch” that criminal activity is afoot. Illinois v. Wardlow, 528 U.S. 119, 123–24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). A court must consider the totality of the circumstances when determining whether a police officer had a particularized and objective suspicion that the person stopped was involved in criminal activity. Ewell, 254 Va. at 217, 491 S.E.2d at 722–23. The fact that the stop occurred in a “high crime area” is a relevant factor; however, this fact is insufficient to supply a particularized and objective basis for suspecting criminal activity on the part of the particular person stopped. Wardlow, 528 U.S. at 124, 120 S.Ct. 673; McCain, 275 Va. at 552–53, 659 S.E.2d at 516.

We hold that the circumstances and actions observed by Latchman were not enough to create a reasonable articulable suspicion that criminal activity was afoot. Viewing the totality of the circumstances objectively, even though it was 8:00 p.m. and there had been robberies and burglaries in the area, the circumstances did not supply a particularized and objective basis to suspect that Rudolph's observed behavior was a precursor to a break-in, robbery, or any other criminal activity on his part. Therefore, Latchman stopped Rudolph in violation of Rudolph's rights under the Fourth Amendment. Because the marijuana was discovered as a result of an illegal stop, the trial court should have granted Rudolph's motion to suppress.

Rudolph entered a conditional guilty plea pursuant to Code § 19.2–254, which provides in part that “[i]f the defendant prevails on appeal, he shall be allowed to withdraw his plea.” Rudolph has prevailed on appeal regarding suppression of the evidence in this case. He is, therefore, entitled by statute to withdraw his plea of guilty. Rudolph must be given the opportunity to reassess the admissible evidence that may be used against him and, if the Commonwealth wishes to continue its prosecution, Rudolph may demand a trial if he so desires. See Code § 19.2–254; Hasan v. Commonwealth, 276 Va. 674, 681, 667 S.E.2d 568, 572 (2008).

Accordingly, the judgment of the Court of Appeals is reversed, Rudolph's conviction in the Circuit Court of the City of Virginia Beach, case number CR06–1036, is vacated, and we will remand this case to the Court of Appeals with direction that the Court of Appeals remand the case to the circuit court for proceedings consistent with the views expressed in this order if the Commonwealth be so advised.

Justice LEMONS, with whom Justice KINSER and Senior Justice CARRICO join, dissenting.

The jurisprudence of the United States Supreme Court dealing with searches and seizures under the Fourth Amendment has always sought to strike the correct balance between protecting the constitutional rights of citizens and ensuring that law enforcement officers can take necessary action to protect the public and ensure compliance with the law.

I believe the majority today has misapplied the law relating to investigatory stops under the Fourth Amendment, both in discounting the cumulative effect of the circumstances encountered by the police officer here, and in misconstruing the degree of suspicion required to justify such stops under Terry v. Ohio in a way that imposes a much heavier burden on police than the constitution warrants.

I. Principles of Law

Under the Fourth Amendment, brief stops by law enforcement officers to investigate the possibility of criminal behavior may be justified by a lower standard of suspicion than is required for “a ‘technical arrest’ or a ‘full-blown search,’ ” in the words of Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The Fourth Amendment prohibits “unreasonable searches and seizures” by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Because the “balance between the public interest and the individual's right to personal security” tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity “ ‘may be afoot.’ ”

United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations omitted). This doctrine, which was recognized as to pedestrians in Terry, 392 U.S. at 30, 88 S.Ct. 1868, has been extended to stops of vehicles whose drivers are suspected of engaging in wrongdoing. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); see also Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). We have also recognized and applied this lower standard to vehicle stops. Jackson v. Commonwealth, 267 Va. 666, 673, 594 S.E.2d 595, 598 (2004).

While “reasonable suspicion” must be based on more than an “inchoate and unparticularized suspicion or ‘hunch,’ ” Terry, 392 U.S. at 27, 88 S.Ct. 1868, the United States Supreme Court has also made clear that the standard only requires “some minimal level of objective justification” for making the stop in question, INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Terry, 392 U.S. at 21, 88 S.Ct. 1868). Indeed, the Court has often reemphasized the significant difference between the low threshold of “reasonable suspicion” on the one hand, and the considerably more demanding requirements of “probable cause,” “a preponderance of the evidence,” and “beyond a reasonable doubt” on the other. For example, in United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), the Court noted that reasonable suspicion is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less demanding than that for probable cause.” And in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the Court further explained that

reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required...