Rudolph v. Commonwealth, Record No. 0240-07-1 (Va. App. 2/26/2008)

• Decision Date: 26 February 2008
• Docket Number: Record No. 0240-07-1.
• Court: Virginia Court of Appeals
• Parties: DEMETRES JERROD RUDOLPH v. COMMONWEALTH OF VIRGINIA.

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Unpublished Opinion

DEMETRES JERROD RUDOLPH v.COMMONWEALTH OF VIRGINIA.

Record No. 0240-07-1.

Court of Appeals of Virginia, Chesapeake.

February 26, 2008.

Appeal from the Circuit Court of the City of Virginia Beach, A. Bonwill Shockley, Judge.

Melinda R. Glaubke(Slipow, Robusto & Kellam, P.C., on brief), for appellant.

Josephine F. Whalen, Assistant Attorney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Clements and Haley.

MEMORANDUM OPINION^*

JUDGE ROBERT J. HUMPHREYS.

Demetres J. Rudolph("Rudolph") appeals his conviction, following his conditional guilty plea, for possession of marijuana with intent to distribute, in violation of Code§ 18.2-248.1.Rudolph argues that the trial court erred by not suppressing marijuana found in his vehicle.Rudolph claims that the stop of his vehicle that resulted in the discovery of the marijuana violated the Fourth Amendment to the United States Constitution because the stop was not based on reasonable suspicion.We disagree and affirm the decision of the trial court.

ANALYSIS

The sole issue on appeal is whether Officer Jeremy Latchman's stop of Rudolph's vehicle was permissible under the Fourth Amendment.The permissibility of a traffic stop under the Fourth Amendment is "a mixed question of law and fact."Ornelas v. United States, 517 U.S. 690, 696(1996).Accordingly, "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 v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261(1997)(en banc).However, we review the trial court's application of the Fourth Amendment to those facts de novo.SeeOrnelas, 517 U.S. at 691.

The Fourth Amendment"does not proscribe all searches and seizures, but only those that are unreasonable."Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 619(1989).In Terry v. Ohio, 392 U.S. 1(1968), the Supreme Court of the United States"held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot."Illinois v. Wardlow, 528 U.S. 119, 123(2000)."Reasonable, articulable suspicion" requires more than an officer's "inchoate and unparticularized suspicion or 'hunch.'"Terry, 392 U.S. at 17.However, it requires "considerably less than proof of wrongdoing by a preponderance of the evidence" and "obviously less" than probable cause.United States v. Sokolow, 490 U.S. 1, 7(1989).To justify a Terry stop, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."Terry, 392 U.S. at 21.

"It is well established that whether reasonable suspicion 'exists to warrant an investigatory stop is determined by the totality of the circumstances.'"Gregory v. Commonwealth, 22 Va. App. 100, 107, 468 S.E.2d 117, 121(1996)(quotingSmith v. Commonwealth, 12 Va. App. 1100, 1103, 407 S.E.2d 49, 51(1991)).Some of the circumstances this Court has considered include "an obvious attempt to avoid officers,'"Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87(1987), the "defendant's presence in a high crime area,"Brown v. Commonwealth, 15 Va. App. 232, 235 n.1, 421 S.E.2d 911, 912 n.1(1992), and any "furtive movements and suspicious conduct" of the defendant, Purdie v. Commonwealth, 36 Va. App. 178, 186, 549 S.E.2d 33, 37(2001).

On the night in question, Officer Latchman was patrolling at a shopping center because the police department "had beefed up a lot of extra patrol and a lot of overtime due to the fact that there w[ere] a lot of break-ins and robberies in that specific shopping center."A gas station was located in the parking lot of that shopping center.Officer Latchman saw Rudolph and another man in "a vehicle with no lights on parked parallel in the rear" of the gas station.¹Officer Latchman found it "unusual" that Rudolph was parked behind the building because, although there is a rear entrance, "[t]he front of the building is where all the customers come in" and "no one enters [the rear entrance] at nighttime."²Officer Latchman also noted that, although there were marked parking spots near Rudolph's car, he was not parked in any of them.

Driving his marked police vehicle, Officer Latchman stopped approximately one to one-and-one-half car lengths behind Rudolph and watched the vehicle for several seconds.As he watched the car, he saw both passengers making "furtive movements."The two men "bent down a couple of times" and it "looked like they were reaching for stuff."Officer Latchman decided to drive around the gas station to "make sure everything was fine."As Officer Latchman proceeded around the building, Rudolph pulled away from the curb and began to leave.

Rudolph argues and the dissent agrees that those circumstances are not sufficient to create reasonable suspicion.We disagree.Several of the circumstances that Officer Latchman articulated point to the reasonable inference that the vehicle's occupants were preparing to rob the gas station.The gas station was in the parking lot of a shopping center that had recently been subject to several burglaries and robberies.³Rudolph was parked in a dark, low-traffic area in a manner well-suited for a quick getaway.He and the passenger were bending over and reaching around the floorboard, but did not turn on the vehicle's interior lights.When Rudolph saw Officer Latchman's patrol car pull past him, he promptly attempted to drive away.

Based on all of those circumstances, the trial court did not err in finding that it was reasonable to suspect "that criminal activity may be afoot."Terry, 392 U.S. at 17.Officer Latchman had been assigned to that shopping center specifically because of recent and repeated occurrences of a crime, the imminent commission of which was consistent with Officer Latchman's observations.Reasonable suspicion sufficient to allow a police officer to investigate does not arise only after the commission of a crime.Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77, 79(1992)("Actual proof that criminal activity is afoot is not necessary; the record need only show that it may be afoot."(emphasis in original)).To require a level of suspicion greater than that present in this case would be to effectively replace the requirement of reasonable suspicion with the higher standard of probable cause.

We disagree with the dissent's view that a finding of reasonable suspicion in this case is inconsistent with the holding of our Supreme Court in Ewell v. Commonwealth, 254 Va. 214, 491 S.E.2d 721(1997).The circumstances that Officer Latchman observed in this case are significantly more suspicious than the circumstances of Ewell.In Ewell, the only "suspicious" facts were that the suspect was parked late at night in an apartment complex "suspected of 'high narcotics' trafficking," the officer did not recognize the driver or the vehicle, and the vehicle attempted to leave upon the officer's arrival.Id. at 216, 491 S.E.2d at 722.The officer in Ewell did not observe any additional actions consistent with the trafficking of drugs.In fact, the Court specifically noted, "Although the automobile was parked in an area suspected of 'high narcotics' trafficking and it exited the parking lot upon [the officer's] arrival in a police vehicle, nothing about Ewell's conduct was suspicious."Id. at 217, 491 S.E.2d at 723.

The facts in this case are quite different.Here, as in Ewell, the officer observed the suspect parked at night in a high crime area and the suspect attempted to leave the parking lot shortly after the arrival of the police vehicle.However, the officer in this case, unlike the officer in Ewell, also observed several facts consistent with, and preparatory to, the very type of crime that had recently been occurring in that shopping center and which he had been assigned to prevent.Considering the specific recent history of robberies and burglaries and Rudolph's conduct consistent with that of a person preparing to commit that specific crime, the facts before us today are clearly more suspicious than the facts of Ewell.Thus, we reject the dissent's assertion that our decision today is inconsistent with Ewell.

The dissent also cites our recent case, Asble v. Commonwealth, 50 Va. App. 643, 653 S.E.2d 285(2007), as proof that Rudolph's movements inside his vehicle did not create reasonable suspicion.We agree that Rudolph's movements inside his vehicle did not in and of themselves give rise to reasonable suspicion.Rather, his movements were simply one of several factors that created reasonable suspicion.Asble is factually distinct from this case and does not dictate that the act of repeatedly bending down and reaching around the floorboard of a car cannot be considered as one factor among many that may together constitute reasonable suspicion.In Asble, reasonable suspicion did not exist because, unlike in this case, a furtive movement by a passenger of a parked car was the only suspicious circumstance the investigating officer could articulate.In Asble, a police officer observed a vehicle parked on the shoulder of an entrance ramp of a highway late at night.As he approached the vehicle the officer observed the driver "bend toward the floorboard, making a motion with his arm."Id. at 646, 653 S.E.2d at 286.When the officer arrived at the vehicle he saw a woman lying across the back seat and '"asked were they okay.'"Id.The driver told the officer that the woman was his wife and that she was sick.Without asking any further questions, the officer asked the driver to get out of the car and initiated a Terry stop.We held that the officer...