THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH William S. Moore,
Stephanie J. Pough (Eric O. Moody and Associates, P.C., on
brief), for appellant.
H. Anderson, III, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, Decker and O'Brien Argued at
GRACE O'BRIEN JUDGE.
Darnell Hill ("appellant") was indicted for
possession of a Schedule I or II controlled substance with
intent to distribute, third offense, in violation of Code
§ 18.2-248. Appellant filed a motion to suppress
evidence recovered during a search of his vehicle, claiming
that police officers improperly seized him and the drugs
found in his car in violation of his Fourth Amendment rights.
The court denied his motion, and appellant entered a
conditional guilty plea to the lesser-included offense of
possession with intent to distribute as a second offense,
preserving his right to appeal pursuant to Code §
19.2-254. Finding no error in the court's denial of
appellant's suppression motion, we affirm.
appeal of the denial of a motion to suppress evidence, we
review the facts in the light most favorable to the
prevailing party, the Commonwealth. Aponte v.
Commonwealth, 68 Va.App. 146, 156, 804 S.E.2d 866, 870
(2017). So viewed, the evidence established that on the
afternoon of April 5, 2016, Detectives Hunter and Whitson of
the Portsmouth Police Department were "investigating
some narcotics complaints" in the 600 block of Newport
Avenue in the City of Portsmouth. Detective Hunter had been
assigned to a unit specializing in narcotics transactions for
two-and-a-half years of his seven years on the police force.
Detective Whitson, a twenty-one-year employee of the police
department, had been with the narcotics unit for four years.
detectives identified the 600 block of Newport Avenue as
"a high drug, high crime area." Detective Whitson
testified that he had previously "made several [drug
arrests] in that area, mostly right behind that area."
Detective Hunter confirmed that he had also "been [to]
several places in that area . . . about drug sales."
detectives observed appellant sitting alone in a black Lexus,
leaning back in the driver's seat and "[not] moving
around." The vehicle was parked in front of a fence that
bordered a "shop of some sort." The detectives
drove their unmarked police car past the Lexus and executed a
U-turn, without activating their lights or siren. As the
detectives again approached the Lexus in their car, appellant
looked in their direction. The detectives parked
approximately twenty-five feet away and watched
appellant's car for "a minute or so." During
that period, the detectives observed appellant make "a
bunch of movement inside of the vehicle" by repeatedly
"looking up and down."
Hunter testified that based on the character of the location
and his experience with drug dealers waiting for their
clients in "a secluded area, " he was investigating
possible narcotics activity. The detectives, who were wearing
police vests and patches, exited their car and started
walking toward the Lexus. Appellant again looked in their
direction and immediately began to engage in more extensive
movement inside the car. The detectives observed appellant
place his left hand on the steering wheel, turn his back and
head away from them, and use his right hand to "d[i]g
down" next to the driver's seat. Neither detective
was able to see what, if anything, was in appellant's
for their safety, the detectives verbally identified
themselves as police officers and demanded that Hill show his
hands. Detective Hunter later told appellant "that he
thought [appellant] had a firearm [based on] the way he was
acting and the way he was pulling away, reaching."
Appellant did not obey the detectives' orders, and his
right hand remained out of view. After shouting at appellant
"at least ten times" to show his hands, the
detectives grabbed appellant's left forearm, physically
removed him from the vehicle, and placed him in handcuffs.
appellant was secured, Detective Hunter looked under the rear
portion of the driver's seat where appellant had been
reaching. There, he found a plastic bag containing
individually wrapped rocks of crack cocaine. Appellant was
subsequently charged with drug possession.
filed a motion to suppress the seized evidence and following
a hearing, the court denied the motion. The court ruled that
"the officers acted properly and in a constitutional
manner and had reasonable articulable suspicion for what they
did." On appeal, appellant's sole argument is that
the detectives lacked reasonable suspicion for an
investigative detention and subsequent search of the
review of the court's denial of a suppression motion,
"the burden is upon [the appellant] to show that the
ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error." Andrews
v. Commonwealth, 37 Va.App. 479, 488, 559 S.E.2d 401,
406 (2002) (quoting McGee v. Commonwealth, 25
Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) (en
banc)). "[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, 25
Va.App. at 198 & n.1, 487 S.E.2d at 261 & n.1. We
review de novo the application of law to the
court's factual findings. Watts v. Commonwealth,
38 Va.App. 206, 213, 562 S.E.2d 699, 703 (2002).
asserts that he was impermissibly seized in violation of his
Fourth Amendment rights, and as a result, the cocaine found
by the police officers should be suppressed. He contends that
the evidence, viewed in its entirety, did not support the
conclusion that the detectives had a reasonable articulable
suspicion sufficient to seize him and search his vehicle.
Fourth Amendment Seizures
Fourth Amendment of the United States Constitution, as
incorporated in and applied to the states through the
Fourteenth Amendment, guarantees "[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures." A
person is not seized according to the Fourth Amendment until
he submits to a police officer's show of authority.
Cochran v. Commonwealth, 258 Va. 604, 608, 521
S.E.2d 287, 289 (1999); see also California v. Hodari
D., 499 U.S. 621, 625 (1991); McGee, 25 Va.App.
at 199, 487 S.E.2d at 262 (stating that no seizure occurs
until "an individual is either physically restrained or
has submitted to a show of authority"). "[T]here is
no seizure without actual submission; otherwise, there is at
most an attempted seizure, so far as the Fourth Amendment is
concerned." Brendlin v. California, 551 U.S.
249, 254 (2007). We addressed the issue of "submission
to authority" in Beasley v. Commonwealth, 60
Va.App. 381, 728 S.E.2d 499 (2012). In Beasley,
although the defendant and another passenger in a parked
vehicle initially complied with an officer's directions
to show their hands, they continued to make "furtive
movements, " and the defendant began reaching to the
side of his seat. Id. at 386-88, 728 S.E.2d at
501-02. We held that it was not until the defendant responded
to the officer's third command to keep his hands in his
lap that he was seized for Fourth Amendment purposes.
Id. at 394, 728 S.E.2d at 505. See also Jones v.
Commonwealth, 52 Va.App. 548, 665 S.E.2d 261 (2008)
(holding that the defendant was not seized until he stepped
out of the vehicle because he did not submit to the
detectives' authority until then).
appellant did not comply with the detectives' requests to
show his hands, and therefore he did not submit to their
authority while sitting in the vehicle. The detectives were
not required to articulate a suspicion of criminal behavior
to explain their observation of appellant and their approach
to his vehicle. Although Detectives Hunter and Whitson both
testified that appellant was sitting in a parked car in an
area known for drug transactions, and they were specifically
investigating narcotics sales in that location, those facts
were not necessary to justify their decision to approach the
Lexus. Their initial interaction with appellant was
constitutionally permissible; appellant was not seized at
that point. No seizure occurred until the detectives
physically removed him from the vehicle and placed him in
handcuffs. It was only then that appellant submitted to their
authority and was seized for purposes of the Fourth
Reasonable Articulable Suspicion
determined when the seizure of appellant occurred, we turn to
whether the detectives had a reasonable articulable suspicion
that, at the time of the seizure, appellant may have been
involved in criminal activity. See Terry v. Ohio,
392 U.S. 1, 27 (1968); see also Jones, 52 Va.App. at
559, 665 S.E.2d at 267. The Supreme Court has described an
"articulable suspicion" as a "conclusion that
can be expressed in words sufficient to persuade a reasonable
listener to come to a like conclusion." Mason v.
Commonwealth, 291 Va. 362, 369, 786 S.E.2d 148, 152
(2016). However, "'[a]rticulable' does not mean
'articulated.'" Id. "A police
officer conducting a stop is not required to precisely and
individually articulate the facts that added up to suspicion
in his mind." Id. (quoting United States v.
Brown, 232 F.3d 589, 594 (7th Cir. 2000)).
The test is not what the officer thought, but rather whether
the facts and circumstances apparent to him at the time of
the stop were such as to create in the mind of a reasonable
officer in the same position a suspicion that a ...