THE COURT OF APPEALS OF VIRGINIA
PRESENT: Goodwyn, Mims, McClanahan, Powell, Kelsey, and
McCullough, JJ., and Millette, S.J.
ARTHUR KELSEY JUSTICE
trial court convicted Patrick Darnell Hill of possession of
cocaine with intent to distribute, second offense, upon his
conditional guilty plea under Code § 19.2-254. He
appealed to the Court of Appeals, claiming that the trial
court erroneously denied his pretrial motion to suppress. The
Court of Appeals disagreed and affirmed, see Hill v.
Commonwealth, 68 Va.App. 610, 621, 625 (2018), as do we.
appeal, we state the facts 'in the light most favorable
to the Commonwealth, giving it the benefit of any reasonable
inferences.'" Commonwealth v. White, 293
Va. 411, 413-14 (2017) (citation omitted). "This
standard requires us 'to give due weight to inferences
drawn from those facts by resident judges and local law
enforcement officers.'" Id. at 414. We also
presume - even in the absence of specific factual findings -
that the trial court resolved all factual ambiguities or
inconsistencies in the evidence in favor of the prevailing
party and gave that party the benefit of all reasonably
debatable inferences from the evidence. See Fitzgerald v.
Commonwealth, 223 Va. 615, 627-28 (1982) (noting that
"[a]bsent a statutory mandate, . . . a trial court is
not required to give findings of fact and conclusions of
law" in support of a denial of a motion to suppress);
cf. Bowman v. Commonwealth, 290 Va. 492, 500 &
n.8 (2015) (explaining that when an appellate court is
"faced with a record of historical facts that supports
conflicting inferences," the court "must presume -
even if it does not affirmatively appear in the record - that
the trier of fact resolved any such conflicts in favor of
that prosecution, and must defer to that resolution"
(quoting Jackson v. Virginia, 443 U.S. 307, 326
(1979)) (citing Wright v. West, 505 U.S. 277, 296-97
(1992) (plurality opinion))).
considering whether to affirm the denial of a pretrial
suppression motion, an appellate court reviews not only the
evidence presented at the pretrial hearing but also the
evidence later presented at trial." White, 293
Va. at 414 (collecting cases). But when an appellate court
considers whether to "revers[e] a criminal conviction
based on an erroneous pretrial ruling," evidence or
proffers at trial are "relevant only if the defendant
renews his pretrial motion at trial." Id. at
n.2. A renewal of the motion is required to "satisfy
Rule 5:25 by inviting the trial court to reconsider its
pretrial ruling in light of the actual evidence presented -
rather than merely relying solely upon the charging
documents, pretrial proffers of the parties, or cursory
evidentiary presentations as the trial court sometimes must
do when deciding the issue prior to trial."
April 5, 2016, two detectives were patrolling the "600
block of Newport Avenue in the City of Portsmouth, which is a
high crime, drug area," J.A. at 6; see id. at
12, 16, 22, while "investigating some narcotics
complaints," id. at 21. Both detectives worked
in the Special Investigations Unit specializing in narcotics
transactions. See id. at 12, 22. The two detectives
had a combined experience of over 28 years, nearly 7 of which
they had spent investigating narcotics transactions. See
id. In that same "high drug, high crime area,"
one of the detectives had "made several [arrests] . . .,
mostly right behind that area." Id. at 22.
"secluded" high-crime, high-drug area, id.
at 16, the detectives saw Hill sitting alone in the
driver's seat of a parked car. He was "leaning back
in the seat watching" and not "moving around."
Id. at 20. The detectives made a U-turn and observed
Hill for approximately "a minute or so."
Id. at 22. As the detectives pulled up near
Hill's vehicle, Hill began "looking up and down, up
and down, and he was constantly doing a bunch of movement
inside of the vehicle." Id. at 7. The
detectives pulled up "right beside [Hill's]
vehicle" and parked approximately 25 feet away without
using any lights or sirens. Id. at 9-10. Wearing
their "police vest[s]" and "badge[s] of
authority," id. at 5, 10, 21; see id.
at 23, the detectives walked up to Hill "on the
driver's side of the vehicle, at which time when
[they] approached [Hill], he put his left
hand on the steering wheel and then . . . . he turned his
back and head away from [them]" and "began digging
with his right hand between . . . . the driver's
seat," id. at 7 (emphasis added); see
id. at 11, 19.
the detectives "walked up" to Hill, he "looked
up towards" the detectives and "immediately went
towards the back of the car." Id. at 24.
"[H]e hunched over behind the driver's seat and
[went] into the back seat area with his right hand."
Id. Fearing that Hill might be reaching for a
weapon, the detectives shouted: "Show us your hands,
show us your hands," id. at 7; see id.
at 11, 18, 24-25, and "[l]et's see your hands,
let's see your hands," while identifying themselves
as police officers, id. at 24. The detectives
recalled shouting this command approximately 7 to 10 times.
See id. at 11, 25. They were both "concerned
for [their] safety." Id. at 26; see
id. at 18.
detective was telling Hill, "Show me your hands, show me
your hands," Hill "kept digging around
inside the vehicle." Id. at 11 (emphasis
added). He turned his back to the detective and put "his
head down in the vehicle as he was digging down,
reaching." Id. (emphasis added); see
id. at 8. As Hill was "digging down,"
id., one of the detectives opened the driver's
door and "grabbed [him] by his left forearm" as
Hill "continued to pull away and dig down
between the seats." Id. at 7-8 (emphasis
added); see id. at 11. The seizing detective
"thought [Hill] had a firearm" given "the way
he was acting and the way he was pulling away,
reaching." Id. at 11. Immediately after the
seizure, the detective "informed" Hill that he
"thought [Hill] may have been reaching for a
firearm." Id. at 18 (emphasis added).
While the detective did not see a firearm, he understood that
"if there was a firearm in that vehicle that it would
have been concealed." Id. at 19.
the detectives immediately checked "under the
driver's seat in the same area the subject was
reaching" and discovered "a clear plastic baggie
containing cocaine." Id. at 8. Hill was
subsequently arrested and indicted for possession of cocaine
with intent to distribute. Hill moved to suppress the
cocaine, but the trial court denied the motion. The trial
court held that Hill "did certain actions within the car
that [the detectives testified] made them feel like they were
in danger based on his actions" and that "[t]he
officers acted properly and in a constitutional manner and
had reasonable suspicion for what they did."
Id. at 55. The Court of Appeals affirmed this
decision, and Hill now continues his challenge to the trial
court's denial of his motion to suppress on appeal to
argues on appeal that the detectives seized him in violation
of the reasonable-suspicion standard adopted in Terry v.
Ohio, 392 U.S. 1 (1968). His assignment of error asserts
that the detectives "lacked a reasonable, articulable
suspicion that [he] was engaged in criminal activity when he
was found in a high crime area and did not respond to the
officers' commands to show his hands."
Appellant's Br. at 1. This argument rests on two
assumptions: First, that the seizure in this case occurred
when Hill refused to "show his hands,
" and second, that a Terry seizure
can take place only when the suspect is "engaged in
criminal activity," id. We disagree with both
Fourth Amendment seizure of a person occurs either by
physical force or submission of the person to the assertion
of law enforcement authority. California v. Hodari
D., 499 U.S. 621, 626 (1991); see also Hall v.
Commonwealth, 280 Va. 566, 570-71 (2010); Bristol v.
Commonwealth, 272 Va. 568, 573 (2006); McCain v.
Commonwealth, 261 Va. 483, 491 (2001). The
detectives' commands for Hill to show his hands did not,
by themselves, result in a seizure because Hill never
submitted to this assertion of authority. Well-established
caselaw supports this conclusion. See, e.g.,
United States v. Waterman, 569 F.3d 144, 146 (3d
Cir. 2009) (holding that no seizure occurred when police drew
their guns and ordered the defendant to raise his hands but
he refused to do so and subsequently entered a house);
United States v. Valentine, 232 F.3d 350, 353, 359
(3d Cir. 2000) (holding that no seizure occurred even when
the defendant "momentarily 'complied'" with
an officer's order to "come over and place his hands
on the car" by stopping and saying "Who,
me?"); United States v. Johnson, 212 F.3d 1313,
1316-17 (D.C. Cir. 2000) (holding that no seizure occurred
"after [the defendant]'s first 'shoving
down' motion, when [the officer] drew his gun and ordered
[the defendant] to raise his hands" because the
defendant did not submit to the officer and "continued
to make 'shoving down' motions, gestures that were
the very opposite of complying with [the officer]'s
order"). Contrary to Hill's first assumption,
therefore, the detectives did not seize Hill until the moment
they physically placed their hands on him and pulled him from
inquiry into the timing of the seizure highlights Hill's
second mistaken assumption - that an officer must be
investigating a crime already in progress. As we recently
pointed out, "[i]n the seminal case Terry v.
Ohio, an investigative stop was held objectively
reasonable where the officer observed no elements of any
crime whatever, but only an entirely lawful course of conduct
which gave rise to a reasonable suspicion that the defendant
was preparing to commit a crime." Mason v.
Commonwealth, 291 Va. 362, 369 (2016) (emphasis added).
We also noted that "[t]he Supreme Court reached the same
result in United States v. Sokolow, where the
defendant also engaged in a lawful course of conduct that
nevertheless led an officer reasonably to conclude that a
crime was intended." Id. (emphasis added)
(citing United States v. Sokolow, 490 U.S. 1, 5,
8-11 (1989)). Succinctly put, Terry authorizes a
seizure of a suspect who "is, or is about to
be, engaged in criminal activity." United
States v. Cortez, 449 U.S. 411, 417 (1981) (emphasis
added); see also Navarette v. California, 572 U.S.
393, 401 (2014). Thus, "the relevant inquiry is not
whether particular conduct is 'innocent' or
'guilty,' but the degree of suspicion that attaches
to particular types of noncriminal acts."
Sokolow, 490 U.S. at 10 (citation omitted).
issue in this case is not, as Hill assumes, whether the
officers (both experienced detectives) had reasonable
suspicion to believe that Hill was a drug dealer and thus had
the authority to seize him to find out whether that suspicion
was correct before performing a protective search for
weapons. Hill was a drug dealer (he pleaded guilty to
possessing cocaine, second offense, with intent to
distribute), but we will assume arguendo that at the time of
the seizure the detectives had only a hunch, albeit a good
one, that Hill was one. The proper focus, however, is
"the more immediate interest of the police officer in
taking steps to assure himself that the person with whom he
is dealing is not armed with a weapon that could unexpectedly
and fatally be used against him." Terry, 392
U.S. at 23.
established a degree-of-certitude standard - reasonable
suspicion - to govern an officer's protected interest in
assuring his own safety. Terry set this standard
with a simple fact pattern. At 2:30 p.m., a police officer
observed Terry and his companions repeatedly walking back and
forth, looking into a store window, and conferring with one
another. See id. at 6. The officer "was unable
to say precisely what first drew his eye to them."
Id. at 5. But the officer had "been assigned to
patrol this vicinity" for 30 years looking for
"shoplifters and pickpockets." Id. The
curious back-and-forth movements by the men on a public
walkway while peering into a store window made the officer
suspect that they were "casing a job, a stick-up,"
and "he feared 'they may have a gun.'"
Id. at 6. After Terry and his companions "had
departed the original scene," id. at 28, the
officer walked up to the men, identified himself as a police
officer, asked for their names, and when they "mumbled
something," immediately patted them down and found two
handguns, id. at 6-7.
Supreme Court in Terry upheld the officer's
actions based upon his underlying duty of "effective
crime prevention and detection." Id. at 22. It
did not matter that each act within "the series of
acts" by Terry and his companions was "perhaps
innocent in itself" because "taken together"
the acts "warranted further investigation."
Id.; see also United States v. Arvizu, 534
U.S. 266, 274 (2002). "Even though the suspicious
individuals walking up and down the sidewalk 'could
simply have been innocuous, albeit overly energetic, window
shoppers,' that hypothesis of innocence 'did not
invalidate the Terry stop.'"
Shifflett, 58 Va.App. 732, 737 (2011) (citation
omitted). Nor did it matter that the officer had suspected
that Terry and his companions may be armed and dangerous when
he approached because the officer was discharging a
"legitimate investigative function . . . when he decided
to approach [Terry] and his companions." Terry,
392 U.S at 22.
these seemingly innocuous circumstances, the Supreme Court in
Terry concluded that the police officer "had
observed enough to make it quite reasonable to fear that
[Terry and his companions] were armed; and nothing in their
response to his hailing them, identifying himself as a police
officer, and asking their names served to dispel that
reasonable belief." Id. at 28. The seizure was
not "the product of a volatile or inventive
imagination," nor was it "undertaken simply as an
act of harassment." Id. Rather, the seizure was
"the tempered act of a policeman who in the course of an
investigation had to make a quick decision as to how to
protect himself and others from possible danger, and took
limited steps to do so." Id.
framed, the ultimate issue in this case is whether, at the
time of the seizure, the detectives had reasonable suspicion
to believe that they were about to be assaulted with a
weapon. Brandishing a weapon is a crime, see
Code § 18.2-282, as are attempted unlawful or malicious
wounding, see Code §§ 18.2-26, -51, and
attempted murder, see Code §§ 18.2-26,
-32. The answer to this question turns on whether the
detectives could have reasonably suspected that that Hill
may have been reaching for a weapon. ...