                        COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia


MICHAEL MAURICE WHITE
                                           MEMORANDUM OPINION * BY
v.   Record No. 2091-02-1                   JUDGE ROBERT P. FRANK
                                                JUNE 24, 2003
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                    S. Bernard Goodwyn, Judge

          Monte E. Kuligowski for appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General),
          for appellee.


     Michael Maurice White (appellant) was convicted in a bench

trial of possession of a firearm while in possession of drugs, in

violation of Code § 18.2-308.4, and of possession of cocaine with

the intent to distribute, in violation of Code § 18.2-248.    On

appeal, he contends the trial court erred in finding him guilty of

these offenses because appellant was illegally seized. 1   For the

reasons stated, we affirm the judgments of the trial court.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       This appeal is presented in an unusual posture because at
trial the Commonwealth did not object to the failure of
appellant to file a motion to suppress under Code § 19.2-266.2
nor to appellant's failure to object to the admissibility of the
evidence during the testimony. See Sykes v. Commonwealth, 37
Va. App. 262, 266 n.1, 556 S.E.2d 794, 796 n.1 (2001).
                              BACKGROUND

     Officer B. W. Shearin was on routine patrol on January 16,

2002, driving his patrol car in the area of Grady Crescent.      As he

turned a corner, he saw appellant and another man standing in a

parking lot of an apartment complex posted with "No Trespassing"

signs.   One sign was within "a few feet" of appellant.

     The apartment management had requested assistance from the

police in enforcing its trespass policy.   Officer Shearin

characterized the apartment complex as an area of "criminal

activity." 2

     As Officer Shearin drove closer, he saw appellant reach his

hand down toward the back tire of the vehicle beside which

appellant was standing.   The officer characterized this activity

as "suspicious."   When appellant stood up again, the officer could

see both of appellant's hands.    The officer parked and got out of

his car.    He approached appellant and the other man, asking, "how

are you all doing?"   He also asked if either of them lived on the

property.

     At this point, appellant "leaned over his [own] shoulder,"

squinted, and "appeared to pick a number off a door."     He was

looking at apartment numbered "59" on Grady Crescent.     When




     2
       During his motion to strike the evidence, appellant's
counsel conceded the area was "a place for known drug activity."



                                 - 2 -
appellant turned back around, he told the officer that he lived at

59 Grady Crescent.

     Officer Shearin then asked appellant if he had any

identification, and appellant responded he did not.   Officer

Shearin asked appellant for "his information."   Appellant replied

his name was Michael Maurice Smith and that he lived at 59 Grady

Crescent.

     As Officer Shearin began to write down the information in his

notebook, appellant ran away.   The officer ran after him.   Jeffrey

Andrews, a citizen, saw the chase, stopped his truck, and pursued

appellant.   Officer Constanza arrived and followed Shearin and

appellant.   As they were running, Andrews saw appellant toss a

chrome metallic object into the storm drain.    Appellant then

slipped and fell into the street.   Officer Shearin was "right

behind him."

     After he fell, appellant lay face down with his arms

underneath him, in the area of his stomach.    Appellant "was moving

back and forth."   Officer Shearin repeatedly ordered appellant to

show his hands as he grabbed appellant's arm.    Officer Johnson,

who had arrived at the scene earlier, tried to get the other arm

from underneath appellant.   The officers were "pulling him."

Appellant was "rocking up and he was going against [the officers]

putting [his arms] back down underneath him."    Finally, the

officers pulled appellant's arms from under his body.



                                - 3 -
     As the officers stood appellant upright, they found "two bags

of suspected marijuana and a plastic bag with six individually

packaged suspected cocaine rocks on the concrete where

[appellant's] hands and stomach were right there."   Another

officer recovered a .25 caliber, automatic handgun from the storm

drain.

     Appellant did not file a motion to suppress the cocaine or

the firearm, pursuant to Code § 19.2-266.2, nor did he object to

the introduction of these items.   At the conclusion of the

Commonwealth's case-in-chief, however, appellant moved to strike

the Commonwealth's evidence because he was illegally detained.    He

argued the police had no reasonable suspicion to seize him.    The

Commonwealth responded to the Fourth Amendment argument, without

objecting to appellant's failure to file a motion under Code

§ 19.2-266.2 or to appellant's failure to object to the

introduction of the drugs and firearm.   The trial court denied the

motion to strike.

     After appellant rested his case, he renewed his motion to

strike the evidence, again based on his Fourth Amendment argument

that the police had no reasonable suspicion to seize him.     Again,

the trial court denied the motion.




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                              ANALYSIS

     On brief, appellant concedes the initial encounter was

consensual. 3   However, he contends that the police had no

reasonable suspicion to detain appellant after he fled and fell

to the ground.    Appellant does not contend he was seized prior

to his fall.

     Although the trial court found appellant's Fourth Amendment

rights were not violated, it made no factual findings relevant

to this issue.    However, "[o]n appeal, 'we review the evidence in

the light most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom.'"   Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d

415, 418 (1987)).   We review de novo the trial court's

application of legal standards such as probable cause and

reasonable suspicion.    Shears v. Commonwealth, 23 Va. App. 394,

398, 477 S.E.2d 309, 311 (1996).




     3
       A consensual encounter occurs when police officers
approach persons in public places "'to ask them questions,'"
provided "'a reasonable person would understand that he or she
could refuse to cooperate.'" United States v. Wilson, 953 F.2d
116, 121 (4th Cir. 1991) (quoting Florida v. Bostick, 501 U.S.
429, 431 (1991)); see also Richards v. Commonwealth, 8 Va. App.
612, 615, 383 S.E.2d 268, 270 (1989). Such encounters "need not
be predicated on any suspicion of the person's involvement in
wrongdoing" and remain consensual "as long as the citizen
voluntarily cooperates with the police." Wilson, 953 F.2d at
121.


                                - 5 -
     It is undisputed that appellant was seized when the

officers grabbed his arms while he was lying on the ground.   Our

analysis, then, must focus on whether the police had reasonable

suspicion to seize him at that time.

           In order to justify the brief seizure of a
           person by an investigatory stop, a police
           officer need not have probable cause;
           however, he must have "a reasonable
           suspicion, based on objective facts, that
           the [person] is involved in criminal
           activity." Brown v. Texas, 443 U.S. 47, 51
           (1979); accord Zimmerman [v. Commonwealth],
           234 Va. [609,] 611, 363 S.E.2d [708,] 709;
           Leeth [v. Commonwealth], 223 Va. [335,] 340,
           288 S.E.2d [475,] 478. In determining
           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 the totality of the circumstances.
           United States v. Cortez, 449 U.S. 411,
           417-18 (1981); see Zimmerman, 234 Va. at
           612, 363 S.E.2d at 709; Leeth, 223 Va. at
           340, 288 S.E.2d 478.

Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722-23

(1997).   The totality of the circumstances in this case supports

a finding of reasonable suspicion.

     First, the officer observed appellant in a high crime area,

acting suspiciously.   While leaning down toward a car tire could

involve no illegal intentions, innocent behavior can be

suspicious.   See Terry v. Ohio, 392 U.S. 1, 22-23 (1968) (noting

that looking in store windows is not necessarily suspicious, but

can become suspicious based on the circumstances).   Leaning down




                               - 6 -
toward a car tire, while in a high crime area, just as a

uniformed officer comes into view, can be considered suspicious.

     Additionally, when the officer approached appellant, who

was in a posted "no trespassing" area, he could not provide an

address in the housing complex except by squinting at a building

behind him and giving the officer that address.    While this

behavior occurred during a consensual encounter, circumstances

that develop during such an encounter can provide reasonable

suspicion to detain a person.     See, e.g., Dickerson v.

Commonwealth, 35 Va. App. 172, 182, 543 S.E.2d 623, 628 (2001),

aff'd, ___ Va. ___, ___ S.E.2d ___ (June 6, 2003) (explaining

that probable cause can develop during a consensual encounter).

While a person can forget his addresses, such "forgetfulness"

while standing in a marked "no trespassing" area can be

suspicious, especially when, as here, the person could not

provide identification to confirm he actually lived at that

address.

     Another circumstance supporting the trial court's finding

of reasonable suspicion is appellant's flight.    On appeal,

appellant argues his flight was simply an exercise of his right

to end a consensual encounter.    While he is correct that he had

the right to end the encounter with the officer, his manner in

ending that encounter was suspicious.

     Flight clearly is suspicious behavior.    As the Supreme

Court noted, "Headlong flight -– wherever it occurs -– is the

                                 - 7 -
consummate act of evasion: it is not necessarily indicative of

wrongdoing, but it is certainly suggestive of such."     Illinois

v. Wardlow, 528 U.S. 119, 124 (2000).   While appellant had a

right to end the encounter, his sudden flight while Officer

Shearin was writing down his information constituted suspicious

behavior.

     Appellant's behavior when he fell also provided the

officers with another circumstance on which to develop

reasonable suspicion of criminal wrongdoing.   The placement of

appellant's hands and his movement while on the ground were

unusual, suggesting he was attempting to remove something from

his clothing.   We have found previously that such behavior can

provide reasonable suspicion for the police to act.    See

Welshman v. Commonwealth, 28 Va. App. 20, 34-35, 502 S.E.2d 122,

129 (1998) (en banc).

     As in the recently decided case of Whitfield v.

Commonwealth, the totality of the circumstances here provided

the officer with "a particularized and objective basis for

suspecting that the person stopped may be involved in criminal

activity."   265 Va. 358, 361, 576 S.E.2d 463, 465 (2003).   As in

Whitfield, Officer Shearin observed appellant "apparently

trespassing" in a high crime area, and appellant ran away.      Id.

at 362, 576 S.E.2d at 465.   Officer Shearin had the additional

factors, missing in Whitfield, of appellant's reaching to the



                               - 8 -
tire after he saw the officer and appellant's strange behavior

after he fell.

     We find, based on the totality of the circumstances,

appellant was not illegally seized.

                                                        Affirmed.




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