                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Malveaux and Athey
            Argued by teleconference
PUBLISHED




            AARON EMILE McARTHUR
                                                                                OPINION BY
            v.     Record No. 1793-19-2                                 JUDGE CLIFFORD L. ATHEY, JR.
                                                                                JULY 28, 2020
            COMMONWEALTH OF VIRGINIA


                            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                          Gregory L. Rupe, Judge1

                           Miriam Airington-Fisher (Airington, Stone & Rockecharlie, PLLC,
                           on briefs), for appellant.

                           Rosemary V. Bourne, Senior Assistant Attorney General
                           (Mark R. Herring, Attorney General, on brief), for appellee.


                   Aaron Emile McArthur (“McArthur”) appeals his conviction in the Circuit Court of the

            City of Richmond for possession of a firearm by a convicted felon in violation of Code

            § 18.2-308.2. McArthur alleges that the trial court erred by: (1) denying his motion to suppress

            the firearm in violation of his Fourth Amendment right against unlawful searches, (2) admitting

            into evidence the entirety of his criminal history, (3) denying his motion to strike the evidence,

            and (4) denying his motion to set aside the verdict.

                                                     I. BACKGROUND

                   On May 12, 2018, Richmond Police Officer Michael Blaylock (“Officer Blaylock” or

            “Blaylock”) initiated a traffic stop on a vehicle McArthur was driving for a defective fog light.

            After ascertaining McArthur’s identity, Officer Blaylock asked McArthur if there were any



                   1
                     Judge Beverly W. Snukals presided over the March 13, 2019 hearing denying
            appellant’s motion to suppress which is the subject of this appeal.
weapons in the vehicle. McArthur stated that the vehicle was owned by his girlfriend and, as far

as he knew, there were no weapons in her vehicle. McArthur then provided Blaylock with an

identification card, which was passed along to Officer Carrie Griffith (“Officer Griffith” or

“Griffith”).

       Officer Griffith returned to the police cruiser with the identification card and obtained

criminal and driving information on McArthur from the mobile computer in the police cruiser.

The information included an alert through the Virginia Department of Corrections that McArthur

was thought to have been a member of the Crips gang during a previous incarceration. While

Griffith was obtaining this information, Blaylock asked McArthur to consent to a search of his

girlfriend’s vehicle due to what Blaylock described as McArthur’s “sketchy” demeanor.

McArthur declined to consent to a search of the vehicle because he did not own the vehicle.

McArthur then called his girlfriend to see if she would consent to a search of her vehicle. During

the entirety of the traffic stop, McArthur made no furtive movements around the cabin of the

vehicle and was polite and cooperative with Blaylock.

       When McArthur declined to consent to a search of his girlfriend’s vehicle, Blaylock

instructed McArthur to exit the vehicle so that he could conduct a “protective sweep.” McArthur

immediately complied with Blaylock’s request and exited and stood at the rear of the vehicle.

Upon exiting the vehicle, McArthur began to sweat profusely and nervously stated to his

girlfriend on the phone that “they are locking me up.” Blaylock then searched underneath the

driver’s seat where he found a 9mm handgun hidden from view. After discovering the firearm,

Blaylock instructed Officer Griffith to place McArthur under arrest. Officer Griffith did not

inform Blaylock of McArthur’s alleged past gang affiliation until the search of the vehicle and

arrest had been effectuated.




                                               -2-
       McArthur subsequently moved to suppress any evidence recovered during the search of

the vehicle. McArthur argued that Blaylock lacked a reasonable articulable suspicion that he

was armed and dangerous when he engaged in the protective sweep of the vehicle. The

Commonwealth defended Blaylock’s protective sweep by arguing, in part, that Blaylock had a

reasonable articulable suspicion based on the imputed knowledge Officer Griffith obtained

concerning McArthur’s alleged prior gang affiliation and incarceration. The trial court denied

the motion to suppress, stating, “[t]he factors that the Court relied on are the evasiveness of the

defendant at the scene, the gang affiliation information from [the databases], the high crime area,

the lack of cooperativeness, and all the other conduct the officer testified to and was reflected on

the body cam.”

       At trial, McArthur moved to strike the Commonwealth’s case at the conclusion of their

case-in-chief and at the conclusion of all the evidence based, in part, upon the trial court’s failure

to suppress the admission into evidence of the firearm. McArthur was subsequently found guilty

of possession of a firearm as a violent felon and moved to set aside the verdict as contrary to the

law and the evidence. The trial court denied the motion to set aside the verdict before sentencing

McArthur to five years’ incarceration. This appeal followed.

                                            II. ANALYSIS

                                      A. MOTION TO SUPPRESS

       On appeal, when considering a challenge to the denial of a motion to suppress, the Court

will review the decision de novo “when the defendant claims that the evidence sought to be

suppressed was seized in violation of the Fourth Amendment.” Glenn v. Commonwealth, 275

Va. 123, 130 (2008). However, we are “bound by the [trial] court’s findings of historical fact

unless ‘plainly wrong’ or without evidence to support them” and “give due weight to the

inferences drawn from those facts by resident judges and local law enforcement officers.”

                                                 -3-
McGee v. Commonwealth, 25 Va. App. 193, 198 (1997) (en banc). We also view the evidence

in the light most favorable to the prevailing party, the Commonwealth, with all inferences fairly

deducible from that evidence accorded to the Commonwealth. Hill v. Commonwealth, 297 Va.

804, 808 (2019).

                             1. REASONABLE ARTICULABLE SUSPICION

       The Fourth Amendment to the United States Constitution protects individuals from

unreasonable warrantless searches and seizures. In Terry v. Ohio, 392 U.S. 1 (1968), the United

States Supreme Court permitted “a protective search for weapons in the absence of probable

cause to arrest . . . when a [police officer] possesses an articulable suspicion that an individual is

armed and dangerous.” Michigan v. Long, 463 U.S. 1032, 1034 (1983). “Recognizing the

inordinate risk confronting the officer as he approaches a person seated in an automobile, the

Court has extended such protective searches beyond the person, including areas of the passenger

compartment of an automobile in which a weapon may be placed or hidden.” Id.

       Whether reasonable suspicion exists is “based on an assessment of the totality of the

circumstances,” Harris v. Commonwealth, 276 Va. 689, 695 (2008), which “allows officers to

draw on their own experience and specialized training to make inferences from and deductions

about the cumulative information available to them that might well elude an untrained person,”

Branham v. Commonwealth, 283 Va. 273, 280 (2012) (citations omitted). Additionally, if it is

reasonable for the officer to suspect that the stopped individual may be armed and presently

dangerous to the officer, “a limited protective search” of the individual being detained is

reasonable under the Fourth Amendment. Adams v. Williams, 407 U.S. 143, 146 (1972). The

proper focus 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.

                                                 -4-
       As a result, “‘reasonable suspicion’ is ‘considerably less than proof of wrongdoing by a

preponderance of the evidence,’ and ‘obviously less demanding than that for probable cause.’”

Perry v. Commonwealth, 280 Va. 572, 581 (2010) (quoting United States v. Sokolow, 490 U.S.

1, 7 (1989)). We must therefore look to the totality of the circumstances of each case in

determining the validity of a police officer’s actions. Whitfield v. Commonwealth, 265 Va. 358,

361 (2003). In addition, whether the conduct of a police officer is reasonable “is judged from the

perspective of a[n objectively] reasonable officer on the scene allowing for the need of

split-second decisions and without regard to the officer’s [subjective] intent or motivation.”

Thompson v. Commonwealth, 54 Va. App. 1, 7 (2009) (quoting Scott v. Commonwealth, 20

Va. App. 725, 727 (1995)). Therefore a protective sweep may be justified where “the police

officer possesses a reasonable belief based on ‘specific and articulable facts which taken together

with the rational inferences from those facts, reasonably warrant’ the officer in believing that the

suspect is dangerous and may gain immediate control of weapons.” Taylor v. Commonwealth,

10 Va. App. 260, 264 (1990).

       Here, McArthur was initially stopped for a defective fog light, made no furtive

movements inside the vehicle, and was cooperative and polite. When Blaylock asked for consent

to search the vehicle, McArthur reasonably declined on the basis that he was not the owner of the

vehicle. Although the Fourth Amendment does not require McArthur to provide a reasonable

basis for declining to consent to a warrantless search of his girlfriend’s vehicle, McArthur

provided a reasonable justification for declining to consent to the search. Furthermore,

McArthur contacted his girlfriend during the traffic stop to see if she would consent to the

search. In addition, upon request, McArthur immediately exited the vehicle and stood in an area

behind the vehicle while Blaylock completed the warrantless search. Even though this traffic

stop did occur in a “high crime area,” the Virginia Supreme Court has held that a “person’s

                                                -5-
Fourth Amendment rights are not lessened simply because he or she happens to live or travel in a

‘high crime’ area.” McCain v. Commonwealth, 275 Va. 546, 553 (2008).

       In Hill v. Commonwealth, 297 Va. 804, 815 (2019), a defendant was sitting alone in his

car in a high crime, high drug area. Upon approaching the vehicle, the defendant ignored

repeated requests by the officer to show his hands and instead began “digging down” in the rear

floorboard area of the car. Id. The Virginia Supreme Court held in that instance that, because of

the lack of cooperation when asked to show his hands, and the furtive movements of the

defendant reaching around in the floor of the car, the police had a reasonable basis for believing

that the defendant was reaching for a weapon. Id. The Court noted, however, that the police

would not be justified in searching or seizing the defendant if he had simply remained still and

refused to show his hands when the police officers commanded him to do so. Id. at 821. See

United States v. Lowe, 791 F.3d 424, 428, 433-35 (3d Cir. 2015) (finding no reasonable

suspicion to conduct a Terry stop and frisk when the defendant did not take his hands out of his

pockets when asked to do so and appeared “frozen” or “shocked” in response and merely

“looked both ways over his shoulders”).

        At the time of the search, Blaylock thought McArthur seemed “sketchy” and nervous,

however, “[n]ervousness during the course of a traffic stop, standing alone, is insufficient to

justify a frisk for weapons . . . .” McCain, 275 Va. at 554. Blaylock confirmed, at the

suppression hearing, that McArthur was polite and cooperative throughout the traffic stop and

made no furtive movements around the cabin of the vehicle. As the Supreme Court noted in

Hill, a lack of furtive movements by a polite and cooperative driver would negate the requisite

reasonable articulable suspicion required, in the instant case, to initiate a search of the driver or

cabin of the vehicle. See Hill, 297 Va. at 821.




                                                  -6-
       During the suppression hearing, Blaylock also attempted to justify the search of the

vehicle based upon his belief that McArthur was being evasive when he declined to consent to

search the vehicle. The exercise of one’s Fourth Amendment right to decline a warrantless

search can never rise to the level of reasonable articulable suspicion that a person is armed and

dangerous. If the Court permitted declining consent to search as justification for a warrantless

search, then the exception to the rule would subsume the rule and McArthur would be denied the

ability to exercise his constitutional right to decline a warrantless search.

       As the Virginia Supreme Court stated in Hill, “the ultimate touchstone of the Fourth

Amendment is reasonableness.” Hill, 297 Va. at 822 (quoting Brigham City v. Stuart, 547 U.S.

398, 403 (2006)). In the case at hand, it was unreasonable for Blaylock to conduct a protective

sweep of a vehicle that had been pulled over for a defective fog light when McArthur made no

furtive movements around the cabin of the vehicle, was cooperative and polite during the traffic

stop, and immediately exited the vehicle at the officer’s request. Without any further articulable

facts indicating that Officer Blaylock reasonably suspected that McArthur was armed and

dangerous, it was unreasonable for the officer to conduct a protective sweep of the vehicle.

                              2. COLLECTIVE KNOWLEDGE DOCTRINE

       The Commonwealth also contends that Officer Griffith’s knowledge that McArthur may

have been gang affiliated while previously incarcerated should be imputed to Blaylock, creating

reasonable articulable suspicion through the collective knowledge doctrine. The Commonwealth

argues that a protective sweep of the vehicle would then be justified in this case due to

Blaylock’s imputed knowledge that gang affiliated individuals may be armed and dangerous.

The Commonwealth bases their argument on Commonwealth v. Smith, 281 Va. 582, 586 (2011),

however their reliance is misplaced.




                                                 -7-
       In Smith, the Virginia Supreme Court held that a pat down of the defendant’s outer

clothing and subsequent seizure of a weapon was justified based on information obtained by

police databases alerting officers at the scene that the defendant might be armed and dangerous.

Id. The key distinction from the instant case is that the officers who participated in the pat down

in Smith received the alert that Smith may be armed and dangerous prior to patting down the

defendant’s outer clothing. Id.

       The facts here are clearly distinguishable from Smith. While Officer Griffith did receive

an alert that McArthur had been previously incarcerated and could have gang affiliation, Griffith

did not relay the information about McArthur’s gang involvement while incarcerated to Blaylock

until after the search of the vehicle was complete.

       In Edmond v. Commonwealth, 66 Va. App. 490 (2016), we subsequently discussed the

origins of what is now known as the collective knowledge doctrine at issue in Smith. Relying on

Whiteley v. Warden, 401 U.S. 560 (1971), and United States v. Hensley, 469 U.S. 221 (1985),

we found that the collective knowledge doctrine is supported on “the premise that where an

officer’s action is directed by another officer, that action is proper as long as the directing officer

has the requisite knowledge to justify the action under the appropriate legal standard.” Edmond,

66 Va. App. at 502.

       Edmond also views positively the ruling from the United States Court of Appeals for the

Fourth Circuit in United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011).2 In Massenburg,

two officers responded to an anonymous tip about shots having been fired in an area known to be

a high crime area. Id. at 483. The officers stopped four men and requested their consent to a

search. Id. Massenburg declined the officers’ request and stated that he did not need to be



       2
         We recognize that cases decided by the Fourth Circuit are persuasive and not binding
upon this Court.
                                              -8-
searched. Id. Massenburg was subsequently searched involuntarily, and a gun and small amount

of marijuana were recovered. Id. The second officer on the scene testified that prior to the

searching officer frisking Massenburg, he had observed what he believed to be a small bulge in

Massenburg’s jacket but failed to communicate this knowledge to the frisking officer before the

search was initiated. Id.

       The primary issue in Massenburg was whether, under the collective knowledge doctrine,

the non-frisking officer’s uncommunicated observation of a bulge in Massenburg’s jacket should

be imputed to the frisking officer as the basis for the frisking officer’s reasonable suspicion thus

permitting him to conduct the search. Id. at 491. The Fourth Circuit rejected this expansive

aggregation principle it referred to as “horizontal” aggregation, distinguishing it from the less

expansive “vertical” aggregation. Id. at 494. The court described a “‘vertical’ collective

knowledge relationship in which [one] officer’s conclusion [i]s conveyed” to others who then

effect the seizure before distinguishing that relationship from a “‘horizontal’ collective

knowledge relationship in which the knowledge of several officers must be aggregated to create

probable cause.” Id. at 493 (quoting United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1228

n.5 (10th Cir. 2008)). Concluding that through Supreme Court precedent, the doctrine “holds

that when an officer acts on an instruction from another officer, the act is justified if the

instructing officer had sufficient information to justify taking such action herself; in this very

limited sense, the instructing officer’s knowledge is imputed to the acting officer.” Id. at 492.

       While this Court previously adopted the collective knowledge doctrine in Edmond, we

have not resolved the extent to which the aggregation principles discussed in Massenburg apply

to cases arising in the Commonwealth of Virginia. The Commonwealth would have us expand

the Virginia Supreme Court’s holding in Smith, and our holding in Edmond, to adopt the




                                                 -9-
“horizontal” aggregation principle. We decline to expand the aggregation principle to this

extreme.

       Here, no information or instructions were transmitted between Griffith and Blaylock prior

to Blaylock initiating the search. Blaylock did not initiate the search based on instructions from

Griffith after she had sufficient information to justify such action herself. We therefore decline

to adopt the Commonwealth’s position that Officer Griffith’s uncommunicated knowledge

provides an after-the-fact justification to Blaylock’s illegal search when Blaylock was not acting

in reliance on her instructions or information. If we were to adopt the Commonwealth’s

position, the legality of a warrantless search would depend solely on whether officers are able to

gather information held by other officers, after-the-fact, to create reasonable suspicion or

probable cause. See Massenburg, 654 F.3d at 493.

       We find that “horizontal” aggregations of knowledge, which are only communicated

between officers after a stop, search, or arrest, cannot be subsequently relied upon by an officer

as evidence supporting a reasonable articulable suspicion justifying the police action. However,

as we held in Edmond, “an officer is justified in acting upon an instruction from another officer

if the instructing officer had sufficient information to take such action himself.” Edmond, 66

Va. App. at 503. This “vertical” aggregation of knowledge was found to be proper by the

Virginia Supreme Court in Smith, and our decision in Edmond, and does not violate the Fourth

Amendment principles allowing an officer to rely on bulletins or information obtained from

databases thereby permitting officers “to act promptly in reliance on information.” Hensley, 469

U.S. at 231.

       The exclusionary rule’s “sole purpose . . . is to deter future Fourth Amendment

violations.” Massenburg, 654 F.3d at 494 (quoting Davis v. United States, 564 U.S. 229, 236-37

(2011)). The expansion of the collective knowledge doctrine, as advocated by the

                                               - 10 -
Commonwealth in this case, to allow for “horizontal” aggregation of knowledge not only fails to

deter future Fourth Amendment violations but may well encourage them. See id.

       As a result, we decline to impute Officer Griffith’s knowledge of McArthur’s possible

gang affiliations to Officer Blaylock as justification for a protective sweep of the vehicle and

thus the trial court erred in failing to grant the motion to suppress. Since any evidence, including

the firearm, gathered from this protective sweep is in violation of McArthur’s Fourth

Amendment rights, the evidence is fruit of the poisonous tree and should have been suppressed.

                                B. SUFFICIENCY OF THE EVIDENCE

       Although we reverse McArthur’s conviction as violative of the Fourth Amendment of the

United States Constitution, we are compelled to address McArthur’s assignments of error three

and four regarding the sufficiency of the evidence to sustain his conviction for possessing a

firearm after having previously been convicted of a felony in order to ensure that any retrial of

this charge would not violate double jeopardy principles. In doing so, we consider all of the

evidence at trial, including the firearm which we have determined should have been suppressed.

See Code § 19.2-324.1 (“the reviewing court shall consider all evidence admitted at trial to

determine whether there is sufficient evidence to sustain the conviction” (emphasis added));

Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988) (“It is quite clear from our opinion in Burks [v.

United States, 437 U.S. 1 (1978),] that a reviewing court must consider all of the evidence

admitted by the trial court in deciding whether retrial is permissible under the Double Jeopardy

Clause -- indeed, that was the ratio decidendi of Burks -- and the overwhelming majority of

appellate courts considering the question have agreed.” (internal citation omitted)).

       It is well settled that “[w]hen a defendant challenges the sufficiency of the evidence, we

view the evidence and all reasonable inferences in the light most favorable to the

Commonwealth, the prevailing party in the trial court.” Rowland v. Commonwealth, 281 Va.

                                               - 11 -
396, 399 (2011). “The judgment of conviction will be reversed only when the ruling is plainly

wrong or without evidence to support it.” Cordon v. Commonwealth, 280 Va. 691, 694 (2010).

“[I]t is just as obligatory upon the appellate court, to set aside . . . the judgment of a court, when

it is, in its opinion, contrary to the law and evidence, and therefore plainly wrong, as it is to

sustain it when the reverse is true.” Preston v. Commonwealth, 281 Va. 52, 57 (2011) (quoting

Hickson v. Commonwealth, 258 Va. 383, 387 (1999)).

       Code § 18.2-308.2 provides, in pertinent part that “[i]t shall be unlawful for (i) any

person who has been convicted of a felony . . . to knowingly and intentionally possess or

transport any firearm or ammunition for a firearm . . . .”

       At the close of the Commonwealth’s case-in-chief, McArthur moved to strike the

evidence as insufficient to prove, beyond a reasonable doubt, that McArthur knowingly and

intelligently possessed the firearm found hidden under the driver’s seat of his girlfriend’s

vehicle. The trial court denied his motion. Post-trial, McArthur also moved to set aside the

conviction as contrary to the law and evidence on the same grounds. The trial court also

overruled McArthur’s motion to set aside his conviction.

       In this case, the evidence established that a firearm was found concealed underneath the

driver’s seat of his girlfriend’s car which he was driving immediately prior to the firearm being

found. “A conviction for unlawful possession . . . may be based solely on evidence of

constructive possession.” Wright v. Commonwealth, 278 Va. 754, 759 (2009). Whether

evidence is sufficient to prove constructive possession “is largely a factual” question and

requires circumstantial proof “that the defendant was aware of the presence and character of the

[firearm] and that the [firearm] was subject to his dominion and control.” Smallwood v.

Commonwealth, 278 Va. 625, 630 (2009).




                                                - 12 -
       Here, the facts establish that the firearm was found underneath the driver’s seat, placed in

a manner consistent with how someone in the driver’s seat might store a firearm, and was easily

accessible upon a search beneath McArthur’s seat, providing sufficient evidence that the firearm

was within McArthur’s dominion and control. See id. at 631 (finding firearm within defendant’s

dominion and control when located on an open console beside defendant’s leg).

       McArthur alleges, however, that no evidence exists to show that he was aware of the

presence and character of the firearm. We disagree. While McArthur’s actions inside the

vehicle did not rise to the level of reasonable articulable suspicion to justify a warrantless search

of the vehicle, McArthur’s statements and nervous behavior after following Officer Blaylock’s

instructions to step out of the vehicle provide sufficient circumstantial evidence to show that he

was aware of the firearm under the driver’s seat.

       Once Blaylock asked McArthur to get out of the vehicle, McArthur began to sweat

profusely and nervously stated that “they are locking me up” to his girlfriend on the phone.

Taking these facts, and drawing inferences in favor of the Commonwealth, we cannot say that

the trial court was plainly wrong, as a matter of law, in finding that McArthur constructively

possessed the firearm. See Commonwealth v. Hudson, 265 Va. 505, 513 (2003) (clarifying that

on appellate review, the issue is whether a reasonable jury, upon consideration of all of the

evidence in the light most favorable to the Commonwealth and the reasonable inferences

therefrom, could have found the accused guilty beyond a reasonable doubt). Therefore, we hold

that the evidence in the record, viewed in a light most favorable to the Commonwealth, is

sufficient to sustain McArthur’s conviction.

       Because our mandate is to decide cases on the best and narrowest grounds, see

Commonwealth v. White, 293 Va. 411, 419 (2017) (recognizing that “[t]he doctrine of judicial

restraint dictates that we decide cases ‘on the best and narrowest grounds available’” (quoting

                                                - 13 -
Commonwealth v. Swann, 290 Va. 194, 196 (2015))), we decline to address McArthur’s second

assignment of error regarding the admission of his entire criminal history at trial as this issue

does not impact double jeopardy protections, and may be renewed in a different context upon

remand should the Commonwealth choose to proceed to trial.

                                         III. CONCLUSION

       For the foregoing reasons, we reverse the ruling of the trial court and remand for

proceedings in accordance with this opinion.

                                                                            Reversed and remanded.




                                                - 14 -
