                               COURT OF APPEALS OF VIRGINIA


Present: Judges Clements, Haley and Senior Judge Overton
Argued at Richmond, Virginia


DESMOND DARRYL HIGGS
                                                              MEMORANDUM OPINION* BY
v.     Record No. 1157-05-2                                   JUDGE JAMES W. HALEY, JR.
                                                                     MAY 16, 2006
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                  Daniel T. Balfour, Judge

                 William T. Linka (Richmond Criminal Law, on brief), for appellant.

                 Deana A. Malek, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General, on brief), for appellee.


       Desmond Darryl Higgs appeals from his conviction by bench trial of possession with

intent to distribute marijuana, in violation of Code § 18.2-248.1. He asserts the trial court erred

in denying his motion to suppress. We affirm.

                                                  I.

       Initially, we note that in determining whether or not the trial court properly denied

appellant’s motion to suppress, “we consider the evidence and all reasonable inferences flowing

from that evidence in the light most favorable to the Commonwealth, the prevailing party at

trial.” Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) (citing Bass v.

Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923-24 (2000)).




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                 II.

                                              FACTS

       On July 28, 2004, Henrico County Police Officer Burroughs and two other officers

responded to a call for service at the corner of Howard and Skelton Streets in the Glenwood

Farms apartment complex in Henrico County. The caller stated that five black males, one of

whom wore black jeans with plaid boxer shorts showing above the jeans, were selling narcotics

on the street corner. Officer Burroughs testified that upon his arrival, the males split into two

separate groups. One of these groups consisted of two men, one of whom fit the caller’s

description, who were “swiftly” walking away from the officers.

       Burroughs and the two other officers asked the two men to stop and walk back toward

them. Without a request to do so, the two men produced identification and presented it to one of

the officers. Burroughs testified that he “thought [that] to be odd, since that had never happened

to me before in my experience.” Burroughs described the men as nervous and testified that they

began backing away from the officers after handing over their IDs.

       The officers next asked the men whether or not they had any drugs or weapons on their

person. The men responded no. Burroughs testified that the officers next asked appellant to

consent to a pat down for drugs and weapons. He explained the rationale for this request as

follows:

               The area is a part of Glenwood Farms Apartments. It’s a very high
               crime area. We . . . frequently get calls there for narcotics
               violations, fights in progress, and firearms violations; where
               citizens will call in saying that they heard pop shots in the area.
               You know, I’ve worked myself a couple of shootings there on that
               same street.

Burroughs also testified that officers “had dealt with [one of the men] in the past in the same

area,” describing him as “a well known individual to us.” He also explained that “in [his]

experience and training . . . guns are also associated with drugs.”
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       After appellant denied the officers’ request, Buroughs informed him that he was going to

“pat down the outside of his clothes for weapons.” Appellant responded, “No, you can’t touch

me . . . . No, I gave you my ID. You can’t touch me.” Burroughs testified that appellant began

walking away and kept repeating the words “No, don’t touch me. You can’t touch me.”

       Burroughs approached appellant, and when he reached to within an arm’s length from

him, appellant began running away. Burroughs pursued appellant in “a brief foot chase.” He

finally tackled appellant in the backyard of a nearby house. Burroughs testified that when he

tackled appellant, appellant’s hands were underneath a car in the backyard of the house. He then

pulled appellant’s hands back “towards his body.” Burroughs testified, “Underneath where his

hands was, was a large baggie containing what I believed to be marijuana.”

       Appellant testified, “[the officer] told me he had a probable call on drugs and guns, and

he asked me could he pat me down. I told him no and passed him my ID . . . [and] stood right

there.” He admitted that when Burroughs approached him, he “started backing up from him.”

       The Commonwealth introduced into evidence a lab report, which confirmed the items

seized from appellant as seventeen small bags of marijuana. Appellant sought to suppress this

evidence. The trial court denied the motion, holding as follows:

              I think the thing that cinches it . . . is the totality . . . if you take
              down the high crime, which this addresses; taking down the fact
              that he’s nervous, which I don’t think is particularly strong,
              because I think all of us would be nervous; but the fact they
              scattered, when approached by police; they held out the licenses,
              which nobody objected was unusual to walk up and hold out your
              license right away; and that they had – one of five had been
              somewhat identified by the officers, before they had dealt with for
              drugs. I think all those things together are enough to create more
              than a hunch.

This appeal followed.




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                                             III.

                                        ANALYSIS

       “[I]n reviewing a trial court’s denial of a motion to suppress, ‘the burden is upon [the

appellant] to show that the ruling . . . constituted reversible error.’” Robinson v.

Commonwealth, 47 Va. App. 533, 544, 625 S.E.2d 651, 656 (2006) (en banc) (quoting McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (additional citation

omitted)). “In performing such analysis, 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, 25 Va. App. at 198, 487 S.E.2d at 261.

       As this Court has recognized, “Fourth Amendment jurisprudence recognizes three

categories of police-citizen confrontations: (1) consensual encounters, (2) brief, minimally

intrusive investigatory detentions, based upon specific, articulable facts, commonly referred to as

Terry stops, and (3) highly intrusive arrests and searches founded on probable cause.” Wechsler

v. Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995). “An encounter between a

law enforcement officer and a citizen in which the officer merely identifies himself and states

that he is conducting a narcotics investigation, without more, is not a seizure within the meaning

of the Fourth Amendment but is, instead, a consensual encounter.” McGee, 25 Va. App. at 199,

487 S.E.2d at 262. Likewise, “a police request made in a public place for a person to produce

some identification, by itself, generally does not constitute a Fourth Amendment seizure.”

McCain v. Commonwealth, 261 Va. 483, 491, 545 S.E.2d 541, 546 (2001) (citing Immigration

and Naturalization Service v. Delgado, 466 U.S. 210, 216 (1984)).

       We note, however, that a consensual encounter may evolve into a Terry stop. “In order

to justify the brief seizure of a person by such an investigatory stop, the police officer must ‘have

                                                    -4-
a reasonable suspicion, based on objective facts, that the individual is involved in criminal

activity.’” Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464-65 (2003)

(quoting Brown v. Texas, 443 U.S. 47, 51 (1979)). “To determine 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.” Id. (citation omitted).

          Here, the encounter between appellant and police began as a consensual encounter. The

officers approached the appellant and his companion and asked them to come back and speak

with them. The two men, without any request from the officers, produced identification and

handed the same to the officers. After appellant denied the officers’ request for a pat-down

search, Officer Burroughs moved toward appellant in order to pat down his outer clothing for

weapons. Appellant repeatedly stated “No, don’t touch me. You can’t touch me” and took

flight.

          In Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000), the United States Supreme Court

held the following:

                 Headlong flight -- wherever it occurs -- is the consummate act of
                 evasion: it is not necessarily indicative of wrongdoing, but it is
                 certainly suggestive of such. . . . Flight, by its very nature, is not
                 “going about one’s business”; in fact, it is just the opposite.
                 Allowing officers confronted with such flight to stop the fugitive
                 and investigate further is quite consistent with the individual’s
                 right to go about his business or to stay put and remain silent in the
                 face of police questioning.

See also Whitfield, 265 Va. at 362, 576 S.E.2d at 465 (citing Wardlow); Washington v.

Commonwealth, 29 Va. App. 5, 13, 509 S.E.2d 512, 516 (1999) (en banc) (“A single instance of

attempted flight or furtive behavior by a suspect is suggestive of guilt . . . .”).

          Moreover, in Wardlow, the Supreme Court recognized that “nervous, evasive behavior is

a pertinent factor in determining reasonable suspicion.” 528 U.S. at 124 (citation omitted).

Also, “officers are not required to ignore the relevant characteristics of a location in determining
                                                  -5-
whether the circumstances are sufficiently suspicious to warrant further investigation.

Accordingly, we have previously noted the fact that the stop occurred in a ‘high crime area’

among the relevant contextual considerations in a Terry analysis.” Id. (citation omitted).

       Therefore, we hold that appellant’s attempt to flee the scene gave Officer Burroughs

reasonable, articulable facts upon which “to stop [him] and investigate further.” Moreover, the

following also contribute to the totality of the circumstances in making such a determination:

appellant’s nervous behavior and the fact that all of the men scattered when the officers arrived;

the officer’s first-hand knowledge of the apartment complex as a high crime area; the officer’s

prior dealing with one of the suspects “for drugs”; and finally, the unusual action of appellant

producing identification without a request for the same.

       The trial court did not err in denying appellant’s motion to suppress, and, accordingly,

appellant’s conviction is affirmed.

                                                                                          Affirmed.




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