                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, McClanahan and Petty
Argued at Lexington, Virginia


JOSE CASTRO SANCHEZ
                                                               MEMORANDUM OPINION * BY
v.     Record No. 1572-09-3                                   JUDGE ROBERT J. HUMPHREYS
                                                                     JUNE 15, 2010
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                                 David A. Melesco, Judge

                 Jason S. Eisner, Assistant Public Defender (Office of the Public
                 Defender, on brief), for appellant.

                 Gregory W. Franklin, Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Jose Castro Sanchez (“Sanchez”) appeals his conviction, upon a conditional guilty plea,

for possession of cocaine, in violation of Code § 18.2-250. On appeal, Sanchez contends that the

trial court erred in denying his motion to suppress the cocaine seized from his person. Sanchez

argues that the police lacked reasonable suspicion to stop his vehicle and, thus, the cocaine

obtained from his person should have been suppressed as the product of an unlawful detention.

For the following reasons, we disagree with Sanchez and affirm. 1




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
          As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, we recite only those facts and incidents of
the proceedings as are necessary to the parties’ understanding of this appeal. We view those
facts “‘in the light most favorable to the prevailing party in the trial court,’” in this case the
Commonwealth. Parker v. Commonwealth, 275 Va. 150, 155, 654 S.E.2d 580, 583 (2008)
(quoting Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)).
       Our sole task in this appeal is to determine whether Officer Clark Gagnon (“Gagnon”)

had reasonable suspicion to believe that Sanchez was engaged in criminal activity at the time he

stopped Sanchez’s vehicle. Sanchez argues that Gagnon did not, and thus, he contends that the

evidence obtained as a result of the stop should be suppressed as “fruit of the poisonous tree.”

We disagree.

       “An appellant’s claim that evidence was seized in violation of the Fourth Amendment

‘presents a mixed question of law and fact that we review de novo on appeal.’” Winston v.

Commonwealth, 51 Va. App. 74, 78, 654 S.E.2d 340, 342 (2007) (quoting Wilson v.

Commonwealth, 45 Va. App. 193, 202-03, 609 S.E.2d 612, 616 (2005)). However, “‘[i]n

making such a determination, we give deference to the factual findings of the trial court and

independently determine whether the manner in which the evidence was obtained [violated] the

Fourth Amendment.’” Id. (alteration in original). The burden is on the defendant to show that

the denial of his suppression motion, when the evidence is considered in the light most favorable

to the Commonwealth, was reversible error. McCain v. Commonwealth, 261 Va. 483, 489-90,

545 S.E.2d 541, 545 (2001) (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729,

731 (1980)).

       Though the Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures,” U.S. Const.

amend. IV, “an officer may, consistent with the Fourth Amendment, conduct a brief,

investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is

afoot,” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30

(1968)). “A Terry stop must be supported by specific and articulable facts that would ‘warrant a

man of reasonable caution in the belief that the action taken was appropriate.’” United States v.

Blair, 524 F.3d 740, 750 (6th Cir. 2008) (quoting Terry, 392 U.S. at 21-22). “In other words,

                                                -2-
‘[t]he officer must be able to articulate more than an inchoate and unparticularized suspicion or

hunch of criminal activity.’” Id. (quoting Wardlow, 528 U.S. at 124).

       In determining whether or not reasonable suspicion existed for a Terry stop, we “must

look to the totality of the circumstances” of the particular case. United States v. McCoy, 513

F.3d 405, 411 (4th Cir.), cert. denied, 128 S. Ct. 2492 (2008). While “[t]he character of the

location and the time at which a person is observed are relevant factors” in this analysis, they

alone are insufficient to support a Terry stop. McCain v. Commonwealth, 275 Va. 546, 552, 659

S.E.2d 512, 516 (2008); see also Wardlow, 528 U.S. at 124 (“An individual’s presence in an area

of expected criminal activity, standing alone, is not enough to support a reasonable,

particularized suspicion that the person is committing a crime.”). That said, “officers are not

required to ignore the relevant characteristics of a location in determining whether the

circumstances are sufficiently suspicious to warrant further investigation . . . .” Wardlow, 528

U.S. at 124.

       We hold that the circumstances and actions observed by Officer James Simmons

(“Simmons”) in this case were sufficient to create a reasonable, articulable suspicion that

Sanchez was engaged in criminal activity. While on special assignment “doing some drug

reversals” in the City of Danville, Simmons observed Sanchez sitting on a retaining wall in the

front yard of a house notorious for its recent drug activity. Both Simmons and Gagnon testified

that this particular house had been the subject of numerous raids by the Danville Police

Department. 2 In fact, Gagnon testified that one week prior to this incident, their department

executed a search warrant on this house and recovered significant amounts of marijuana,


       2
         We find it significant that unlike most cases involving reasonable suspicion in which an
officer will simply characterize an area as a “high crime area,” here, Simmons and Gagnon
focused their testimony on the specific nature and history of criminal activity at this particular
house including illicit activities that had very recently transpired therein.

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cocaine, and firearms. It was in front of this house that Simmons observed Sanchez engage in

what appeared to be a hand-to-hand drug transaction. As he passed by, Simmons saw a man

leave the front yard of the residence and approach Sanchez. According to Simmons, the man

held his fist “palm down” and appeared to place something in Sanchez’s hand. The two men did

not appear to converse during their encounter, and Sanchez left in his vehicle immediately

thereafter. At that point, Simmons radioed Gagnon and gave a description of Sanchez’s vehicle.

Simmons stated that he had witnessed a hand-to-hand drug transaction and ordered Gagnon to

stop Sanchez’s vehicle. 3

       It is important to note that “reasonable suspicion ‘does not deal with hard certainties, but

with probabilities.’” McCoy, 513 F.3d at 413 (quoting United States v. Sokolow, 490 U.S. 1, 8

(1989)). Thus, “reasonable suspicion may exist even if each fact standing alone is susceptible to

an innocent explanation.” Id. at 413-14. While viewed separately, Simmons’s observations may

have been innocuous, we hold that, taken together, they satisfy the “low threshold” of reasonable

suspicion, which requires “‘considerably less than proof of wrongdoing by a preponderance of

the evidence . . . .’” Rudolph v. Commonwealth, 277 Va. 209, 213, __ S.E.2d __, __ (Lemons,

J., dissenting) (quoting Sokolow, 490 U.S. at 7), cert. denied, 130 S. Ct. 738 (2009).

       Sanchez points to McCain and Rudolph, in support of his contention that Gagnon lacked

reasonable suspicion to believe he was engaged in criminal activity. 4 Though we do not find


       3
          After Gagnon stopped Sanchez’s vehicle, he asked for permission to search both
Sanchez’s person and his vehicle. Sanchez agreed. Simmons arrived on scene while Gagnon
was searching the vehicle. Simmons approached Sanchez and asked for permission to search his
person. Again, Sanchez agreed. Sanchez then “hung his head” and handed Simmons a small
plastic baggie, which he clutched in his fist, containing .46 gram of cocaine. Sanchez was then
placed under arrest and charged with possession of cocaine.
       4
         Sanchez also points to Ross v. Commonwealth, 35 Va. App. 103, 542 S.E.2d 819
(2001), for the proposition that “the mere observation of a hand-to-hand transaction taking place
in an area known for drug activity, without more, [is] not sufficient to create reasonable
suspicion.” (Appellant’s Br. at 9). This is a misstatement of Ross and its holding. The
                                               -4-
either McCain or Rudolph to be controlling of the issue before this Court on appeal, an

examination of these cases is helpful to our analysis. In McCain, an officer in a high crime area

observed a vehicle, containing two occupants, parked on the street in front of a house. 275 Va. at

550, 659 S.E.2d at 514. The officer watched the two occupants walk up to the house and, in less

than a minute, return to the vehicle. Id. The officer was familiar with this particular house

because he was involved in a controlled buy at that location months earlier. Id. The officer

stopped the vehicle for a minor traffic violation. Id. McCain was a passenger. Id. Another

officer arrived and conducted a pat-down search of McCain against his wishes and discovered a

weapon. Id. at 551, 659 S.E.2d at 515. In reversing McCain’s convictions, the Supreme Court

of Virginia held that:

               McCain’s brief presence at a house the officer associated with drug
               activity months prior does not support a reasonable inference of
               criminal activity. The record does not contain any evidence
               concerning the purpose of McCain’s visit or any suspicious
               behavior during the visit. A person’s Fourth Amendment rights
               are not lessened simply because he or she happens to live or travel
               in a “high crime” area. Despite the neighborhood, the activity
               Worsham observed on Sublett’s Alley was not sufficient to stop
               McCain because of a reasonable suspicion of criminal activity.

Id. at 553, 659 S.E.2d at 516 (emphasis added).

       In Rudolph, an officer was patrolling a shopping center that had been the subject of a

number of burglaries and robberies. 277 Va. at 209, __ S.E.2d at __. The officer observed a

vehicle parked in the rear of a gas station “located on an outparcel of the shopping center.” Id.

The officer believed the vehicle’s location was unusual since there were a number of

unoccupied, marked parking spaces on that side of the station. Id. The vehicle had two



dispositive issue in Ross was whether the officer had probable cause to arrest the defendant. In
fact, both parties agreed in Ross that the officer possessed reasonable suspicion to stop the
defendant. However, because the officer’s search of the defendant exceeded the scope of Terry,
this Court concluded that it had to be supported by probable cause. Id. at 106 n.1, 542 S.E.2d at
820 n.1.
                                                 -5-
occupants who, according to the officer, were “moving around in the vehicle” and “appeared to

be looking or reaching for something.” Id. at 210, __ S.E.2d at __. At that point, the officer

decided to “make sure everything was fine.” Id. As the officer approached to investigate, the

vehicle drove away. The officer stopped the vehicle and discovered that Rudolph was the driver.

During the stop, the officer recovered marijuana “at the center floor divider where Rudolph’s

right leg had been.” Id. Again, the Supreme Court of Virginia vacated Rudolph’s conviction,

holding that the officer lacked reasonable suspicion to believe that criminal activity was afoot.

Id. at 211, __ S.E.2d at __. The Supreme Court explained:

                Viewing the totality of the circumstances objectively, even though
                it was 8:00 p.m. and there had been robberies and burglaries in the
                area, the circumstances did not supply a particularized and
                objective basis to suspect that Rudolph’s observed behavior was a
                precursor to a break-in, robbery, or any other criminal activity on
                his part.

Id.

        We find the facts of McCain and Rudolph easily distinguishable from the facts of this

case. In contrast to McCain, Simmons observed Sanchez sitting in front of a house associated

with recent drug activity. As both Simmons and Gagnon testified, the Danville Police

Department had conducted numerous raids on the house, one of which occurred just a week

earlier. In addition, Simmons observed Sanchez engage in what appeared to be a hand-to-hand

drug transaction in the front yard of the residence. Unlike in McCain and Rudolph, Simmons’s

observations supplied him with “a particularized and objective basis to suspect that [Sanchez’s]

observed behavior was a precursor to . . . criminal activity . . . .” Id.

        Sanchez also points to Kidd v. Commonwealth, 38 Va. App. 433, 565 S.E.2d 337 (2002),

in support of his argument. In Kidd, an officer observed Kidd engage in a number of

hand-to-hand transactions on the street. Id. at 440, 565 S.E.2d at 340. Though the officer was

unable to identify the items exchanged, he believed he had witnessed a possible drug transaction
                                                 -6-
and radioed for backup. Id. “Approximately five seconds later,” the officer’s backup arrived,

and together they approached Kidd to investigate. Id. As the officers approached, they observed

“over hundreds” of shell casings and empty shotgun shells on the ground “near where Kidd was

standing.” Id. at 440, 565 S.E.2d at 340-41. In addition, one of the officers observed Kidd hand

an unidentified man a “large wad of money.” Id. at 441, 565 S.E.2d at 341. Ultimately, the

officers detained Kidd and frisked him for weapons, discovering 36 individual baggies of

cocaine. Id. This Court affirmed Kidd’s conviction, holding that the officers had reasonable

suspicion to believe Kidd was engaged in criminal activity. Id. at 443, 565 S.E.2d at 342.

               Here, it is clear that Officer Cary had sufficient reasonable
               suspicion that criminal activity was afoot to support a lawful
               detention of Kidd. Moreover, contrary to Kidd’s argument, the
               fact that Hannah did not see and could not identify the items that
               were exchanged in the hand-to-hand transactions he observed,
               does not preclude a finding of reasonable suspicion under these
               circumstances.

Id. (emphasis added).

       Essentially, Sanchez argues from the negative, asserting that because this Court found

that reasonable suspicion existed in Kidd and because the circumstances of this case do not rise

to the level of Kidd, reasonable suspicion did not exist in this case. However, contrary to

Sanchez’s contention, Kidd did not establish a bright-line rule or minimum threshold for the

existence of reasonable suspicion. As the United States Supreme Court has observed, “the

reasonable-suspicion determination is such a multi-faceted, fact-intensive inquiry, ‘one

determination will seldom be a useful precedent for another.’” McCoy, 513 F.3d at 412 n.4

(quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)) (emphasis added). Thus, each case




                                               -7-
must be assessed on its own facts, and in this case, we hold that the stop of Sanchez was

supported by reasonable suspicion.

                                                                                        Affirmed.




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