                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Decker, AtLee and Senior Judge Frank
              Argued by teleconference
UNPUBLISHED




              COMMONWEALTH OF VIRGINIA
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1603-15-1                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                 MARCH 11, 2016
              JEVON GLENN AUGUSTUS, SR.


                                  FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                              David W. Lannetti, Judge

                               Elizabeth C. Kiernan, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on briefs), for appellant.

                               London C. Crounse (Andrew Protogyrou; Protogyrou & Rigney,
                               PLC, on brief), for appellee.


                     This appeal arises from charges brought in the Circuit Court for the City of Norfolk

              (“trial court”) against Jevon Augustus, Sr. for possession of cocaine and obstruction of justice.

              Pursuant to Code §§ 19.2-398 and -400, the Commonwealth appeals a pretrial ruling granting in

              part Augustus’s motion to suppress. The trial court suppressed all evidence and statements,

              except for evidence of Augustus’s alleged obstruction of justice. In so ruling, the trial court

              concluded that law enforcement violated Augustus’s Fourth Amendment rights in stopping him,

              but that the obstruction of justice was a new and distinct crime. The Commonwealth assigns the

              following errors:

                     1. The trial court erred in finding that the police lacked a reasonable, articulable
                        suspicion that Augustus had been involved in a drug transaction.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       2. The trial court erred in finding that the police seized Augustus when they turned on
          their emergency equipment rather than when Augustus yielded to the police’s
          authority and that Augustus obeyed the signal to stop.

       3. The trial court erred in finding that the evidence of Augustus’s traffic infractions was
          inadmissible and that the police lacked a reasonable, articulable suspicion or probable
          cause to believe that Augustus had committed a traffic infraction. The court further
          erred by not finding that the search of Augustus would have been supported by the
          probable cause for these offenses.

       4. The trial court erred in finding that the police lacked a reasonable, articulable
          suspicion that Augustus had committed traffic infractions, thereby failing to consider
          that, under the totality of the circumstances, Augustus’s behavior established further
          cause to investigate Augustus and to justify a drug-dog sweep.

       5. The trial court erred in finding that the drugs and other evidence the police seized
          from Augustus pursuant to a valid arrest for obstruction of justice was “fruit of the
          poisonous tree.”

       6. The trial court erred in misapplying the so-called “new or distinct crime” doctrine to
          this case and in finding that, despite Augustus’s valid arrest, the evidence the police
          secured following that arrest was inadmissible.

       7. The trial court erred in suppressing the cocaine and other physical evidence the police
          seized pursuant to the arrest of Augustus and in suppressing the statements Augustus
          made following his stop and arrest.

       For the following reasons, we affirm.

                                        I. BACKGROUND

       On January 4, 2014, two investigators (McCarthy and Allison) from the Norfolk Vice and

Narcotics Division were parked in an unmarked police vehicle near the corner of Kincaid

Avenue and Aspin Street in the City of Norfolk. At approximately 11:38 p.m., they observed a

pick-up truck, driven by Augustus, pull over on the side of the road near an apartment complex.

An individual approached the truck, opened the truck’s passenger-side door, “leaned into the

vehicle for a very brief period of time,” shut the door, and “ran back towards where he came

from.” McCarthy and Allison could not see inside the cabin of the truck and could not determine

whether the individual who had approached the truck had anything in his hands before or after

reaching into the truck. At no time during the encounter with the individual did McCarthy or
                                               -2-
Allison observe Augustus move within the truck cabin or observe the individual and Augustus

pass anything between them.

       Augustus’s truck pulled away from the curb. McCarthy and Allison notified Investigator

R.W. Gillespie, who was in another unmarked car in the area, that they had observed a narcotics

transaction and requested assistance pulling Augustus’s truck over. Gillespie spotted the truck

and began following it. McCarthy and Allison’s vehicle soon caught up to Gillespie’s vehicle.

Gillespie activated his emergency equipment to initiate a stop based on the alleged drug

transaction, and the other police vehicle followed suit.

       The trial court, in a letter opinion, found the following with respect to what took place

after law enforcement activated their emergency signals:

               the truck sped up a little, but stayed under the posted speed limit;
               Augustus at one point appeared to “be almost standing up” behind
               the wheel; and the truck weaved several times within its lane.[1]
               Gillespie testified that the truck was “a full one of the really large,
               like dually-type pickup truck[s]”[2] and that when he observed it,
               the truck “filled up the entire lane almost.” He further testified
               that: Augustus’s actions after the emergency equipment was
               energized were not “outlandish”; the weaving was the extent of
               any sort of traffic violation; and his stop was based solely on the
               alleged drug transaction. Augustus stopped his truck less than two
               blocks after Gillespie activated his emergency equipment.

       Once Augustus pulled over, Gillespie and McCarthy approached the vehicle. Augustus

cracked open the truck’s driver’s side window to pass his driver’s license and registration to

Gillespie. Gillespie described Augustus as appearing nervous; he was breathing heavily, staring

straight ahead to avoid eye contact, and was “a little shaky.” McCarthy also stated that Augustus


       1
          The trial court expressly noted: “Although there was some testimony that the truck
touched or crossed the dividing line between opposing lanes of traffic, in light of the totality of
the testimony, the Court finds that the truck weaved only within its lane.”
       2
         The trial court explained: “A ‘dually truck’ is a truck that has a reinforced rear end with
dual rear wheels (i.e., four wheels on the rear axle), making it wider than a comparable truck
with only two rear wheels.”
                                                 -3-
seemed nervous, noting that his hands shook and he fidgeted with his phone. Augustus asked if

he could close the window because he was cold. At some point, he closed the window and began

making phone calls.

       At approximately 11:42 p.m., Allison called a K-9 unit to the scene. When it arrived, at

approximately 12:05 a.m., Gillespie asked Augustus to exit the truck. Augustus refused. Using

the K-9, an officer conducted the narcotics sweep around the exterior of the vehicle, with

Augustus still in his truck. The dog subsequently alerted on the truck’s driver-side door handle.

Again, Augustus was asked to exit the truck, and he refused. He stopped responding and stared

straight ahead. Augustus was informed that by not exiting the truck as instructed, he was

obstructing justice. The police did not inform Augustus why they pulled him over, nor did they

explain his ongoing detention.

       Once law enforcement determined that Augustus was not going to exit the truck

voluntarily, one investigator then broke the truck’s passenger-side window and unlocked the

passenger-side door. Law enforcement removed Augustus from the vehicle and placed him in

custody. McCarthy searched Augustus’s person and felt an object in the groin area. He

informed Augustus that he would be taken to the Police Operations Center (the “POC”), where

they would retrieve the item. At the POC, the object, which turned out to be cocaine, fell from

Augustus’s pants during the search.

       Augustus was charged with possession of cocaine and obstruction of justice. Augustus

filed a motion to suppress, which the trial court granted as to all evidence and statements

resulting from the stop and subsequent custodial search except for evidence related to Augustus’s

alleged obstruction of justice.




                                               -4-
                                     II. STANDARD OF REVIEW

       On appeal of an order granting a defendant’s motion to suppress, the Commonwealth

bears the burden to show that the ruling constituted reversible error. See Murphy v.

Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). Whether a warrantless seizure

violated the Fourth Amendment presents a mixed question of law and fact. Jones v.

Commonwealth, 279 Va. 521, 527, 690 S.E.2d 95, 99 (2010). Where, as here, the trial court

makes express factual findings, we defer to such findings so long as they are supported by

credible evidence. Satchell v. Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253, 256

(1995). We review de novo legal issues such as whether a particular set of facts provided

reasonable suspicion or probable cause for a search or seizure. See Brooks v. Commonwealth,

282 Va. 90, 94-95, 712 S.E.2d 464, 466 (2011); Commonwealth v. Benjamin, 28 Va. App. 548,

552-53, 507 S.E.2d 113, 115 (1998).

                       III. REASONABLE SUSPICION OF DRUG TRANSACTION

       The Commonwealth argues that the time of night, the character of the area, and the

observations of trained law enforcement officers together provided reasonable suspicion of a

narcotics transaction sufficient to justify a stop. We disagree.

               Under well-settled principles of law, police officers may stop a
               person for the purpose of investigating possible criminal behavior
               even though no probable cause exists for an arrest. A stop is
               permissible so long as the officer has reasonable, articulable
               suspicion that criminal activity may be afoot. To establish
               reasonable suspicion, an officer must be able to articulate more
               than an unparticularized suspicion or “hunch” that criminal activity
               is afoot. The character of the location and the time at which a
               person is observed are relevant factors, but they do not supply a
               particularized and objective basis for suspecting criminal activity
               on the part of the particular person stopped.

McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 516 (2008) (citations omitted).

Here, investigators observed a truck pull up to a curb, saw an individual approach the

                                                -5-
passenger’s side, open the door, lean in briefly, shut the door, and then leave. The truck then

pulled away. Law enforcement could not see within the passenger compartment, did not see

anything change hands, and did not observe any hand-to-hand contact. No one saw the

pedestrian carrying anything before or after approaching the truck. The trial court’s factual

finding that it was not a “high crime” area was supported by the record.3

       The facts are similar to those in McCain v. Commonwealth, 275 Va. 546, 659 S.E.2d 512

(2008). In McCain, the defendant sought to suppress evidence obtained during a pat-down

search. Law enforcement suspected the defendant of drug activity after he went into a house, in

which law enforcement had recently conducted a controlled narcotics purchase, in a high crime

neighborhood. The defendant went inside the house briefly and returned to the passenger’s seat

in a vehicle parked outside. The police lawfully stopped the vehicle for a traffic infraction. The

Supreme Court held that the trial court erred in failing to suppress evidence found during a

pat-down of McCain, stating:

               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.

Id. at 553, 659 S.E.2d at 516. Unlike in McCain, Augustus was not clearly in a “high crime”

area. Furthermore, there is no evidence here of drug activity, much less recent drug activity, at

the specific apartment complex where Augustus stopped. Otherwise, the facts are quite similar.


       3
          The testimony that this was a “high crime” area was meager. Allison testified that, over
the course of his nine-year career, he had conducted some probable cause buys nearby, helped
execute two search warrants in the area, and arrested some people carrying narcotics who were
“coming from” that area. He also said a homicide occurred in the area “I believe within the last
several months” before the night in question. The trial court found this evidence insufficient to
classify the neighborhood as a “high crime” area.

                                               -6-
Although the investigators here certainly had some basis for suspecting drug activity, it

amounted to no more than an unparticularized suspicion or “hunch.” Accordingly, the trial court

did not err in finding that the police lacked a reasonable suspicion that the defendant had been

involved in a drug transaction.

                  IV. REASONABLE SUSPICION ARISING AFTER SIGNAL TO STOP

       The Commonwealth argues that, even if the evidence was insufficient to provide

reasonable suspicion based upon the drug transaction, reasonable suspicion of either eluding

(Code § 46.2-817) or recklessly failing to control the vehicle (Code § 46.2-853) justified the

stop.4 The Commonwealth advocates almost exclusively for eluding, arguing that reasonable

suspicion existed because Augustus, after the investigators activated their signals, sped up (even

though he did not exceed the speed limit), weaved within the lane, and traveled over

one-and-a-half blocks before pulling over. We disagree. Augustus’s actions did not provide

reasonable suspicion that, after the activation of the emergency signal, he drove “in a willful and

wanton disregard of such signal” or “attempt[ed] to escape or elude” as Code § 46.2-817

requires. His behavior could just as, if not more, reasonably be viewed as a startled reaction to

the lights and sirens, or an attempt to find a place to pull over. As the Commonwealth notes,

“[T]he determination of reasonable suspicion must be based on commonsense judgments and

inferences about human behavior,” Whitaker v. Commonwealth, 279 Va. 268, 275-76, 687

S.E.2d 733, 737 (2010) (alteration in original) (quoting Illinois v. Wardlow, 528 U.S. 119,

124-25 (2000)). None of the investigators had any suspicion, much less a reasonable one, that


       4
         The Commonwealth also argues that the trial court erred in concluding that Augustus
was seized as soon as law enforcement activated their emergency signals, as opposed to when he
pulled over. If this was error, Augustus’s actions between the signal activation and his pulling
over could provide alternative sources of reasonable suspicion or probable cause for the stop.
We assume without deciding that Augustus was not seized until he pulled over, because, as we
explain here, none of his intervening actions provided reasonable suspicion of criminal activity.

                                               -7-
Augustus was eluding, and the trial court found that “Augustus did nothing inconsistent with

submitting to the authority of law enforcement.”

       Although it is a closer question, the Commonwealth also fails to meet its burden to show

reasonable suspicion of reckless driving based upon the weaving and the observation that

Augustus was “almost standing up” at one point. In most cases, the question of reasonable

suspicion based on weaving or unusual behavior arises in the context of suspected impaired

driving. See, e.g., Freeman v. Commonwealth, 20 Va. App. 658, 661-62, 460 S.E.2d 261,

262-63 (1995) (reasonable suspicion of impairment when driver drove well below the speed

limit, in the center lane on a six-lane highway while cars passed on both sides, and weaved

within his lane over the course of a mile). Ongoing weaving within one’s lane can provide

reasonable suspicion to justify a stop, see Neal v. Commonwealth, 27 Va. App. 233, 239, 498

S.E.2d 422, 425 (1998) (reasonable suspicion of impairment existed when defendant weaved

within the lane between five and ten times over a distance of a half-mile), but the mere fact that a

driver weaves, even into another lane, does not necessarily render the stop lawful, see King v.

Commonwealth, 1995 Va. App. LEXIS 8, at *2 (Jan. 3, 1995) (no reasonable suspicion of

driving under the influence where defendant stopped for two seconds at a yield sign despite no

oncoming traffic and momentarily drifted across a lane divider).

       The investigators here witnessed Augustus weaving, without crossing the lane divider,

approximately three times5 over the course of less than two blocks. The weaving frequency is

less than that observed in Neal, but more than in King. Only Neal controls; King is, however,




       5
         Gillespie testified that Augustus swerved “more than once. It was several times. I just
don’t remember the exact number. I would say a few times. He just kept swerving maybe three
times, two, you know.”

                                               -8-
persuasive authority.6 The observed actions, at least in terms of the amount and duration of

weaving, here do not equal, let alone exceed, those in Neal. That Augustus was positioned

unusually in his vehicle does not alter the outcome. “Lawful conduct that the officer may

subjectively view as unusual is insufficient to generate a reasonable suspicion that the individual

is involved in criminal activity.” Harris v. Commonwealth, 276 Va. 689, 697, 668 S.E.2d 141,

147 (2008). Gillespie testified that Augustus’s actions after the emergency equipment was

energized were not “outlandish,” nor was his speed reckless or even unlawful. He noted that the

truck was large and was nearly as wide as the lane. He also stated that the weaving was the

extent of any sort of traffic violation.7 The trial court found that there was only an isolated

instance of mild weaving within a traffic lane over a very short distance. These facts, in addition

to the significant factual distinctions between this case and Neal and King (neither assessed

actions taken after law enforcement activated emergency signals, or discussed whether the

actions provided reasonable suspicion of reckless failure to control one’s vehicle), lead us to

conclude that law enforcement did not have reasonable suspicion of reckless driving to justify

the stop.8




        6
         “Unpublished opinions of this Court, while having no precedential value, are
nevertheless persuasive authority.” Otey v. Commonwealth, 61 Va. App. 346, 351 n.3, 735
S.E.2d 255, 258 n.3 (2012).
        7
          Although an officer’s subjective assessments of a defendant’s behavior are not
determinative vis-à-vis reasonable suspicion or probable cause, given the officer’s training and
experience, such assessments can be relevant. Cf. United States v. Williams, 945 F. Supp. 2d
665, 671 (E.D. Va. 2013) (noting that “a court must respect the training and expertise of police
officers” in their assessments of reasonable, particularized suspicion); United States v. Branch,
537 F.3d 328, 336-37 (4th Cir. 2008) (“[I]t is entirely appropriate for courts to credit ‘the
practical experience of officers who observe on a daily basis what transpires on the street.’”
(quoting United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993))).
        8
         In light of this holding, we do not reach the Commonwealth’s assignment of error
considering whether the drug-dog search was constitutional.
                                                -9-
                              V. EXCLUSIONARY RULE APPLICATION

       Concluding that law enforcement lacked reasonable suspicion for the stop does not end

our analysis, as evidence, even if illegally obtained, will only be suppressed if the exclusionary

rule applies. The Commonwealth argues that the trial court erred in suppressing the cocaine and

other physical evidence found after Augustus allegedly obstructed justice, because the “new and

distinct crime” exception to the exclusionary rule applies.

       Generally, “‘evidence obtained as a direct [or indirect] result of an unconstitutional

search or seizure is plainly subject to exclusion’ as fruit of the poisonous tree.” Echavarry v.

Commonwealth, 60 Va. App. 177, 185, 725 S.E.2d 151, 155 (2012) (alteration in original)

(quoting Segura v. United States, 468 U.S. 796, 804 (1984)). “The exclusionary rule, created

with the intent of deterring police misconduct, ‘operates “as a judicially created remedy designed

to safeguard Fourth Amendment rights generally through its deterrent effect, rather than [to

protect] a personal constitutional right of the party accused.”’” Brown v. City of Danville, 44

Va. App. 586, 606, 606 S.E.2d 523, 533-34 (2004) (alteration in original) (quoting United States

v. Leon, 468 U.S. 897, 906 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348

(1974))).

               The deterrent purpose of the exclusionary rule necessarily assumes
               that the police have engaged in willful, or at the very least
               negligent, conduct which has deprived the defendant of some right.
               By refusing to admit evidence gained as a result of such conduct,
               the courts hope to instill in those particular investigating officers,
               or in their future counterparts, a greater degree of care toward the
               rights of an accused.

Adams v. Commonwealth, 275 Va. 260, 272, 657 S.E.2d 87, 94 (2008) (quoting United States v.

Peltier, 422 U.S. 531, 539 (1975)).

       Deterring willful or negligent police misconduct is not the court’s only consideration.

Determining whether particular evidence is “‘tainted’ or is ‘fruit’ of a prior illegality” also

                                                - 10 -
requires a court to examine “whether the challenged evidence was ‘come at by exploitation of

[the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary

taint.’” Segura v. United States, 468 U.S. 796, 804 (1984) (second alteration in original)

(quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)); see also Echavarry, 60 Va. App.

at 185, 725 S.E.2d at 155-56. Under the “new and distinct crime” exception, “if a person

engages in new and distinct criminal acts in response to unlawful police conduct, the

exclusionary rule does not apply, and evidence of the events constituting the new criminal

activity, including testimony describing the defendant’s own actions, is admissible.” Brown v.

City of Danville, 44 Va. App. 586, 600, 606 S.E.2d 523, 530 (2004).

       The Commonwealth argues, essentially, that when a defendant commits a crime during

the course of an unlawful stop, a court may not suppress any evidence found after the intervening

crime. Virginia appellate courts have only applied this exception to the exclusionary rule to

allow evidence of the new crime. See, e.g., Foltz v. Commonwealth, 58 Va. App. 107, 117, 708

S.E.2d 914, 919 (2011) (en banc) (affirming admission of eyewitness testimony of police officer

who witnessed assault), aff’d on other grounds, 284 Va. 467, 732 S.E.2d 4 (2012); Testa v.

Commonwealth, 55 Va. App. 275, 285 S.E.2d 2013 (2009) (affirming conviction for obstruction

of justice that occurred during allegedly unlawful police entry); Gray v. Commonwealth, 50

Va. App. 513, 516-17, 651 S.E.2d 400, 402 (2007) (affirming conviction for eluding charge

“[r]egardless of whether the initial attempted detention was lawful”). We find no support in the

existing authority for the Commonwealth’s interpretation of the “new and existing crime”

doctrine as applied to evidence discovered during a search conducted incident to arrest for an

intervening crime, at least as applied to the facts before us.

       We are unpersuaded that the two Fourth Circuit cases cited by the Commonwealth

support its position: United States v. Sprinkle, 106 F.3d 613 (4th Cir. 1997), and United States

                                                - 11 -
v. Gaines, 668 F.3d 170 (4th Cir. 2012). In Sprinkle, the Fourth Circuit denied a motion to

suppress and convicted Sprinkle of possession of a firearm as a violent felon, when, after an

illegal stop, he pulled out a gun and fired at the police. We recognize that the language in this

case used broad language describing the new and distinct crime exception to the exclusionary

rule by stating, “Because the arrest for the new, distinct crime is lawful, evidence seized in a

search incident to that lawful arrest is admissible.” Sprinkle, 106 F.3d at 619. In Gaines,

however, the Fourth Circuit limited this language and granted a motion to suppress the

challenged evidence even though it was seized after the defendant’s intervening crime.

Specifically, the Court held that the causal chain between the unlawful search and the evidence

was unaffected by the suspect’s struggle with police because his firearm was discovered

beforehand.

        We hold that the trial court did not err by applying the exclusionary rule to the challenged

evidence given the lack of authority supporting the contention that a “new and distinct crime,”

much less a non-violent or non-threatening crime, renders all evidence discovered during a

search incident to the valid arrest admissible. See Brown, 44 Va. App. at 600, 606 S.E.2d at 530

(stating an intervening crime renders “evidence of the events constituting the new criminal

activity” admissible (emphasis added)); see also Jones v. State, 745 A.2d 856, 872 (Del. 1999)

(reversing denial of suppression motion where evidence was seized after the defendant resisted

an unlawful arrest, noting that “the crime of resisting an illegal arrest does not necessarily carry

with it the right to justify any search incident to an actual arrest for the crime of resisting an

illegal arrest”); State v. Beauchesne, 868 A.2d 972, 983-84 (N.H. 2005) (holding that cocaine

found during the search incident to arrest should have been suppressed after the police seized the

defendant without reasonable suspicion and he resisted arrest).




                                                 - 12 -
                                        VI. CONCLUSION

       For the foregoing reasons, we affirm the trial court’s ruling on Augustus’s motion to

suppress and remand the case for further consideration consistent with this opinion.

                                                                                       Affirmed.




                                              - 13 -
