                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia


KENNETH EUGENE BRITT
                                          MEMORANDUM OPINION * BY
v.   Record No. 2795-99-1                  JUDGE LARRY G. ELDER
                                             DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                   Lydia Calvert Taylor, Judge

          Kevin M. Diamonstein for appellant

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Kenneth Eugene Britt (appellant) appeals from his

conviction for possession of cocaine in violation of Code

§ 18.2-250, entered on his conditional plea of guilty.    On

appeal, he contends the trial court erroneously denied his

motion to suppress because the officer had neither reasonable

suspicion to detain him nor probable cause to justify the search

in which he found cocaine on appellant's person.    We hold the

officer had first reasonable suspicion to question and then

probable cause to arrest appellant for trespassing and that the

search which yielded the cocaine was a valid search incident to



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
appellant's arrest for trespassing.     Therefore, we affirm

appellant's conviction.

        At a hearing on a defendant's motion to suppress, the

Commonwealth has the burden of proving the challenged action did

not violate the defendant's constitutional rights.      See Simmons

v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989).

On appeal, we view the evidence in the light most favorable to

the prevailing party, here the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom.      See

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d

47, 48 (1991).    "[W]e 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 v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d

911 (1996)).    However, we review de novo the trial court's

application of defined legal standards such as reasonable

suspicion and probable cause to the particular facts of the

case.     See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.

        "Fourth Amendment jurisprudence recognizes three categories

of police-citizen confrontations:      (1) consensual encounters,

(2) brief, minimally intrusive investigatory detentions based


                               - 2 -
upon specific, articulable facts, commonly referred to as Terry

stops, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20

L. Ed. 2d 889 (1968), 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).   In order to

justify a Terry stop, "an officer must have a 'reasonable and

articulable suspicion of criminal activity on the part of the

defendant . . . .'"   Hatcher v. Commonwealth, 14 Va. App. 487,

490, 419 S.E.2d 256, 258 (1992) (quoting Commonwealth v.

Holloway, 9 Va. App. 11, 15, 384 S.E.2d 99, 101 (1989)).     An

officer who develops reasonable suspicion that criminal activity

is occurring may stop a person "'in order to identify him, to

question him briefly, or to detain him briefly, while attempting

to obtain additional information'" in order to confirm or dispel

his suspicions.   DePriest v. Commonwealth, 4 Va. App. 577, 585,

359 S.E.2d 540, 544 (1987) (quoting Hayes v. Florida, 470 U.S.

811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985)).

"Probable cause exists where 'the facts and circumstances within

[the arresting officers'] knowledge and of which they had

reasonably trustworthy information [are] sufficient in

themselves to warrant a man of reasonable caution in the belief

that' an offense has been or is being committed."   Brinegar v.

United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93

L. Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S.


                             - 3 -
132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543 (1925)).   Our review

of the existence of reasonable suspicion and probable cause

involves application of an objective rather than subjective

standard.   See, e.g., Whren v. United States, 517 U.S. 806,

812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996).

     Here, assuming without deciding the encounter between

Officer Donnelly and appellant was not consensual, the evidence

establishes that Donnelly had reasonable suspicion to detain

appellant briefly in order to determine whether he was

trespassing.   The management of the private apartment complex

where Donnelly encountered appellant had experienced repeated

problems with trespassing and drug trafficking on their premises

and had made a written request to the Norfolk Police Department

to help them address the problem by arresting any violators.     At

least five months earlier, the management had posted prominent

"No Trespassing" signs in a location visible to anyone

traversing the private property between the two buildings.

     When Officer Donnelly saw appellant on the property between

the two buildings, he knew appellant did not live there.   As a

result, he had reasonable suspicion to believe appellant was

trespassing, and he was entitled to detain appellant briefly to

determine whether he was, in fact, a trespasser or a legitimate

guest on the premises.   When appellant told Donnelly he was

visiting the woman with whom he was standing, Maria Elliot, and


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refused to answer any of Donnelly's other questions, Donnelly

had probable cause to arrest appellant for trespassing because

he recognized Elliot and knew she also did not reside in the

apartment complex.   Thus, Donnelly quickly developed probable

cause to arrest appellant for trespassing, and he was entitled

to search appellant pursuant to that arrest.   See, e.g.,

DePriest, 4 Va. App. at 583, 359 S.E.2d at 543.

     Officer Donnelly initially intended to issue appellant a

summons for the trespassing offense and would not have been

entitled to search appellant incident to that summons in the

absence of proof of a need to disarm appellant or preserve

evidence of the violation for which the summons was issued.      See

Lovelace v. Commonwealth, 258 Va. 588, 594, 522 S.E.2d 856, 859

(1999) (citing Knowles v. Iowa, 525 U.S. 113, 115-18, 119 S. Ct.

484, 486-88, 142 L. Ed. 2d 492 (1998)).   However, the trial

court found credible Officer Donnelly's testimony that he

subsequently determined to effect a full custodial arrest for

trespass because appellant said he had no identification with

him and because departmental policy required Donnelly to effect

a full custodial arrest under those circumstances.   Because

Donnelly did not discover appellant's identification until after

he had discovered cocaine in appellant's pocket, Donnelly's

actions in searching appellant pursuant to his custodial arrest

for trespassing were objectively reasonable under the Fourth


                             - 5 -
Amendment.   Therefore, the trial court did not err in denying

appellant's motion to suppress the fruits of the search

conducted incident to that arrest. 1

     For these reasons, we affirm appellant's conviction for

possession of cocaine.

                                                          Affirmed.




     1
       We need not decide whether any of Officer Donnelly's
observations prior to his discovery of cocaine in appellant's
pocket provided reasonable suspicion or probable cause to
believe appellant had committed a drug offense.


                             - 6 -
Benton, J., dissenting.

     A police officer may detain a person in a "Terry stop" only

if the officer possesses articulable facts supporting a

reasonable suspicion that the person has committed a criminal

offense, is engaging in a criminal offense, or is about to

engage in a criminal offense.   See Terry v. Ohio, 392 U.S. 1,

21-22 (1968).   "[A] reasonable suspicion [is one, which is]

based on objective facts, that the individual is involved in

criminal activity."   Brown v. Texas, 443 U.S. 47, 51 (1979).

The officer in this case had no objective facts on which to

conclude that Kenneth E. Britt had trespassed or was about to

trespass.

     Code § 18.2-119 provides in pertinent part that "[i]f any

person without authority of law goes upon or remains upon the

lands, buildings or premises of another, or any portion or area

thereof, after having been forbidden to do so, either orally or

in writing . . . or after having been forbidden to do so by a

sign or signs posted . . . shall be guilty of a Class 1

misdemeanor."   The evidence proved the officer had no

information that Britt had been forbidden, either orally or in

writing, to walk upon the walkway that led from the public

sidewalk toward the apartments, the parking lot, and beyond.

Thus, the posted signs provide the only possible justification

for stopping Britt.


                             - 7 -
     The evidence in this case further proved that the walkway

intersected and was perpendicular to the public sidewalk in an

urban area.   Parallel to each side of the walkway, at an

undescribed distance from the walkway, were apartment buildings.

On each apartment building was "the standard sign,

no-trespassing signs."   The evidence does not otherwise

establish the content of the signs and clearly does not prove

that the signs forbad persons from traversing the walkway.

Although the evidence established that the walkway on which

Britt was standing was not the public sidewalk, it was a

location open to the public.    No evidence proved that the sign

on the building or any other sign informed Britt that he was not

privileged to stand or walk on the walkway. 2   See Jones v.

Commonwealth, 18 Va. App. 229, 232, 443 S.E.2d 189, 191 (1994);

Reed v. Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d 274, 278

(1988) (noting that the case law in Virginia has uniformly

construed the statutory offense of criminal trespass to require

a willful trespass).




     2
       Although I recognize that the Terry standard is far short
of the requirement of proof beyond a reasonable doubt to convict
of a criminal offense, I believe it is significant to note that
the record establishes Britt was acquitted of the charge of
trespass. Certainly, if the evidence in the failed criminal
prosecution was lacking in proof of the content of the "No
Trespassing" sign as in this case, no cause arose to stop Britt
or to prosecute him for trespass.


                               - 8 -
     To have a reasonable, articulable suspicion of trespass, a

police officer must observe something more than a person

standing on a walkway that is generally and ostensibly open to

the use of the public.   The officer did not observe Britt leave

or approach any of the buildings.    Terry does not allow police

officers to detain persons at random to inquire whether they

have broken the law simply by leaving the public sidewalk to

enter upon a privately owned walkway in a public location.

     The United States Supreme Court stated the following in a

similar context:

             The flaw in the State's case is that none
          of the circumstances preceding the officers'
          detention of appellant justified a
          reasonable suspicion that he was involved in
          criminal conduct. [The officer] . . .
          testified at appellant's trial that the
          situation . . . "looked suspicious," but he
          was unable to point to any facts supporting
          that conclusion. There is no indication in
          the record that it was unusual for people to
          be [on the walkway]. The fact that
          appellant was in a neighborhood frequented
          by drug users, standing alone, is not a
          basis for concluding that appellant himself
          was engaged in criminal conduct. In short,
          the appellant's activity was no different
          from the activity of other pedestrians in
          that neighborhood. When pressed, [the
          officer] . . . acknowledged that the only
          reason he stopped appellant was to ascertain
          [whether he was an invitee]. The record
          suggests an understandable desire to assert
          a police presence; however, that purpose
          does not negate Fourth Amendment guarantees.

             In the absence of any basis for
          suspecting appellant of misconduct, the
          balance between the public interest and

                             - 9 -
          appellant's right to personal security and
          privacy tilts in favor of freedom from
          police interference.

Brown, 443 U.S. at 52 (footnote omitted).

     Generally, government officials are barred by the Fourth

Amendment "from undertaking a search or seizure absent

individualized suspicion."     Chandler v. Miller, 520 U.S. 305,

308 (1997).   Absent proof that some sign barred persons from

using the right of way that abuts the public walkway, the

evidence fails to negate the premise that the walkway was a

location open to the public.    Thus, the evidence permits only

the conclusion that the officer acted pursuant to a general

scheme to stop anyone without particularized suspicion.

     The United States Supreme Court has "expressly identified

this 'right to remove from one place to another according to

inclination' as 'an attribute of personal liberty' protected by

the Constitution."   Chicago v. Morales, 527 U.S. 41, 53 (1999)

(quoting Williams v. Fears, 179 U.S. 270, 274 (1900)); see also

Papachristou v. Jacksonville, 405 U.S. 156, 164 (1972)).    To

permit a police officer to make a "Terry" detention because he

has a subjective belief, unsupported by objective facts, that an

inquiry may prove the person is not an invitee improperly

permits arbitrary and discriminatory state action.    This ruling

gives absolute discretion to police officers to detain on the

hunch of "trespass" any person who steps off the public


                               - 10 -
sidewalk.     Terry instructs, however, that a "hunch" is an

insufficient basis to detain a person.     See 392 U.S. at 27; see

also Moss v. Commonwealth, 7 Va. App. 305, 308-09, 373 S.E.2d

170, 172 (1988).    "[S]uch a standardless sweep [impermissibly]

allows policemen . . . to pursue their personal predilections."

Smith v. Goguen, 415 U.S. 566, 575 (1974).

     For these reasons, I would hold that the officer lacked a

reasonable basis to detain Britt, and I would reverse the

conviction.    I dissent.




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