                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff,* Judges Chafin and Decker
UNPUBLISHED


              Argued at Richmond, Virginia

              TYRON GILLIAM

              v.     Record No. 0226-14-1                                  MEMORANDUM OPINION** BY
                                                                            CHIEF JUDGE GLEN A. HUFF
              COMMONWEALTH OF VIRGINIA                                          JANUARY 27, 2015


                                 FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                               Bonnie L. Jones, Judge

                               F. Daniel Mazzio, Assistant Public Defender (Office of the Public
                               Defender, on brief), for appellant.

                               Leah A. Darron, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Tyron Gilliam (“appellant”) appeals his conviction for attempted breaking and entering,

              in violation of Code §§ 18.2-26 and 18.2-91. Appellant entered a conditional guilty plea in the

              Circuit Court for the City of Hampton (“trial court”) and was sentenced to ten years’

              incarceration with seven years suspended. On appeal, appellant asserts that the trial court erred

              in denying appellant’s motion to suppress because the officer lacked reasonable suspicion as

              required for an investigative detention and, therefore, any statements made by the defendant

              while detained should be suppressed. For the following reasons, this Court affirms the

              appellant’s convictions.




                     *
                         On January 1, 2015, Judge Huff succeeded Judge Felton as chief judge
                     **
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                             I. BACKGROUND

        On appeal, “‘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.’”

Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

        On January 16, 2013, Officer Neal (“Neal”) of the Hampton Police Division responded to a

tip of a potential burglary in progress at a residence in Hampton, Virginia. The tip indicated that

“two unknown black males” wearing black clothing were “attempting to break into a residence at

the corner” of the reported address. As Officer Neal approached the area in her patrol car, she

“observed two males wearing [the] clothing which was described” in the tip.

        While still in her patrol car, Neal saw one of the men, later identified as appellant, walking

across the side yard, coming from the back of the house about 20 feet away from the home. Upon

seeing Neal, appellant “[sped] up his walk and look[ed] around as if he was going to flee the area.”

Additionally, Neal noticed appellant “picked up on his walk” and began “looking and scanning the

area with his eyes.” Once appellant reached the middle of the driveway, Neal “got out of the car

and approached [appellant].” Neal “placed [appellant] in handcuffs” while another officer

confirmed that there was damage to the rear door of the home. Neal placed appellant in the patrol

car until a detective arrived. During his detention, appellant answered Neal’s questions regarding

the incident.

        At trial, appellant argued that his detention was unlawful and his statements should have

been suppressed. Specifically, appellant stated

                our argument would be that the investigative detention was unlawful,
                and, as a result, any statements made by [appellant] following that
                are inadmissible, and we’re asking the Court to suppress them this
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                afternoon . . . . The officer got a call that there were two males
                potentially involved in a crime. Black males wearing dark colored
                clothing. Not even specific information about who these individuals
                were . . . . He was on the grass right near the sidewalk which is a
                public area, Your Honor. It’s not unusual to have someone walking
                in the grass by the sidewalk.

In response, the Commonwealth argued the detention was lawful because the officer corroborated

the tip in that appellant was in the same location as the burglary, he matched the physical

description, and evidence established “his furtive movements and increasing the speed as he was

walking.”

        After hearing both arguments, the trial court denied appellant’s motion to suppress. In

support of its ruling, the trial court explained

                I think the [c]ourt is required to look at the totality of the
                circumstances, and the totality of the circumstances is there was a
                description given of two black males in dark clothing. We have the
                officer’s description of the alleged perpetrator’s body language in
                which she described as his attempt to flee and furtive movements.
                We have his location in the yard where she describes as between the
                driveway and the sidewalk on the grass, which I consider the
                curtilage, and the information that there was a crime in progress. So,
                based on the totality of the circumstance and all of these fact
                situations, I do find that the motion to suppress should be denied.

This appeal followed.

                                         A. Standard of Review

        “When reviewing a trial court’s denial of a motion to suppress, ‘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.’” Jones v. Commonwealth, 53 Va. App. 171, 176, 670 S.E.2d 31, 33

(2008) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). “The burden is on the

defendant to show that the denial of his suppression motion, when the evidence is considered in



                                                   -3-
the light most favorable to the Commonwealth, was reversible error.” Id. (citing Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).

       An appellant’s claim that “he was seized in violation of the Fourth Amendment presents a

mixed question of law and fact that we review de novo on appeal.” Harris v. Commonwealth,

276 Va. 689, 694, 668 S.E.2d 141, 145 (2008) (emphasis added) (citing Murphy v.

Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002)). “In making such

determination, we give deference to the factual findings of the [trial court], but we independently

determine whether the manner in which the evidence was obtained meets the requirements of the

Fourth Amendment.” Id. (citing Bolden v. Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701,

704 (2002)).

                                        B. Motion to Suppress

       On appeal, appellant asserts that the trial court erred in denying appellant’s motion to

suppress because Neal lacked the reasonable suspicion necessary for an investigative detention

and any statements made by appellant while detained should be suppressed. Specifically,

appellant contends that Neal did not have reasonable suspicion based on specific and articulable

facts and, therefore, the detention was unlawful and unreasonable under the Fourth Amendment.

The Commonwealth responds that there was enough cause for an officer to perform an

investigatory stop under the totality of the circumstances.

       “The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV. An

officer, however, may “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)). While the applicable standard is less than



                                                -4-
probable cause, “[t]he officer’s suspicion must be based on more than just a guess or a hunch.”

Smith v. Commonwealth, 12 Va. App. 1100, 1102-03, 407 S.E.2d 49, 51 (1998).

       “In determining if there is sufficient cause to justify an investigatory stop and subsequent

frisk, we must look to the totality of the circumstances.” Jones, 53 Va. App. at 177, 670 S.E.2d

at 34 (citing United States v. Cortez, 449 U.S. 411, 417 (1981)). Moreover, this Court “must

apply objective standards in determining whether the requisite degree of suspicion exists, taking

into account that ‘trained law enforcement officers may be able to perceive and articulate

meaning in given conduct which would be wholly innocent to the untrained observer.’”

Castaneda v. Commonwealth, 7 Va. App. 574, 580, 376 S.E.2d 82, 85 (1989) (en banc) (quoting

United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982)). In making its determination, this

Court must

               view those facts objectively through the eyes of a reasonable police
               officer with the knowledge, training, and experience of the
               investigating officer. Based upon that objective assessment courts
               must determine whether the officer could have entertained an
               articulable and reasonable suspicion that the defendant was
               involved in unlawful activity.

Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128 (1989) (citing

Zimmerman v. Commonwealth, 234 Va. 608, 612, 363 S.E.2d 708, 709 (1988)).

       In the current matter, Neal received an anonymous tip that “two unknown black males”

wearing black clothing were “attempting to break into a residence at the corner” of 347 Grant

Circle. Upon approaching the residence, Neal observed appellant and another individual, who both

matched the description. Moreover, Neal indicated that appellant and the other suspect were

walking across the side yard from the back of the house where the breaking and entering occurred.

A suspect’s unauthorized presence on the premises of a suspected burglary provides reasonable

suspicion. See Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981).

                                               -5-
Furthermore, after driving toward appellant in the patrol car, Neal noticed appellant speed up his

walk and look around “as if he was going to flee the area.” While appellant never ran, Neal

indicated appellant “picked up on his walk” and began “looking and scanning the area with his

eyes.” See Wardlow, 528 U.S. at 124 (“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.”).

       Appellant argues that under the totality of the circumstances Neal did not have reasonable

suspicion to detain him. In support of his position, appellant relies on Jones, 53 Va. App. at 176,

670 S.E.2d at 33, and Harris, 276 Va. at 694, 668 S.E.2d at 145. Both of those cases, however,

are distinguishable from the current matter. In Jones, this Court determined that the officer did

not have a reasonable suspicion to detain the defendant after the defendant, who was standing in

a high crime area, briskly walked away from the officer to a townhouse. 53 Va. App. at 176, 670

S.E.2d at 33. This Court determined that defendant’s unprovoked flight and fact that the

encounter occurred in a high crime area did not amount to reasonable suspicion under the

circumstances. Id. Additionally, in Harris, the Supreme Court held that an officer did not have

reasonable suspicion to pull over a driver of an automobile that matched an anonymous tip for

driving under the influence because the officer did not witness any behavior that corroborated the

criminal activity alleged in the anonymous tip. 276 Va. at 697-98, 668 S.E.2d at 146-47. Rather,

the United States Supreme Court’s decisions in Terry, 392 U.S. 1,1 and Navarette v. California,




       1
          In Terry, the United States Supreme Court determined there was reasonable suspicion to
stop a defendant after the officer suspected two men to be casing a job or stick-up. 392 U.S. at
5-6. Specifically, the officer observed two men pacing back and forth in front of and glancing
into a store. Id. The officer observed the men pace in front of the store for ten to twelve minutes
before conducting the stop. Id. at 6.
                                                -6-
124 S. Ct. 1683 (2014),2 support the finding that, in the current matter, Neal possessed

reasonable suspicion to stop appellant.

       Unlike the previous decisions in Harris and Jones where the officer’s finding was only

based on an anonymous tip and furtive movements, the trial court in the current matter

considered three factors. Specifically, in determining there was reasonable suspicion that

criminal activity was afoot, the trial court recognized that Neal took into account appellant’s

location on the premises of the suspected breaking and entering, appellant’s subsequent furtive

movements, and that appellant matched the physical description from the tip. Viewing these

facts objectively through the eyes of a reasonable police officer with the knowledge, training,

and experience of the investigating officer, Neal possessed articulable and reasonable suspicion

that the appellant was involved in unlawful activity. Accordingly, this Court finds that the trial

court did not err in denying appellant’s motion to suppress.

                                       III. CONCLUSION

       Based on the foregoing, this Court finds that the trial court did not err in denying

appellant’s motion to suppress.

                                                                                           Affirmed.




       2
          In Navarette, the United States Supreme Court determined an officer had reasonable
suspicion to stop a vehicle under suspicion of drunk driving after the officer received a tip that
matched the description of a vehicle that a 911 caller had recently reported as running her off the
road. 124 S. Ct. at 1686-87. In reaching its decision, the United States Supreme Court
considered the 911 caller’s report that she had been run off the road, the short amount of time
between the call and the incident, and her usage of the 911 system as indicia of the tip’s
reliability. Id. at 1689-92.
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