                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 3013-00-2         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                MAY 29, 2001
JAMES CHARLES DUNIGAN


            FROM THE CIRCUIT COURT OF FREDERICK COUNTY
                      John R. Prosser, Judge

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellant.

          Roger A. Inger (Massie, Inger & Iden, P.C.,
          on brief), for appellee.


     James Charles Dunigan (defendant) was indicted for driving

after having been declared an habitual offender, in violation of

Code § 46.2-357, driving while under the influence of alcohol, in

violation of Code § 18.2-266, and unreasonable refusal to submit

to a breath test, in violation of Code § 18.2-268.3.     Defendant

filed a motion to suppress the evidence from the traffic stop on

the ground that the police lacked reasonable articulable suspicion

to stop the vehicle.    The trial court granted the suppression

motion, and the Commonwealth appeals that ruling.      We reverse the

trial court's ruling.


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

     On the evening of October 16, 1999 at approximately

10:00 p.m., Deputy Pat Grim (Grim) of the Frederick County

Sheriff's Office was on patrol in the parking lot of Delco Plaza.

A security officer from the Belle Star Restaurant approached Grim

and pointed out three men who were walking toward a van in the

parking lot.   He told Grim that he believed the men were too

intoxicated to drive.   Grim approached the three men and spoke

with them.   Grim determined that they had been drinking.   The men

agreed not to drive, to go to Waffle House to get something to eat

and to call someone to come and "get them."

     An hour later Grim returned to the parking lot and noticed

the same van driving toward him.    When the van got close enough

for the driver and Grim to make eye contact, the van made a 45

degree turn in front of Grim, pulled up to the curb of the parking

lot and "the driver got out and ran."   Grim did not give chase but

put out a radio broadcast of the driver's description.   Defendant

and another passenger remained in the van and spoke with Grim.

Grim took the two men back to the Waffle House.   Grim observed the

defendant and the other man for about fifteen minutes and noticed

that they were still "intoxicated too much to drive."

     Shortly before midnight Grim met with and spoke to Trooper

Reginald Hoelen (Hoelen) of the Virginia State Police.   Grim

pointed out the van, which was about 200 yards away, and told

Hoelen, "[i]f you see that van later, the guy is probably

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intoxicated because he bailed out and ran."    Grim informed Hoelen

that he believed "that the original driver was probably hiding

somewhere waiting for the police to kind of disappear and come

back and get his van," since that happens often if the vehicle is

not towed.

        At approximately "1:10/1:15, . . . an hour and a half or

hour and forty-five minutes later," Hoelen returned to the area

and saw that the van was gone.    Hoelen drove toward Front Royal

searching for the van.    Just before Airport Road, Hoelen saw the

van and paced the vehicle at 46 miles per hour in a 55 mile per

hour zone.    The van appeared "to be very tenuous or cautious

about everything they did."    The van turned onto Papermill Road

and pulled off the road next to a cemetary.    There were no

houses or open businesses nearby.    Hoelen activated his

emergency equipment as he pulled to the side of the road.      The

defendant got out of the driver's side of the van.     Hoelen asked

him for his driver's license and registration.     Defendant

admitted that he was driving on a restricted license and was

arrested.

        Hoelen testified that driving 46 miles per hour in a 55

mile per hour zone is unusual when there is no one else on the

road and that it often is an indication of intoxication.

Defendant filed a motion to suppress, contending the officer

lacked reasonable articulable suspicion to initiate the traffic

stop.    The trial court found that "the Trooper had plenty of

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cause or reasonable, articulable suspicion to fall in behind the

van and follow it and observe it and keep it under surveillance"

but that Hoelen lacked reasonable, articulable suspicion to stop

the van because it was driven in a lawful manner.    The

Commonwealth appeals that ruling.

                                  II.

     In reviewing the trial court's ruling on a motion to

suppress, we consider the evidence in the light most favorable

to the prevailing party below, the defendant, granting to that

evidence all reasonable inferences, and the trial court's

decision will not be disturbed unless it is plainly wrong or

without evidence to support it.     See Miller v. Commonwealth, 16

Va. App. 977, 979, 434 S.E.2d 897, 899 (1993).    "'"Ultimate

questions of reasonable suspicion and probable cause"' . . .

involve questions of both law and fact and are reviewed de novo

on appeal."    Wallace v. Commonwealth, 32 Va. App. 497, 503, 528

S.E.2d 739, 742 (2000) (quoting McGee v. Commonwealth, 25 Va.

App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) (quoting

Ornelas v. United States, 517 U.S. 690, 691 (1996))).      However,

we are bound by the trial court's factual determinations unless

plainly wrong or without evidence to support them, granting

deference to inferences reasonably drawn from those facts by

police officers and "independently determine whether under the

established law those facts satisfy the constitutional

standard."    Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d

                                - 4 -
921, 924 (2000) (citing Ornelas, 517 U.S. at 697-99); see also

Giles v. Commonwealth, 32 Va. App. 519, 522, 529 S.E.2d 327, 329

(2000).

     In order for a stop to be reasonable, the officer "'must be

able to point to specific articulable facts which, taken

together with rational inferences from those facts, reasonably

warrant'" the stop.   Buck v. Commonwealth, 20 Va. App. 298, 302,

456 S.E.2d 534, 536 (1995) (quoting Terry v. Ohio, 490 U.S. 1,

21 (1968)).   "A reasonable articulable suspicion is more than an

'unparticularized suspicion or "hunch"'" requiring "at least a

minimal level of objective justification" for the stop.     Bass,

259 Va. at 475, 525 S.E.2d at 923 (citations omitted).

"Suspicion of a 'particular crime' is not necessary 'to justify'

a Terry stop, provided 'the officer can, based on the

circumstances before him at the time, articulate a reasonable

basis' for a 'general suspicion of some criminal activity.'"

Miller, 16 Va. App. at 979-80, 434 S.E.2d at 899 (quoting

Hatcher v. Commonwealth, 14 Va. App. 487, 490, 419 S.E.2d 256,

258 (1992); Wells v. Commonwealth, 6 Va. App. 541, 551, 371

S.E.2d 19, 24 (1988)).    "The court must consider the totality of

the circumstances in determining whether a police officer had a

particularized and objective basis for suspecting that a person

stopped may be involved in criminal activity."    Bass, 259 Va. at

475, 525 S.E.2d at 924.   The court must consider in determining

if reasonable suspicion exists that "'[t]rained and experienced

                                - 5 -
police officers . . . may be able to perceive and articulate

meaning given conduct which would be wholly innocent to the

untrained observer.'"   Buck, 20 Va. App. at 302, 456 S.E.2d at

536 (quoting Richards v. Commonwealth, 8 Va. App. 612, 616, 383

S.E.2d 268, 271 (1989) (citing United States v. Brignoni-Ponce,

422 U.S. 873, 883-84 (1975))).

     Applying those standards to the instant case, we find the

trial court erred.   Hoelen knew of the two confrontations Grim

had with the three intoxicated men and the van that evening.

Grim identified the van to Hoelen.       Hoelen noted its distinctive

coloring and tag number.   Hoelen, based on information provided

by Grim, a trained police officer, was aware that during the

second encounter with the van, the driver, upon making eye

contact with the officer, got out of the van and fled.      We have

previously held that flight from a police officer standing alone

may not necessarily indicate criminal activity, but it is a

factor in determining reasonable suspicion.       See Wallace, 32 Va.

App. at 504, 528 S.E.2d at 742; Buck, 20 Va. App. at 303, 456

S.E.2d at 536; see also Illinois v. Wardlow, 528 U.S. 119,

124-26 (2000).   From his first interaction with the three men

and the van, Grim observed that all of the men were too

intoxicated to drive the van.    They were told not to drive, and

the three men agreed to call someone to pick them up.      A short

time later, Grim saw the van in motion and when the driver made

eye contact with Grim, he fled the scene.      The driver's flight

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in the totality of these circumstances reasonably led Grim to

believe that the driver was not someone other than the three men

who were still too intoxicated to drive.     It was clear at that

point that contrary to their agreement not to drive, they had in

fact done so.

        Although Hoelen was not a part of the initial

confrontations, he had a reasonable basis to believe that the

driver of the van might be intoxicated that evening.      Grim told

him "[i]f you see that van later, the guy is probably intoxicated

because he bailed out and ran."    Hoelen was also told "that the

original driver was probably hiding somewhere waiting for the

police to kind of disappear and come back and get his van."     Thus,

when Hoelen observed that the van was no longer in the parking lot

he reasonably believed that the driver, along with the passengers

who had been drinking and were too intoxicated to drive, had

returned to the van and driven away.     After Hoelen found the van,

further evidence corroborated Grim's statements to him that the

driver was likely intoxicated.    As Hoelen followed the van, the

"vehicle appeared to be very tenuous or cautious about everything

they did" as it drove only 46 miles per hour in a 55 mile per hour

zone.    Hoelen testified that these are possible signs of an

intoxicated driver.    See Freeman v. Commonwealth, 20 Va. App. 658,

662, 460 S.E.2d 261, 263 (1995) (holding that driving at a slow

speed is a factor to be considered in determining reasonable

suspicion).

                                 - 7 -
     This is not a case where Hoelen received information about

a possible crime from an anonymous informant.      Hoelen obtained

his information from Grim, a law enforcement officer, in person.

Grim had firsthand knowledge of the criminal activity and

explained the basis of that knowledge to Hoelen.       See generally

Giles, 32 Va. App. at 524, 529 S.E.2d at 329 (holding that a

report from a citizen obtained by a police officer in person is

different from an anonymous tip because the officer is able to

"assess their credibility and the reliability of their

information" particularly when they explain the source of their

information).    Thus, we find that Hoelen was justified in

relying upon the information he obtained from Grim.

     Defendant also argues that since Hoelen did not know who the

driver was, it could have been a third party the three men told

Grim they would call to drive them home.     Thus, defendant argues

that it was possible that no criminal activity was taking place.

However, the standard is not whether a criminal act is occurring

but whether the officer had a reasonable articulable suspicion

that the person may be involved in criminal activity.     See Bass,

259 Va. at 475, 525 S.E.2d at 924.      After learning of Grim's

interactions with the three men and the van and that the three men

were too intoxicated to drive, Hoelen observed conduct that was,

as defendant asserts, ambiguous and susceptible to an innocent

explanation.    However, the observed conduct also supported

Hoelen's reasonable belief that the driver who fled from Grim had

                                - 8 -
returned and was still too intoxicated to drive the van.

Accordingly we hold that reasonable articulable suspicion

supported Hoelen's stop of the van.   For the foregoing reasons,

the ruling of the trial court is reversed, and the case is

remanded for trial.

                                         Reversed and remanded.




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