                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Haley
Argued at Chesapeake, Virginia


DEMETRES JERROD RUDOLPH
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0240-07-1                                  JUDGE ROBERT J. HUMPHREYS
                                                                 FEBRUARY 26, 2008
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                               A. Bonwill Shockley, Judge

                 Melinda R. Glaubke (Slipow, Robusto & Kellam, P.C., on brief), for
                 appellant.

                 Josephine F. Whalen, Assistant Attorney General II (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Demetres J. Rudolph (“Rudolph”) appeals his conviction, following his conditional guilty

plea, for possession of marijuana with intent to distribute, in violation of Code § 18.2-248.1.

Rudolph argues that the trial court erred by not suppressing marijuana found in his vehicle.

Rudolph claims that the stop of his vehicle that resulted in the discovery of the marijuana

violated the Fourth Amendment to the United States Constitution because the stop was not based

on reasonable suspicion. We disagree and affirm the decision of the trial court.

                                            ANALYSIS

       The sole issue on appeal is whether Officer Jeremy Latchman’s stop of Rudolph’s vehicle

was permissible under the Fourth Amendment. The permissibility of a traffic stop under the

Fourth Amendment is “a mixed question of law and fact.” Ornelas v. United States, 517 U.S.

690, 696 (1996). Accordingly, “we are bound by the trial court’s findings of historical fact

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

However, we review the trial court’s application of the Fourth Amendment to those facts de

novo. See Ornelas, 517 U.S. at 691.

       The Fourth Amendment “does not proscribe all searches and seizures, but only those that

are unreasonable.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989). In Terry

v. Ohio, 392 U.S. 1 (1968), the Supreme Court of the United States “held that 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). “Reasonable, articulable suspicion” requires more than an officer’s “inchoate

and unparticularized suspicion or ‘hunch.’” Terry, 392 U.S. at 17. However, it requires

“considerably less than proof of wrongdoing by a preponderance of the evidence” and

“obviously less” than probable cause. United States v. Sokolow, 490 U.S. 1, 7 (1989). To

justify a Terry stop, “the police officer must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant that

intrusion.” Terry, 392 U.S. at 21.

       “It is well established that whether reasonable suspicion ‘exists to warrant an

investigatory stop is determined by the totality of the circumstances.’” Gregory v.

Commonwealth, 22 Va. App. 100, 107, 468 S.E.2d 117, 121 (1996) (quoting Smith v.

Commonwealth, 12 Va. App. 1100, 1103, 407 S.E.2d 49, 51 (1991)). Some of the circumstances

this Court has considered include “an obvious attempt to avoid officers,’” Williams v.

Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87 (1987), the “defendant’s presence in a

high crime area,” Brown v. Commonwealth, 15 Va. App. 232, 235 n.1, 421 S.E.2d 911, 912 n.1

                                                 -2-
(1992), and any “furtive movements and suspicious conduct” of the defendant, Purdie v.

Commonwealth, 36 Va. App. 178, 186, 549 S.E.2d 33, 37 (2001).

         On the night in question, Officer Latchman was patrolling at a shopping center because

the police department “had beefed up a lot of extra patrol and a lot of overtime due to the fact

that there w[ere] a lot of break-ins and robberies in that specific shopping center.” A gas station

was located in the parking lot of that shopping center. Officer Latchman saw Rudolph and

another man in “a vehicle with no lights on parked parallel in the rear” of the gas station.1

Officer Latchman found it “unusual” that Rudolph was parked behind the building because,

although there is a rear entrance, “[t]he front of the building is where all the customers come in”

and “no one enters [the rear entrance] at nighttime.”2 Officer Latchman also noted that, although

there were marked parking spots near Rudolph’s car, he was not parked in any of them.

         Driving his marked police vehicle, Officer Latchman stopped approximately one to

one-and-one-half car lengths behind Rudolph and watched the vehicle for several seconds. As

he watched the car, he saw both passengers making “furtive movements.” The two men “bent

down a couple of times” and it “looked like they were reaching for stuff.” Officer Latchman

decided to drive around the gas station to “make sure everything was fine.” As Officer

Latchman proceeded around the building, Rudolph pulled away from the curb and began to

leave.



         1
         Due to the layout of the gas station and the parking lot, it is difficult to say whether
Rudolph was parked in the rear of the building or along its side. However, whether he was
parked on the side or in the rear does not affect our analysis. It is sufficient for us to say that
Rudolph was parked on the side of the building that is opposite the gas pumps and the main
entrance to the gas station.
         2
          Although Officer Latchman later learned that the rear entrance is locked at night, he
testified that it was “unusual” for someone to use the rear entrance at night based on his own
experience of “observing gas stations.” He explained that it was his experience that “[t]he
customers go through the front door, not through the back.”
                                                -3-
       Rudolph argues and the dissent agrees that those circumstances are not sufficient to

create reasonable suspicion. We disagree. Several of the circumstances that Officer Latchman

articulated point to the reasonable inference that the vehicle’s occupants were preparing to rob

the gas station. The gas station was in the parking lot of a shopping center that had recently been

subject to several burglaries and robberies.3 Rudolph was parked in a dark, low-traffic area in a

manner well-suited for a quick getaway. He and the passenger were bending over and reaching

around the floorboard, but did not turn on the vehicle’s interior lights. When Rudolph saw

Officer Latchman’s patrol car pull past him, he promptly attempted to drive away.

       Based on all of those circumstances, the trial court did not err in finding that it was

reasonable to suspect “that criminal activity may be afoot.” Terry, 392 U.S. at 17. Officer

Latchman had been assigned to that shopping center specifically because of recent and repeated

occurrences of a crime, the imminent commission of which was consistent with Officer

Latchman’s observations. Reasonable suspicion sufficient to allow a police officer to investigate

does not arise only after the commission of a crime. Harmon v. Commonwealth, 15 Va. App.

440, 444, 425 S.E.2d 77, 79 (1992) (“Actual proof that criminal activity is afoot is not necessary;

the record need only show that it may be afoot.” (emphasis in original)). To require a level of



       3
          Contrary to the dissent’s assertions, we make no claim that the gas station was located
in a general “high crime” area. There is no evidence in the record that overall criminal activity is
higher in this neighborhood than in other parts of Virginia Beach. Rather, as part of a reasonable
suspicion analysis, we merely acknowledge Officer Latchman’s testimony that the police
department “had beefed up a lot of extra patrol and a lot of overtime due to the fact that there
w[ere] a lot of break-ins and robberies in that specific shopping center.” We disagree with the
dissent that the recent history of burglaries and robberies in that location has only “marginal
significance” in the investigation of crime in the area. By way of analogy, the fact that people
have attempted to smuggle dangerous items onto airplanes has certainly more than “marginal
significance” in an analysis of whether it is reasonable for agents of the federal government to
search the carry-on luggage of airline passengers before they board a plane. The fact that Officer
Latchman observed actions consistent with the preparation for a robbery when coupled with the
fact that several robberies had recently occurred in that specific location is most certainly
significant to any reasonable suspicion analysis.
                                                 -4-
suspicion greater than that present in this case would be to effectively replace the requirement of

reasonable suspicion with the higher standard of probable cause.

       We disagree with the dissent’s view that a finding of reasonable suspicion in this case is

inconsistent with the holding of our Supreme Court in Ewell v. Commonwealth, 254 Va. 214,

491 S.E.2d 721 (1997). The circumstances that Officer Latchman observed in this case are

significantly more suspicious than the circumstances of Ewell. In Ewell, the only “suspicious”

facts were that the suspect was parked late at night in an apartment complex “suspected of ‘high

narcotics’ trafficking,” the officer did not recognize the driver or the vehicle, and the vehicle

attempted to leave upon the officer’s arrival. Id. at 216, 491 S.E.2d at 722. The officer in Ewell

did not observe any additional actions consistent with the trafficking of drugs. In fact, the Court

specifically noted, “Although the automobile was parked in an area suspected of ‘high narcotics’

trafficking and it exited the parking lot upon [the officer’s] arrival in a police vehicle, nothing

about Ewell’s conduct was suspicious.” Id. at 217, 491 S.E.2d at 723.

       The facts in this case are quite different. Here, as in Ewell, the officer observed the

suspect parked at night in a high crime area and the suspect attempted to leave the parking lot

shortly after the arrival of the police vehicle. However, the officer in this case, unlike the officer

in Ewell, also observed several facts consistent with, and preparatory to, the very type of crime

that had recently been occurring in that shopping center and which he had been assigned to

prevent. Considering the specific recent history of robberies and burglaries and Rudolph’s

conduct consistent with that of a person preparing to commit that specific crime, the facts before

us today are clearly more suspicious than the facts of Ewell. Thus, we reject the dissent’s

assertion that our decision today is inconsistent with Ewell.

       The dissent also cites our recent case, Asble v. Commonwealth, 50 Va. App. 643, 653

S.E.2d 285 (2007), as proof that Rudolph’s movements inside his vehicle did not create

                                                 -5-
reasonable suspicion. We agree that Rudolph’s movements inside his vehicle did not in and of

themselves give rise to reasonable suspicion. Rather, his movements were simply one of several

factors that created reasonable suspicion. Asble is factually distinct from this case and does not

dictate that the act of repeatedly bending down and reaching around the floorboard of a car

cannot be considered as one factor among many that may together constitute reasonable

suspicion. In Asble, reasonable suspicion did not exist because, unlike in this case, a furtive

movement by a passenger of a parked car was the only suspicious circumstance the investigating

officer could articulate. In Asble, a police officer observed a vehicle parked on the shoulder of

an entrance ramp of a highway late at night. As he approached the vehicle the officer observed

the driver “bend toward the floorboard, making a motion with his arm.” Id. at 646, 653 S.E.2d at

286. When the officer arrived at the vehicle he saw a woman lying across the back seat and

‘“asked were they okay.’” Id. The driver told the officer that the woman was his wife and that

she was sick. Without asking any further questions, the officer asked the driver to get out of the

car and initiated a Terry stop. We held that the officer did not have reasonable suspicion

because, under the circumstances, the driver’s act of bending over and reaching around did not

create reasonable suspicion by itself. However, nothing in Asble mandates that it is improper to

consider bending down and reaching around the floorboard of a car as one of many factors in a

reasonable suspicion analysis as we do here.4


       4
          The dissent also cites Asble in raising a concern that Officer Latchman did not identify
the particular offense that he suspected Rudolph of committing. That concern is, however,
without basis.

               “It is important to remember that we are not limited to what the
               stopping officer says or to evidence of his subjective rationale;
               rather, we look to the record as a whole to determine what facts
               were known to the officer and then consider whether a reasonable
               officer in those circumstances would have been suspicious.”


                                                -6-
       The dissent’s essential argument is that, because no one particular circumstance of this

case gives rise to reasonable suspicion, reasonable suspicion must not exist. The flaw in that

reasoning is that it analyzes each circumstance in isolation instead of viewing all of the

circumstances together. Both the United States Supreme Court and the Virginia Supreme Court

have continuously recognized that the determination of reasonable suspicion is based on the

totality of the circumstances available to the officer. See United States v. Arvizu, 534 U.S. 266,

273 (2002) (“When discussing how reviewing courts should make reasonable-suspicion

determinations, we have said repeatedly that they must look at the ‘totality of the circumstances’

of each case to see whether the detaining officer has a ‘particularized and objective basis’ for

suspecting legal wrongdoing.”); Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463,

465 (2003) (“To determine whether a police officer had a particularized and objective basis for

suspecting that the person stopped may be involved in criminal activity, a court must consider

the totality of the circumstances.”). “Under the Fourth Amendment, ‘the relevant inquiry is not

whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to

particular types of noncriminal acts.’” Raab v. Commonwealth, 49 Va. App. 638, 644-45, 644

S.E.2d 78, 81-82 (2007). Terry itself recognized that each individual action that contributes to

reasonable suspicion may be “innocent in itself,” but “taken together” the circumstances may

“warrant further investigation.” Terry, 392 U.S. at 23. Put another way, Terry and its progeny


Raab v. Commonwealth, 49 Va. App. 638, 642 n.4, 644 S.E.2d 78, 82 n.4 (2007) quoting United
States v. Brown, 232 F.3d 589, 594 (7th Cir. 2000)). “The validity of a seizure ‘turns on an
objective assessment of the officer’s actions in light of the facts and circumstances confronting
him at the time, and not on the officer’s actual state of mind at the time the challenged action was
taken.’” Welshman v. Commonwealth, 28 Va. App. 20, 30, 502 S.E.2d 122, 137 (1998) (en
banc) (quoting Maryland v. Macon, 472 U.S. 463, 470-71 (1985)). “The fact that the officer
does not have the state of mind which is hypothecated by the reasons which provide the legal
justification for the officer’s action does not invalidate the action taken as long as the
circumstances, viewed objectively, justify that action.” Whren v. United States, 517 U.S. 806,
813 (1996).

                                                -7-
recognize that the question is not whether there might be an innocent explanation for the facts

and circumstances that give rise to an officer’s suspicion of criminal activity as the dissent seems

to suggest, but rather whether the facts and circumstances are such that it is reasonable for the

officer to investigate further to determine whether that is indeed the case. See Arvizu, 534 U.S.

at 277 (“A determination that reasonable suspicion exists, however, need not rule out the

possibility of innocent conduct.”); Raab, 49 Va. App. at 643, 644 S.E.2d at 81 (“The possibility –

even a more-likely-than-not probability – of an innocent explanation for the conduct does not

necessarily forbid an officer from making a brief, investigatory stop.”). The dissent goes to great

lengths to single out individual circumstances and point out that, standing alone, none of them

give rise to reasonable suspicion. That, however, is not the issue. The question we must answer

is whether, under the totality of the circumstances, Officer Latchman had reasonable suspicion to

believe that criminal activity was afoot. We hold that he did.

                                           CONCLUSION

       Viewing all of the facts available to Officer Latchman – the time of day, the location of

Rudolph’s vehicle in relation to the gas station, the recent history of burglaries and robberies at

that location, Rudolph’s movements in the vehicle, and Rudolph’s attempt to leave after a

marked police vehicle pulled out from behind him – it is clear that he had reasonable suspicion to

believe that “criminal activity might be afoot.” Terry, 392 U.S. at 30. Thus, Officer Latchman’s

stop of Rudolph’s vehicle to investigate further did not violate the Fourth Amendment. We

therefore affirm the decision of the trial court.

                                                                                           Affirmed.




                                                    -8-
Haley, J., dissenting.

        Today the majority holds that the Fourth Amendment permits the police to detain persons

who reach for things inside their automobiles, while parked near the entrance to an open

business, provided they do so in a “high crime” neighborhood and drive away shortly after they

are seen by the police. I dissent because I think this conclusion is inconsistent with the Fourth

Amendment.

                                               FACTS

        Appellant’s vehicle was parked next to the Citgo gas station and convenience store in the

shopping center with its headlights off. Officer Latchman described the location of appellant’s

vehicle as “in the rear of” the Citgo station, and it is true that the car was parked on the side of

the station opposite the gasoline pumps. Yet, during his testimony at the suppression hearing,

Officer Latchman marked photographs of the exterior of the gas station at the spot on the

photograph where he first saw appellant’s parked car. The marks on these photographs

demonstrate that appellant’s car was parked only a few steps away from one of the doorways into

the station. A speed bump is visible in one of the photos immediately in the path of appellant’s

car. The majority mentions, in its analysis, the officer’s testimony that it would have been

unusual for a customer not to use the other door next to the gasoline pumps. On this point, the

majority ignores the following testimony:

                A: Yes sir. In the back of the building, no one enters at nighttime.
                The front of the building is where all the customers come in. So it
                would have been unusual for the vehicle to be parked there. Based
                on those circumstances, that’s why I stopped the vehicle.
                Q: And that’s the only other question I had. The back door, is that
                open at night?

                A: No.

                Q: Just the front area by the pumps?

                A: Yes. Because there was only one clerk in there at the time.
                                             -9-
                           *      *      *       *        *      *      *

                               RECROSS-EXAMINATION

               Q: How do you know that?

               A: I can tell you from – from both – both of us speaking to the
               clerk.

               Q: Okay. But this was after this arrest?

               A: Well, it was while the whole investigation was going on.
               Q: Okay. You did not have that information prior to making the
               stop? You learned afterwards that by asking the clerk was the door
               locked? You learned that after the investigation?

               A: Right.

       The photographs also display advertisements for cigarettes in the exterior windows of the

Citgo station, adjacent to the door where appellant had stopped, signifying their availability for

sale to customers who might come through the door. Officer Latchman testified that the station

was still open for business when he saw appellant’s vehicle. He also testified that he was on

patrol because there had been a number of burglaries and robberies in the shopping center.

However, he was not investigating any specific crime. Nor had anyone from the Citgo station

called the police to report any suspicious behavior by appellant or by anyone else. Officer

Latchman was driving his marked police vehicle through the gas station parking lot. He recounts

what happened next.

               Q: While you were observing the defendant sitting in the vehicle
               there at the rear, did you notice anything about his demeanor or
               actions?

               A: While I was sitting directly behind the vehicle, I observed the
               defendant. He appeared to be moving around in the vehicle. His
               head went down a couple of times and back up. I don’t know if he
               was looking around for something or what else was going on in the
               vehicle at the time.

               Q: You said while you were sitting behind him. How close were
               you sitting behind him?
                                               - 10 -
               A: Probably, I would say, about a car length or a car length and a
               half.

                      *      *     *      *      *       *   *

               Q: Okay. And how long did you sit there behind him?

               A: Just for a few seconds.

               Q: What did you do next after sitting there observing his
               movements?

               A: I decided to go around the vehicle and make sure everything
               was fine, just take a look inside the building as I drove by and
               make sure everything was fine. When I came around the front, I
               observed the vehicle start moving away.

               Q: Okay. What did you do upon observing that?

               A: Upon observing him parked, before he left the lot, I pulled up
               behind him and initiated the investigation on the vehicle and what
               was going on back at the end of the building.

Officer Latchman activated his emergency equipment and stopped appellant’s car. There was no

evidence that appellant had seen Officer Latchman before the officer initiated the stop.

                                              ANALYSIS

       The majority begins its analysis by correctly identifying our standard of review, and

quoting the well-settled proposition that police may briefly stop and detain persons if, based on

the totality of the circumstances, they have a reasonable, articulable suspicion of criminal

activity. Terry v. Ohio, 392 U.S. 1, 17 (1968). Next they cite cases identifying some factors that

are sometimes relevant to the reasonable suspicion analysis. At this point in the opinion, the

majority mentions three factors: attempting to avoid officers, presence in a “high crime area,”

and the more generic “furtive movements and suspicious conduct.”

       I conclude that the cases from which the majority collects these factors are substantially

distinguishable from this case. Thus, the majority’s reliance upon them is unpersuasive. For

                                                - 11 -
example, Brown v. Commonwealth, 15 Va. App. 232, 421 S.E.2d 911 (1992), is not even a

Fourth Amendment case. It addresses instead the circumstances under which a police officer’s

testimony about the reputation of a neighborhood for illegal drug trafficking can be admissible

evidence in a jury trial for drug possession with the intent to distribute. Id. at 234, 421 S.E.2d at

912. The subject of investigative stops is mentioned only in the footnote cited by the majority,

very briefly, and only to point out that, “the defendant’s presence in a high crime area, standing

alone, does not provide the requisite degree of suspicion to justify an investigatory stop.” Id. at

234 n.1, 421 S.E.2d at 912 n.1. The decision is not very instructive as to whether and, if so, why

and to what extent the “high crime” neighborhood around the Citgo station was relevant to

Officer Latchman’s stop of appellant under the totality of the circumstances in our case.

       Purdie v. Commonwealth, 36 Va. App. 178, 549 S.E.2d 33 (2001), also cited in the

majority opinion, is not a vehicle stop case either. “Purdie does not challenge the stop of the

vehicle in which he was a passenger, the request for him to exit the vehicle, or the initial

patdown conducted by Officer Conigliaro.” Id. at 185, 549 S.E.2d at 36. Instead, the Purdie

decision decided that the police had probable cause to search the defendant’s pocket. Id. at 186,

549 S.E.2d at 37. The defendant was known to the police for having previously stabbed an

officer and for having previously thrown away narcotics while attempting to flee the police. Id.

at 182, 549 S.E.2d at 35. After the stop, the defendant appeared to be nervous; he walked with a

hunched posture that obscured the view of his waistband/groin area when the officers were in

front of him and resumed a normal posture when his back was to the officers. He repeatedly

pushed his hands into his pockets and brought them out of his pockets again with his fists

clenched around something while looking 360 degrees around him, and he finally swallowed

something concealed in his hand when subjected to a pat down by police. Id. at 183-84, 549

S.E.2d at 36. It is helpful to read the language from the majority’s quotation in its full context:

                                                - 12 -
“Based upon the totality of the circumstances, consisting of furtive movements and suspicious

conduct, which culminated in Purdie swallowing something that had been hidden in his hand,

[the officer] had probable cause to believe that Purdie had disposed of an illegal substance.” Id.

at 186, 549 S.E.2d at 37. There is nothing in the record before us demonstrating “furtive

movements and evasive behavior” remotely approaching the circumstances of suspicion in

Purdie.

          Williams v. Commonwealth, 4 Va. App. 53, 58-59, 354 S.E.2d 79, 82 (1987), addresses,

among other issues, the stop of a motorist who had been accused of cocaine distribution by two

confidential police informants, informants who identified the motorist’s alleged accomplice and

cocaine supplier, described the make and model year of the motorist’s car, described the way he

allegedly received the cocaine, and identified the specific address from which he allegedly sold

the cocaine. A detective also conducted a record check and learned that this particular motorist

had a drug-related criminal history in South Carolina, which, according to the confidential

informants, was the very place from which the defendant’s drug supplier mailed him the drugs.

Id. The police stopped the defendant when they saw him driving away from his house at the

same time other police were on the way to that house to serve a search warrant issued by a

neutral magistrate upon an affidavit which included the details provided by the confidential

informants and the results of the criminal record check. Id. at 59, 354 S.E.2d at 82.

          This Court’s decision in Williams held that the police had a reasonable suspicion to stop

the defendant’s vehicle. Id. at 65, 354 S.E.2d at 85-86. The paragraph in the Williams opinion

analyzing the vehicle stop is devoted entirely to the circumstances focusing suspicion on the

individual motorist: the information provided by the confidential informants, the record check,

and the search warrant. Id. The paragraph does not even mention the defendant’s driving away



                                                - 13 -
from the house. Id. I do not believe Williams provides any meaningful support for Officer

Latchman’s stop of appellant.

                          APPELLANT’S “FURTIVE MOVEMENTS”

       The majority mentions appellant’s movements in their decision to affirm the trial court.

I believe this decision is inconsistent with our recent decision in Asble v. Commonwealth, 50

Va. App. 643, 653 S.E.2d 285 (2007). Asble is instructive on the issue of whether appellant’s

“furtive movements” justified the seizure in this case. In Asble, a police officer saw the

defendant and a passenger inside a nonmoving car, shortly before midnight, on the shoulder lane

of an entrance ramp onto Interstate 264. The police officer testified that, as he approached the

car, he saw the defendant bend toward the floorboard and move his arm. Id. at 646, 653 S.E.2d

at 286. The officer asked the defendant what he was doing on the shoulder of the entrance ramp,

and the defendant replied that his wife was sick. Id. at 646-67, 653 S.E.2d at 286. The officer

then removed the defendant from the car and frisked him for weapons. Id. at 647, 653 S.E.2d at

286. We held that the trial court erred in failing to grant the defendant’s motion to suppress

evidence recovered as a result of the stop because the officer did not have a reasonable suspicion

that the defendant was engaged in criminal activity. Id. at 649, 653 S.E.2d at 287-88. Asble

assists our analysis of this case because that decision analyzed the defendant’s “furtive gesture”

toward the floorboard and concluded that it did not create a reasonable suspicion of criminal

activity. Id. at 649, 653 S.E.2d at 288. “[The officer] noted only that ‘sometimes’ when

movement such as he saw occurs, weapons and/or narcotics are present. This was, at best, a

mere hunch, not a particularized suspicion flowing reasonably from articulable facts.” Id.

       I do not believe the majority’s attempt to distinguish Asble is persuasive. They merely

follow a summary of the facts with this statement: “[N]othing in Asble mandates that it is

improper to consider bending down and reaching around the floorboard of a car as one of many

                                               - 14 -
factors in the reasonable suspicion analysis.” This is true enough, but not very helpful. It does

not explain why this Court should allow the stop in this case when we found the stop in Asble to

violate the Constitution. Both stops came after “furtive movements,” late at night, by a person

who was in a parked car with a passenger. What additional factor makes this case so

meaningfully different that we should reach the opposite result? The majority’s determination

that the stop in this case was justified suggests that they find the defendant’s presence in a “high

crime” area to be the decisive factor.

                       THE SIGNIFICANCE OF A HIGH CRIME AREA

       Accordingly, I shall analyze under what circumstances can a person’s presence in a “high

crime” area ever reasonably heighten the circumstances of suspicion surrounding a particular

individual. This is an important question because, though they do not say so explicitly, the

majority’s position suggests that they believe that the stop in Asble would pass constitutional

muster if it had taken place in the parking lot of the Citgo station. In deciding this question, our

guide must be the principles laid down in prior cases and a careful recognition of how such cases

have applied the defendant’s presence in a “high crime area” to the reasonable suspicion

analysis. It is a good start to remember that, except for certain checkpoint and roadblock cases

not applicable here, the reasonableness of a Fourth Amendment seizure depends upon

circumstances tending to focus suspicion on the specific individual seized. Delaware v. Prouse,

440 U.S. 648, 663 (1979); Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478

(1982) (citing United States v. Cortez, 449 U.S. 411, 417-18 (1981)); Giles v. Commonwealth,

32 Va. App. 519, 523, 529 S.E.2d 327, 329 (2000) (citing Jacques v. Commonwealth, 12

Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)).

       There is an undeniable tension between the public character of a neighborhood’s

reputation for criminal activity and a legal standard that requires “a particularized and objective

                                                - 15 -
basis for suspecting the particular person stopped of criminal activity.” Riley v. Commonwealth,

13 Va. App. 494, 498, 412 S.E.2d 724, 727 (1992) (quoting Cortez, 449 U.S. at 417). Perhaps

this is the reason, in an area of the law featuring very few bright-line rules, and dominated by a

case-by-case, totality of the circumstances approach, a person’s presence in a “high crime” area

is one of the few factors that can never, by itself, be decisive. Brown v. Texas, 443 U.S. 47, 52

(1979); Goodwin v. Commonwealth, 11 Va. App. 363, 398 S.E.2d 690 (1990).

               “[T]housands of citizens live and go about their legitimate
               day to-day activities in areas which surface . . . in court testimony,
               as being high crime neighborhoods. The fact that the events here
               at issue took place at or near an allegedly ‘high narcotics activity’
               area does not objectively lend any sinister connotation to facts that
               are innocent on their face.”

Riley, 13 Va. App. at 498, 412 S.E.2d at 726-27 (quoting Smith v. United States, 558 A.2d 312,

316 (D.C. App. 1989)). “Even in high crime areas, where the possibility that any given

individual is armed is significant, Terry requires reasonable, individualized suspicion before a

frisk for weapons can be conducted.” Maryland v. Buie, 494 U.S. 325, 334 n.2 (1990).

       While the phrase “high crime area” appears frequently in Virginia decisions, it is rarely

discussed at length. Nor do the cases that do mention it explain when, if ever, the defendant’s

presence in a high crime area makes the difference between circumstances where a seizure would

be unreasonable and circumstances justifying a Terry stop. This Court has, however, considered

the criminal reputation of the area in upholding a Terry stop of a man standing, at night, in an

area with a reputation for drug activity, who made eye contact with a passing police officer, and

then attempted to shove something into the pocket of the person next to him, who refused to

accept whatever it was. Walker v. Commonwealth, 42 Va. App. 782, 595 S.E.2d 30 (2004). We

also mentioned this factor in deciding that a police officer had reasonable suspicion to stop a man

the officer saw handing items, which the officer could not see, to a few different women, after

two o’clock in the morning, outside an apartment building in a “high-crime area”; another police
                                             - 16 -
officer also noticed that the man handed a large wad of money to another man who went into the

apartment building; both officers had heard shooting in the area and noticed empty shell casings

on the ground near the man. Kidd v. Commonwealth, 38 Va. App. 433, 565 S.E.2d 337 (2002).

       It is also important to consider our precedents reversing fruits of unlawful Terry stops,

despite police testimony that the defendant was present in a “high crime” area. One of these

cases is Ewell v. Commonwealth, 254 Va. 214, 491 S.E.2d 721 (1997), which the majority

attempts to distinguish from this case. In Ewell, a police officer noticed the defendant in the

parking lot of an apartment complex shortly after midnight. Id. at 216, 491 S.E.2d at 722. The

officer testified that he knew the apartment complex as an area of frequent narcotics trafficking

and that he did not recognize the defendant, even though he knew most of the people who lived

in the apartments. Id. There was also a lighted sign in the parking lot which read: “no

trespassing.” Id. The police officer also testified that the defendant attempted to leave the

parking lot in her car as soon as the police vehicle came into the lot. Id. Our Supreme Court

ruled that the officer’s stop of the defendant’s car as she drove away was not supported by a

reasonable suspicion of criminal activity. “Although the automobile was parked in an area

suspected of ‘high narcotics’ trafficking and it exited the parking lot upon [the officer’s] arrival

in a police vehicle, nothing about Ewell’s conduct was suspicious.” Id. at 217, 491 S.E.2d at

723.

       We also reversed the defendant’s conviction in Goodwin, 11 Va. App. at 367, 398 S.E.2d

at 692. In Goodwin, the police saw the defendant in a “high crime” area walk out from behind

some apartments and toward the street; when the defendant appeared to see the police car, he

“jammed” his hand into his coat pocket. Id. at 365, 398 S.E.2d at 691. Despite not having seen

what the defendant had in his hand, the police officer approached him and told them he wanted



                                                - 17 -
to pat him down for weapons. Id. We held that the police lacked reasonable suspicion to make

the stop. Id. at 367, 398 S.E.2d at 692.

       In Riley, 13 Va. App. at 495, 412 S.E.2d at 725, the police observed the defendant exit a

vehicle in a “high crime” area. After exiting the vehicle, the defendant turned his back to the

police and made a motion toward his waistband. Id. The police officer testified that, though he

did not see any object, he believed the defendant had a weapon. Id. We held the stop of the

defendant violated the Fourth Amendment and reversed his conviction. “[The police officer] had

no prior knowledge of Riley or his possible involvement in any criminal activity.” Id. at 497,

412 S.E.2d at 726. We also held that a police officer had no reasonable suspicion to stop a

person in a playground described as a high crime area when the police officer saw the man

quickly thrust his hand into his pants when the officer approached in his car. Smith v.

Commonwealth, 12 Va. App. 1100, 1104, 407 S.E.2d 49, 52 (1991).

       Christian v. Commonwealth, 33 Va. App. 704, 536 S.E.2d 477 (2000), may be the

decision of this Court that comes closest to suggesting that the criminal reputation of the area

might have been decisive in the decision to uphold a Terry stop of an individual. Two

undercover police officers were selling imitation controlled substances to people who walked by

or drove through an apartment complex where there had been many complaints of drug sales. Id.

at 707, 536 S.E.2d at 479. The police officer assigned to protect the undercover officers noticed

the defendant walking toward the apartment building holding a gun. Id. Even though it is not

necessarily illegal to carry a gun, we held that the officer had a reasonable suspicion to stop the

defendant and take his gun away. Id. at 714-15, 536 S.E.2d at 483.

               Here, police observed defendant suddenly appear, displaying a
               firearm, late at night, in an area notorious for “drug sales.”
               Defendant’s presence coincided with an ongoing police operation
               that involved several undercover officers in the sale of imitation
               illegal drugs, clearly an environment conducive to unlawful
               conduct and fraught with danger. . . . Confronted with such
                                                 - 18 -
                 circumstances, police, experienced in the deadly mix of guns and
                 narcotics and other violent crimes, reasonably suspected criminal
                 activity which posed an immediate threat both to themselves and
                 others, justifying a brief investigatory detention.

Id. While the decision does not expressly say so, I believe it demonstrates the way the “high

crime” area factor is properly considered in the reasonable suspicion analysis. Christian

identifies a situation in which suspicious activity (holding a gun), which might not justify a stop

if the police witnessed it in some other place, justified a Terry stop because of where and when it

occurred. It is difficult to imagine the Court upholding a Terry stop if the defendant in Christian

had been holding his gun while walking from his car into a recreational shooting range.

       We find another clue as to the marginal significance of a “high crime” area by comparing

Goodwin with Moss v. Commonwealth, 7 Va. App. 305, 373 S.E.2d 170 (1988). The facts of

Moss were very similar to the facts of Goodwin. In both cases, we held that a Terry stop was not

justified by the facts and reversed the defendant’s conviction. Goodwin, 11 Va. App. at 367, 398

S.E.2d at 692; Moss, 7 Va. App. at 308, 373 S.E.2d at 172. However, the stop in Moss did not

take place in a “high crime” area, while the stop in Goodwin did. The Goodwin opinion still

described Moss as “a case based on comparable facts . . . .” Goodwin, 11 Va. App. at 366, 398

S.E.2d at 692.

                 As in Moss, the police officers, relying on their experience and
                 instincts, saw a suspect doing something with his hands. Based
                 primarily on that action, which they considered suspicious, they
                 stopped the suspect. While the police are regularly required to rely
                 on their experience and instincts, the fourth amendment requires, at
                 a minimum, that they possess articulable facts giving rise to
                 reasonable suspicion of criminal activity before depriving a citizen
                 of his or her privacy or freedom of movement.

Id. at 367, 398 S.E.2d at 692.

       Parsing our prior “high crime” area cases we can conclude that a defendant’s presence in

a high crime area has been marginally significant if accompanied by multiple hand transfers

                                                - 19 -
explained to be suggestive of drug dealing by experienced officers. See Kidd, 38 Va. App. 433,

565 S.E.2d 337. It has been marginally significant in evaluating the behavior of someone

obviously trying to hide something from the police. See Walker, 42 Va. App. 782, 595 S.E.2d

30. It has been highly significant if the person seized has a weapon or poses a clear danger to the

police. See Christian, 33 Va. App. 704, 536 S.E.2d 477. At least one federal appeals court has

also considered a “high crime area” significant in finding reasonable suspicion from the

defendant’s unexplained presence, very late at night, outside a group of closed commercial

establishments. See United States v. Briggman, 931 F.2d 705 (11th Cir. 1991).

       However, a defendant’s presence in a “high crime” area has not been enough to justify a

stop based on a “furtive movement” by a pedestrian where the police do not see a weapon or

item of contraband. See Riley, 13 Va. App. 494, 412 S.E.2d 724; Smith, 12 Va. App. 1100, 407

S.E.2d 49; Goodwin, 11 Va. App. 363, 398 S.E.2d 690. Nor has a motorist’s presence in such an

area equated the motorist’s leaving a parking lot upon the arrival of the police with reasonable

suspicion to conduct a motor vehicle stop. See Ewell, 254 Va. 214, 491 S.E.2d 721. With these

cases in mind, we can address the totality of the circumstances surrounding Officer Latchman’s

seizure of appellant with a greater sense of perspective.

                         THE TOTALITY OF THE CIRCUMSTANCES:
                         THE MAJORITY’S ROBBERY HYPOTHESIS

       While a specific offense of suspicion was never mentioned by Officer Latchman, the trial

judge, or the attorney general, the majority claims to have discerned from the circumstances a

reasonable suspicion that appellant was planning to commit a robbery within the Citgo station. I

believe this conclusion is untenable. By the time the majority reaches its conclusion, the factors

they find worth mentioning have grown from three to five. These are, “the time of day, the

location of Rudolph’s vehicle in relation to the gas station, the recent history of burglaries and


                                               - 20 -
robberies at that location, Rudolph’s movements in that vehicle, and Rudolph’s attempt to leave

after a marked police vehicle pulled out from behind him . . . ,” ante at 8.

          The majority’s first concern, the time of day, might be suspicious if the Citgo station had

been closed. See Raab v. Commonwealth, 49 Va. App. 638, 644 S.E.2d 78 (2007); Briggman,

931 F.2d 705. Since the station was open and customers were still coming in and out, it is

difficult to see how the time of day adds anything to the objective circumstances of suspicion,

and the majority makes no attempt to explain why it would. The majority also fails to explain

what it was about the position of appellant’s car that suggested a robbery attempt. If the majority

means that the car was parked next to a locked door that was not used by patrons during the

evening, then their decision violates the rule that we evaluate a seizure based on the facts known

to the officer at the time of the seizure. Wells v. Commonwealth, 6 Va. App. 541, 550, 371

S.E.2d 19, 23-24 (1988) (citing Terry, 392 U.S. at 21-22). Officer Latchman had no knowledge

that the door near appellant was locked at the time he made the stop. Of the two other comments

the majority makes about appellant’s car’s position, neither suggests an impending robbery. The

officer stated he found it unusual that appellant had not used a marked parking space. But the

majority fails to explain why parking as appellant parked would suggest to a reasonable person

that appellant was preparing a robbery. Why would a robber be less likely to use a marked space

than a customer? As for the majority’s “easy getaway” characterization of appellant’s parking

place, the presence of the speed bump in the path of appellant’s car seriously weakens their

theory.

          In light of our prior cases, the majority’s reliance on appellant’s “furtive movement,”

even when combined with the characteristics of the Citgo station, does not rise to the level of

reasonable suspicion. In Riley, Goodwin, and Smith, we reversed findings of reasonable

suspicion supported by “furtive movements” by pedestrians in “high crime” areas when the

                                                 - 21 -
officer did not see a weapon or item of contraband before making the stop. Riley, 13 Va. App. at

499, 412 S.E.2d at 727; Smith, 12 Va. App. at 1104, 407 S.E.2d at 52; Goodwin, 11 Va. App. at

367, 398 S.E.2d at 692. Unlike the officer in Christian, Officer Latchman did not see a weapon.

Christian, 33 Va. App. at 707, 536 S.E.2d at 479. The only clear difference between this line of

cases and Officer Latchman’s stop of appellant is that appellant’s movement took place inside a

vehicle. Asble, although it did not take place in a “high crime” area, held that this kind of

“furtive movement” inside a vehicle was not sufficient to justify a Terry stop. 50 Va. App. at

649, 653 S.E.2d at 288. The text of the decision does not suggest that Asble was a particularly

close case. “This was, at best, a mere hunch, not a particularized suspicion flowing reasonably

from articulable facts.” Id. (emphasis added). Moreover, there is nothing the least bit suspicious

about being in an automobile in the parking lot of a gas station/convenience store. Common

experience suggests that it is ordinary for patrons of these establishments to be in cars and that

most leave quickly after only stopping for a short period and making their purchases.

       The majority’s defense of its robbery hypothesis does not compare this case with any

other case applying reasonable suspicion analysis to a police officer’s theory that a suspect was

planning a robbery. In Glover v. Commonwealth, 3 Va. App. 152, 154, 348 S.E.2d 434, 436

(1986), a police officer noticed a man sitting in his car outside a 7-11 store for about fifteen

minutes before going inside.

               Once Glover was inside the store, the officer observed that he was
               watching the cash register and was looking at the customers in the
               store. Since Glover appeared to be lost, [the officer] asked him if
               he could be of assistance. He stated “that he was trying to locate a
               friend up on Jordan Street but didn’t know what location.” [The
               officer] got a map to point out the street location, but Glover, who
               had on a blue jogging suit, seemed more interested in the cash
               register than where he wanted to go. The officer noticed that
               Glover was sweating heavily and was nervous. Glover also
               pointed out to [the officer] a couple in the store and stated that they
               followed him into the store and that they were after him. [The

                                                - 22 -
                officer] thought this was suspicious because he had observed the
                couple in the store before Glover arrived.

                Glover returned to his car, sitting in the driver’s seat, where he
                remained for ten to fifteen minutes. He then returned to the store.
                The officer approached Glover again to talk with him. Again,
                Glover commenced to sweat heavily, acted nervous, and looked
                around the store. Glover purchased a soft drink and returned to the
                car, where he remained.

                [The officer] had noted a District of Columbia license plate on the
                car. He testified that: “I had a feeling that subject was a person of
                suspicious activity, feeling that he might be wanting to rob the
                store.” He checked the license number and found that the vehicle
                was owned by Bridget Thomas. He called the police department,
                requested a backup, and went to the parking area to investigate
                further.

                As he approached Glover’s vehicle, [the officer] noted that Glover
                was in the driver’s seat with his right hand in a blue gym bag
                which was sitting on the passenger’s seat beside him. Glover
                slowly took his hand out of the bag as [the officer] approached and
                [the officer] stated that he did not see anything in Glover’s hand as
                he removed it from the gym bag. Glover acknowledged that the
                vehicle was registered to Bridget Thomas. He called her on the
                telephone, and [the officer] spoke with her and confirmed that
                Glover had permission to drive the vehicle. A second police
                officer arrived and was instructed by [the first officer] to watch
                Glover while he went to search the car.

Id. at 154-55, 348 S.E.2d at 436-37.

        This Court held that the officer had a reasonable suspicion to conduct a stop based on his

observations. Id. at 157, 348 S.E.2d at 438. Though the officer did not observe the defendant do

anything illegal, this Court noted that the defendant’s behavior in the store was unusual and that

it was also unusual that he did not drive away after leaving the store and returning to his car. Id.

In this case, the majority considers appellant’s driving away from a gas station/convenience store

to be a fact that strengthens their robbery hypothesis. I do not accept this reasoning in light of

our comments in Glover, suggesting that it was suspicious that the defendant did not drive away

after returning to his car.

                                                - 23 -
       Under the totality of the circumstances, appellant’s behavior was much less suggestive of

a robbery attempt than the behavior the officer witnessed in Glover. In Glover, the police officer

carefully observed the defendant’s strange, albeit legal, behavior for an extended period before

conducting a Terry stop. See also Terry, 392 U.S. at 23 (officer observed two men “over an

extended period of time” walking past and staring into same store window 24 times). In this

case, Officer Latchman observed appellant “for a few seconds” before stopping him. Whether

Officer Latchman might eventually have developed a reasonable suspicion to stop appellant’s car

had he carefully observed appellant’s movements at greater length we will, of course, never

know. I do not suggest that a few seconds of observation will never be enough to justify the stop

of a vehicle. Clearly it depends on the specific facts the officer can articulate. If, for example,

Officer Latchman had testified that he had seen appellant holding a firearm through the window

of the vehicle, then Christian suggests a Terry stop would be appropriate. But nothing like that

happened here.

       The majority also mentions appellant’s driving away as adding to the circumstances of

suspicion. This conclusion seems inconsistent with our approach in Glover, as I have already

explained. It is also counter-intuitive on its face. How does driving away from a Citgo station

strengthen the conclusion that the driver is planning to commit a robbery within the station?

Presumably, the majority would answer that it was suspicious to leave after seeing the officer.

But this answer is unsatisfactory. Surely the vast majority of motorists leaving gas stations do so

because they have finished their business, not to flee the police. Officer Latchman was not well

positioned to say otherwise after observing appellant only for “a few seconds.” His testimony

provided no evidence that appellant even noticed Officer Latchman before driving away.

Moreover, prior cases have reversed stops of motorists who seemed as though they were

avoiding police officers in cases where that inference was considerably stronger than it is here.

                                                - 24 -
See Bass v. Commonwealth, 259 Va. 470, 525 S.E.2d 921 (2000) (suppressing fruits of illegal

stop of motorist who turned off of a street where police were conducting a sobriety checkpoint

and into gas station parking lot without stopping for gas before turning onto perpendicular street,

thus avoiding checkpoint). See also Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125

(1989).

          Finally, Officer Latchman testified that he stopped appellant’s car after he “observed the

vehicle start moving away.” (Emphasis added). Officer Latchman initiated the stop of

appellant’s car, “before he left the lot.” This language from the testimony suggests that appellant

was still within the parking lot of the Citgo station at the time Officer Latchman stopped him.

For all Officer Latchman knew, appellant might not have been leaving the lot. He might have

been moving his car toward one of the gasoline pumps. Thus, the majority is not merely

mistaken in the emphasis they assign to appellant’s leaving the parking lot. They are incorrect in

determining that the record before us even supports a conclusion that this is what appellant was

doing.

                   A RESPONSE TO THE MAJORITY’S CONCERNS ABOUT
                        THE REASONABLE SUSPICION STANDARD

          Without analogizing this case to any prior decision finding reasonable suspicion in

similar circumstances, the majority asserts that, “[t]o require a level of suspicion greater than that

present in this case would be to effectively replace the requirement of reasonable suspicion with

the higher standard of probable cause.” Ante at 4-5. However, all of the following decisions

expressly apply a reasonable suspicion analysis, not a probable cause analysis. Briggman, 931

F.2d at 709; Bass, 259 Va. at 477, 525 S.E.2d at 924; Ewell, 254 Va. at 217, 491 S.E.2d at 722;

Asble, 50 Va. App. at 647-49, 653 S.E.2d at 287-88; Raab, 49 Va. App. at 642-43, 644 S.E.2d at

80; Walker, 42 Va. App. at 790, 595 S.E.2d at 34; Kidd, 38 Va. App. at 443, 565 S.E.2d at 342;

Christian, 33 Va. App. at 714-15, 536 S.E.2d at 483; Riley, 13 Va. App. at 496-97, 412 S.E.2d at
                                             - 25 -
725-26; Smith, 12 Va. App. at 1102-03, 407 S.E.2d at 51; Goodwin, 11 Va. App. at 366, 398

S.E.2d at 691-92; Moss, 7 Va. App at 308, 373 S.E.2d at 172; Glover, 3 Va. App. at 155, 348

S.E.2d at 437.

       I have also mentioned that Officer Latchman did not mention the particular crime that he

suspected appellant of committing. The majority’s footnote 3 ante takes this to mean that I

consider the subjective opinions of the police officer to control the reasonable suspicion inquiry.

This is incorrect. Our decision in Asble, which, as I have already explained, expressly applied

the objective standard of reasonable suspicion, mentioned that, “”[The police officer] identified

no criminal activity of which he suspected Asble.” Id. at 649, 653 S.E.2d at 288. And Asble is

not the only precedent mentioning “the character of the offense under suspicion” as a relevant

factor in the reasonable suspicion analysis. Christian, 33 Va. App. at 714, 536 S.E.2d at 482.

See also Welsh v. Wisconsin, 466 U.S. 740 (1984) (holding some offenses may be so minor as to

make it unreasonable for police to undertake searches that would be constitutionally permissible

if graver offenses were suspected).

       It is true that the police need not always suspect the person stopped of a particular crime

for the stop to be justified. Hatcher v. Commonwealth, 14 Va. App. 487, 490, 419 S.E.2d 256,

258 (1992). But a careful review of the way we have applied this language from Hatcher

convinces me that permissible Terry stops by police officers unable to articulate a particular

“offense under suspicion” have generally involved flight or other obviously evasive behavior by

the suspect upon encountering the police. Walker, 42 Va. App. 782, 595 S.E.2d 30 (appellant

became nervous at the approach of police officers and tried to put something in his hand into the

rear pocket of a woman standing to his left who refused to accept it); Alston v. Commonwealth,

40 Va. App. 728, 581 S.E.2d 245 (2003) (when police officers approached defendant in an

apartment complex, defendant drove out of the parking lot with passenger officer knew was

                                               - 26 -
banned from apartment complex, defendant indicated with turn signal that he would make a left

turn out of the parking lot, then made abrupt right turn, pulled to the side of the road and started

walking away); Hatcher, 14 Va. App. 487, 419 S.E.2d 256 (defendant drove past officer at high

speed at midnight; when officer pursued defendant, defendant turned abruptly into a side street,

turned off headlights, and walked about 25 feet away from the car before officer told him to

stop).

         Terry itself, which also applies an objective standard, emphasizes the importance of the

specific offense of suspicion to meaningful judicial review. “This demand for specificity in the

information upon which police action is predicated is the central teaching of this Court’s Fourth

Amendment jurisprudence.” Terry 392 U.S. at 21 n.18.

                                           CONCLUSION

         Instead of enforcing Terry’s “demand for specificity,” the majority holds that Officer

Latchman developed reasonable suspicion, despite the vagueness of his testimony: “I don’t

know if he was looking around for something or what else was going on in the vehicle at the

time.” And it is worth repeating that they do not describe a single decision upholding a Terry

stop under similar facts.

         Reaching inside of a car in a gas station parking lot while the station is open for business

is not suspicious. It is simply too ubiquitous and too innocent an action to justify a seizure under

the Fourth Amendment without some other strong circumstance of suspicion.

                Terry does not say that seizures may be undertaken with respect to
                all “ambiguous” conduct; rather, Terry is grounded in the
                proposition that there is “no ready test for determining
                reasonableness other than by balancing the need to search [or
                seize] against the invasion which the search [or seizure] entails.”
                Surely this balancing process, on the invasion side must take into
                account not only the extent of the seizure of the particular suspect
                stopped, but also the degree of risk to innocent persons generally if
                seizures upon this magnitude of suspicion are regularly permitted.
                Surely that is what the Court meant when it said in United States v.
                                                - 27 -
                Sokolow, 490 U.S. 1, 10 (1989), that “the relevant inquiry” is into
                the “degree of suspicion that attaches to particular types of
                noncriminal acts.”

Wayne R. LaFave, Search and Seizure § 9.5(f), at 526 (4th ed. 2004). Succinctly stated, the

confluence of circumstances does not here arise to generate a reasonable, articulable suspicion of

criminal activity. I believe the trial court erred in failing to grant appellant’s motion to suppress.

I respectfully dissent.




                                                - 28 -
