COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Clements and McClanahan Argued at Richmond, Virginia

RICHARD CALVERT CROSON MEMORANDUM OPINION ∗ BY v. Record No. 0935-06-2 JUDGE ELIZABETH A. McCLANAHAN JULY 24, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY George Mason, III, Judge 1 Joseph A. Sadighian, Senior Assi stant Appellate Defender (Office of the Appellate Defender, on briefs), for appellant. Jonathan M. Larcomb, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Richard Calvert Croson (Croson) was convicted in a bench trial of felony possession of cocaine in violation of Code § 18.2-250. On appeal, he argues he was seized in violation of the Fourth Amendment and contends the trial court erred in denying his motion to suppress. We affirm the trial court.
I. BACKGROUND On appeal, we review the evidence in the “ light most favorable” to the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citations omitted). That principle requires us to “discard the eviden ce of the accused in conf lict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 With the exception of the entry of the se ntencing order entere d on March 20, 2006, from which this appeal was officially taken, the Honorab le Ernest P. Gates, Ju dge Designate, presided over the proceedings addressed in this opinion.- 2 - all fair inferences that may be dr awn therefrom.” Kelly v. Commonwealth , 41 Va. App. 250, 254, 584 S.E.2d 444, 446 (2003) ( en banc ) (internal quotation marks and citations omitted)

. So viewed, while on patrol at 5:45 a.m., Deputy Dunavant was exiting a commuter lot when he observed a man and woman running down a public road. According to Dunavant, the woman was “apparently running af ter” and “screaming after” Cr oson. Dunavant then entered onto the public road and made a u-turn at a tr affic light. Croson “stopped running” and “went into a walk.” When Dunavant “pulled around, [h e] noticed that [Croson] was unsteady on his feet.” Dunavant stopped his vehicle directly in front of Croson with his lights and siren activated. In the meantime, the woman “veered off and cut through a back yard.” Dunavant exited his vehicle, approached Croson, a nd asked Croson “exactly what was going on.” Observing Croson smelled of alcohol, his face was flushed, and he was unsteady on his feet, Dunavant arrested Croson for public intoxicati on. Upon searching Croson, Dunavant discovered a glass tube containing burnt cocaine residue. After a bench trial, Croson was found guilty of cocaine possession. At trial, Croson moved to exclude the eviden ce found during the sear ch arguing the initial stop was unlawful. The trial court ruled the enco unter was consensual and denied the motion to

suppress. II. ANALYSIS On appeal, Croson contends the trial cour t erred in denying his motion to suppress because the stop constituted an unlawful seiz ure in violation of the Fourth Amendment. 2

When we review a trial cour t’s denial of a motion to s uppress, “the burden is upon the defendant to show that the ruling, when the ev idence is considered most favorably to the

2 Because we conclude Dunavant possessed a reasonable, articulable suspicion of criminal activity to ju stify a seizure, we need not consider Croson’s argument the encounter was not consensual.- 3 - Commonwealth, constituted reversible error.” McGee v. Commonwealth , 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) ( en banc ) (internal quotation marks and citation omitted). Where a Fourth Amendment challenge is at issue, “‘[u] ltimate questions of re asonable suspicion and probable cause to make a warran tless search’ involve questions of both law and fact.” Id. at 197-98, 487 S.E.2d at 261 (quoting Ornelas v. United States , 517 U.S. 690, 691 (1996)). Thus, “we give deference to the factual findings of th e trial court but independently decide whether, under the applicable law, the manner in which the challenged evidence was obtained satisfies constitutional requirements .” Jackson v. Commonwealth , 267 Va. 666, 672-73, 594 S.E.2d 595, 598 (2004). A mere investigatory stop requires only a reas onable suspicion that criminal activity may be afoot. United States v. Arvizu , 534 U.S. 266, 273 (2002). “[A] person may be detained briefly for questioning by an officer who has ‘ “a reasonable suspicion, based on objective facts, that the individual is involved in crim inal activity.”’” Zimmerman v. Commonwealth , 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988) (quoting Leeth v. Commonwealth , 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982) (quoting Brown v. Texas , 443 U.S. 47, 51 (1979))). “[W]hen a court reviews whether an officer had reasonable suspici on to make an investigatory stop, it must view the totality of the circumstan ces and view those facts obj ectively through the eyes of a reasonable police officer with the knowledge, training, and experience of the investigating officer.” Murphy v. Commonwealth , 9 Va. App. 139, 144, 384 S.E.2d 125, 128 (1989). Dunavant observed a woman running after a nd yelling at Croson on a public road at 5:45 a.m. When Dunavant pulled his vehicle ar ound to investigate, he observed Croson unsteady on his feet. Viewing the evidence in the light most favorable to the Commonwealth and the totality of the circumstances, Dunavant had an articulable, reasonable basis to suspect Croson- 4 - was intoxicated in public. Theref ore, the stop was lawful and the trial court correctly denied the motion to suppress. Accordingly, we affirm his conviction. Affirmed.