COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 1899-02-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JANUARY 10, 2003 

TERRENCE LINWOOD LOCKETT 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge Designate 

 Jennifer R. Franklin, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellant. 

 Carolyn V. Grady (Epperly, Follis & Schork, 

PC, on brief), for appellee. 

 The grand jury for the City of Richmond indicted Terrence 

Linwood Lockett (defendant) for possession of heroin in violation 

of Code § 18.2-250, possession of cocaine with intent to 

distribute in violation of Code § 18.2-248, and possession of 

cocaine with intent to distribute within 1000 feet of a school in 

violation of Code § 18.2-255.2. Defendant filed a motion to 

suppress evidence seized from him on the ground that the police 

lacked a reasonable articulable suspicion to detain him. The 

trial court granted the suppression motion, and the Commonwealth 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
appeals. For the following reasons, we reverse the trial court's 

suppression ruling. 

I. 

 On the evening of October 21, 2001, Officers Chuck Howell 

(Howell) and Robert Sprinkle (Sprinkle) of the Richmond City 

Police Department were on routine patrol as members of the drugs 

and weapons unit. The officers arrived at the Creighton Court 

apartment complex at approximately 8:30 p.m. as part of an 

effort to surprise "anyone who was dealing drugs" in the 

neighborhood, which was "known for its numerous drug 

activities." They parked at the southern end of the complex and 

were walking north when they noticed a group of individuals in a 

"cut" between two apartment buildings. The property was marked 

by "No Trespassing" signs on each building. Although the 

officers were familiar with the residents of the area, they did 

not recognize anyone in the group. Based upon his training and 

experience, Howell suspected that a drug transaction "was going 

to occur or had occurred." However, neither officer saw any 

drug activities or exchanges. 

 Howell and Sprinkle continued walking toward the group. At 

that point, defendant "looked in [the officers'] direction" and 

immediately "took off running" in the opposite direction. As he 

chased defendant, Howell saw him drop something. Howell 

retrieved the discarded item, which he later discovered was a 

digital scale. 

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 Howell yelled at defendant to stop, and he "got on the 

ground." Sprinkle handcuffed defendant and did a "pat down" 

search for weapons. No weapons or drugs were found at that 

time. Howell did not tell defendant that he was under arrest, 

and Sprinkle told defendant "you're not under arrest, [you're] 

under investigative detention until we can figure out . . . 

what's going on." 

 Sprinkle took defendant to the officers' car and questioned 

him. Defendant said he did not live at Creighton Court and 

could not give a reason for being there that evening. Sprinkle 

arrested him for trespassing and in a search incident to the 

arrest found drugs and a cellular telephone. 

 The trial court ruled, 

I understand why the officers did what they 

did. But . . . [u]nder the evidence that 

has been presented to this Court, I do not 

find the facts to rise to a reasonable 

articulable suspicion that a crime has 

occurred or even that a crime is about to 

occur, and I grant the motion to suppress. 

The Commonwealth appeals this ruling. 

II. 

 When reviewing the ruling on a suppression motion, we 

consider the evidence most favorably to the prevailing party 

below, according deference to the decision of the trial court, 

with the burden to show reversible error resting upon the 

appellant, the Commonwealth in this instance. See Wallace v. 

Commonwealth, 32 Va. App. 497, 501, 528 S.E.2d 739, 740 (2000); 

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Miller v. Commonwealth, 16 Va. App. 977, 979, 434 S.E.2d 897, 

899 (1993). "While we are bound to review de novo the ultimate 

questions of reasonable suspicion and probable cause, we 'review 

findings of historical fact only for clear error and give due 

weight to inferences drawn from those facts by resident judges 

and local law enforcement officers." Davis v. Commonwealth, 35 

Va. App. 533, 538, 546 S.E.2d 252, 255 (2001) (citing Ornelas v. 

United States, 517 U.S. 690, 699 (1996)). 

 A police officer may constitutionally conduct a brief, 

investigatory stop when the officer has a reasonable, 

articulable suspicion that criminal activity may be afoot. See

Terry v. Ohio, 392 U.S. 1, 30 (1968). "A reasonable suspicion 

is more than an unparticularized suspicion or hunch. Reasonable 

suspicion, while requiring less of a showing than probable 

cause, requires at least a minimal level of objective 

justification for making the stop." Bass v. Commonwealth, 259 

Va. 470, 475, 525 S.E.2d 921, 923 (2000) (citing United States 

v. Sokolow, 490 U.S. 1 (1989)). "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 (citing United States v. 

Cortez, 449 U.S. 411, 417-18 (1981)). 

 This case is controlled by Illinois v. Wardlow, 528 U.S. 

119 (2000). We note that at the suppression hearing in the 

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trial court, neither party referenced this decision. In 

Wardlow, the Supreme Court said, 

An individual's presence in an area of 

expected criminal activity, standing alone, 

is not enough to support a reasonable, 

particularized suspicion that the person is 

committing a crime. But officers are not 

required to ignore the relevant 

characteristics of a location in determining 

whether the circumstances are sufficiently 

suspicious to warrant further investigation. 

Wardlow, 528 U.S. at 124 (citing Brown v. Texas, 443 U.S. 47 

(1979)). Furthermore, unprovoked flight can provide a basis for 

suspicion. "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. . . . 

Flight, by its very nature is not 'going about one's business'; 

in fact, it is just the opposite." Id. at 124-25 (quoting 

Florida v. Royer, 460 U.S. 491, 498 (1983)). 

 In the instant case, defendant was standing with a group of 

individuals who were not apartment residents in an area marked 

with no trespassing signs. At trial, defendant conceded that 

the neighborhood was a known drug area. Although the officers 

did not specifically see drugs or money change hands, their 

training and experience led them to believe that a drug 

transaction "was going to occur or had occurred." These 

circumstances and defendant's unexplained and unprovoked flight 

mirror the facts in Wardlow. "A determination that reasonable 

suspicion exists . . . need not rule out the possibility of 

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innocent conduct." United States v. Arvizu, 534 U.S. 266, 277 

(2002). To the contrary, police officers are permitted to 

detain individuals "to resolve the ambiguity." Wardlow, 528 

U.S. at 125. Accordingly, the trial court's ruling is reversed, 

and the case is remanded to the trial court for trial. 

Reversed and remanded.

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Benton, J., dissenting. 

 The trial judge found that "the facts [failed] to rise to a 

reasonable articulable suspicion that a crime has occurred or 

even that a crime is about to occur," and he suppressed the 

evidence. Viewed in the light most favorable to Terrence 

Linwood Lockett, who prevailed at the suppression hearing, 

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

47, 48 (1991), a significant aspect of the circumstances on 

which the police officer based his conclusion of criminal 

activity was proved not to be true. 

 The police officers seized Lockett, told Lockett he was 

being detained for trespassing, and initially arrested Lockett 

for trespassing. The police officer testified, however, that 

when he saw the men he suspected the men had engaged in a 

narcotics transaction or were about to engage in a narcotics 

transaction. The officer's testimony included the following: 

Q: Was there anything else besides the fact 

that they were standing there that supported 

your suspicion? 

A: Based on the demeanor -- Scratch that. 

Based on the way that they were standing-- 

and I have actually surveyed a lot of drug 

transactions--and like I have testified 

before, either a drug transaction had 

already occurred or was about to occur. 

* * * * * * * 

Q: They were standing in an open area. 

Correct? 

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A: Yes. 

Q: They weren't huddled over each over. 

Right? 

A: Were they what now? 

Q: They weren't huddled over each other. 

Right? They weren't in a little circle. 

Right? 

A: I don't remember how they were standing. 

Q: You have no idea how they were standing, 

do you? 

A: No. 

Q: And it's a hunch that you thought, based 

on your training and experience, that there 

was something about to occur because of 

things that occurred there in past. 

Correct? 

A: Correct. 

 If we assume, as we must, that the trial judge resolved 

these facts against the Commonwealth, see McGee v. Commonwealth, 

25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) 

(holding that "we are bound by the trial [judge's] findings of 

historical fact unless 'plainly wrong' or without evidence to 

support them"), then the evidence proved that the officer indeed 

acted upon a "hunch" when he determined that criminal activity 

had occurred or was about to occur. Moreover, the trial judge 

was not required to believe, neither are we, that flight alone 

is a sufficient basis to make a Terry detention. The Supreme 

Court has specifically noted that flight "is not necessarily 

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indicative of wrongdoing," even if "it is certainly suggestive 

of such." Illinois v. Wardlow, 528 U.S. 119, 124 (2000). 

 Whether the object the officer seized during the chase was 

discarded by Lockett or inadvertently dropped is also part of 

the totality of the circumstances. Again, we must view this 

evidence in the light most favorable to Lockett. The only 

evidence on this issue is the officer's testimony that Lockett 

"dropped" a "darkened colored object" during the chase. He did 

not testify that Lockett threw it or made a motion to discard 

it. The officer recovered the object, which he did not 

recognize, and did not examine it until after he seized Lockett. 

Because the trial judge did not rule that Lockett discarded the 

object and he ruled in Lockett's favor, we must view the 

evidence as establishing that the object merely dropped while 

Lockett ran. In addition, that object, which the officer did 

not even examine until Lockett "was in handcuffs," was not 

articulated to be part of the basis for the detention. 

 The evidence also proved that after the officers seized 

Lockett they put handcuffs on him for their safety. The officer 

told Lockett that he was being seized for an "investigative 

detention for trespassing." After the officers questioned 

Lockett, they "arrested [him] for trespassing." Only then, 

during a search incident to that arrest, did the officer find 

cocaine and arrest Lockett for possession of the cocaine the 

officer found during the search. 

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 When we strip from the totality of the circumstances any 

reliance upon the officer's testimony that the assembly of men 

was indicative of a past or future drug transaction and view the 

facts as the trial judge did, i.e., that the officer's testimony 

proved no more than men "gather[ed] . . . to talk," the evidence 

proved the officers acted on a "hunch." Moreover, the evidence 

proved that the officers told Lockett, when they detained him, 

that he was being investigated for trespassing. They said 

nothing to him about narcotics before they searched him. The 

totality of these circumstances supports the trial judge's 

ruling. As the Supreme Court has held, "[w]hen . . . a stop is 

not based on objective criteria, the risk of arbitrary and 

abusive police practices exceeds tolerable limits." Brown v. 

Texas, 443 U.S. 47, 52 (1979). 

 For these reasons, I would hold that the evidence failed to 

prove a reasonable articulable suspicion of criminal activity 

and, therefore, I would affirm the suppression order. 

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