COURT OF APPEALS OF VIRGINIA Present: Judges Kelsey, Petty and Senior Judge Bumgardner Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 0662-07-1 JUDGE D. ARTHUR KELSEY OCTOBER 9, 2007 WALTER EARL JENKINS, IV

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Randall D. Smith, Judge Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on briefs), for appellant. John E. Pappas (Griffin, Pappas & Scarborough, P.C., on brief), for appellee.

The Commonwealth appeals a trial court order suppressing evid ence obtained from Walter Earl Jenkins, IV, following an invest igatory detention. Th e trial court, the Commonwealth argues, applied an incorrect le gal standard and employed an overly demanding test for determining reasonable suspicion. We ag ree. The suppression orde r is reversed and the

case remanded for trial.

I. One evening after midnight, Officer B.C. Sayers was off duty and sitting in his car in the parking lot of Kelly’s Tavern. As Sayers wa s speaking with a friend through his driver’s window, Jenkins pulled his vehicle in front of Sayers. Jenkins was alone in his car. Through an open window, Sayers saw Jenkins hold up a clear, 11⁄2 inch square, plastic baggi e. It appeared to

contain a white substance which the officer im mediately recognized as possible cocaine. Directing his display at Sayers and his friend, Jenkins waved the bag in the air, kissed it, and

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - exclaimed, “Woo” before driving off. “It was ju st totally random,” Offi cer Sayers explained. Not knowing quite what to make of Jenkins’s beha vior, Sayers said he attached no particular significance to it. A police officer for over five years, Sayers te stified he had seen baggies of this “exact” type in numerous drug arrests. Because he su spected the baggie contained cocaine, Sayers followed Jenkins’s car and reported his observati ons to Officer Casianos , an on-duty officer. Officer Casianos stopped Je nkins’s vehicle and disc overed contraband inside. After considering the eviden ce, the trial court granted Je nkins’s motion to suppress the evidence found in his car. Though acknowledging Jenki ns’s behavior as “b izarre,” the court emphasized the display “had no significance at all in the officer’s gathering of facts to develop a reasonable suspicion.” From that premise, the court concluded, “ we’re left with . . . the officer seeing someone hold a baggie full of a white substance.” Jenkins’s counsel hypothesized that the white substance could have been flour, baking soda, or salt. There was no reason, counsel argu ed, to conclude it was anything illegal. The court agreed, reasoning that it should not “infer that every ti me there’s a baggie of white material, that it’s an illegal substance.” While “I don’t know why someone would carry that,” the judge stated, “I suppose somebody could carry any other white substance with them.”

II. The Commonwealth argues the trial court erre d as a matter of law by refusing to consider Jenkins’s bizarre display on the ground that the police officer testified he did not find it significant. The trial court further erred, th e Commonwealth contends, by applying an overly demanding legal standard for reasonable suspicion. On both points, we agree. Objective Legal Standard . In its ruling, the trial cour t emphasized Officer Sayers’s subjective reaction to the “biza rre” waving and kissing of the baggie. An officer’s action is- 3 - reasonable under the Fourth Amendment, however, “r egardless of the indivi dual officer’s state of mind, ‘as long as the circumstances, viewed objectively , justify [the] action.’” Brigham City v.

Stuart , 126 S. Ct. 1943, 1948 (2006) (emphasis in origin al and citations omitted). The standard

is “ purely objective and thus there is no requirement that an actual suspicion by the officer be shown.” 4 Wayne R. LaFave, Search & Seizure § 9.5(a), at 472 (4th ed. 2004) (emphasis in original and footnote omitt ed). For purposes of assessing the objective legality of his actions, an officer’s “subjective motivation is ir relevant.” Robinson v. Commonwealth , 273 Va. 26, 37, 639 S.E.2d 217, 223 (2007) (quoting Stuart , 126 S. Ct. at 1948). Consequently, “the fact that the officer does not have the state of mind which is hypothecated by the reasons which pr ovide the legal justification fo r the officer’s action does not

invalidate the action taken as l ong as the circumstances, viewed obj ectively, justify that action.”

Whren v. United States , 517 U.S. 806, 813 (1996) (quot ing Scott v. United States , 436 U.S. 128, 138 (1978)). Reviewing courts “are not limited to what the stopping officer says or to evidence of his subjective rationale; rather we look to the record as a whol e to determine what facts were

known to the officer and then consider whethe r a reasonable officer in those circumstances would have been suspicious.” United States v. Brown , 232 F.3d 589, 594 (7th Cir. 2000) (citation omitted). 1 For these reasons, Jenkins’s behavior with th e tiny baggie— a bizarre display directed to two complete strangers — should have been cons idered by the trial court irrespective of the police officer’s testimony that he did not understand its significance.

1 See also United States v. McKie , 951 F.2d 399, 403 (D.C. Cir. 1991) (“The Terry standard being one of objective reasonableness, we are not limited to what the stopping officer says or to evidence of his subj ective 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.”).- 4 - Reasonable Suspicion Standard . The Commonwealth also challenges the trial court’s application of the reasonable susp icion standard, contending the cour t erred as a matter of law in holding the uncontested f acts of this case failed to meet that standard. We agree. While an arrest requires probable cause, a mere investigatory stop requires only a “reasonable suspicion” that criminal activity “may be afoot.” United States v. Arvizu , 534 U.S. 266, 273 (2002) (quoting United States v. Sokolow , 490 U.S. 1, 7 (1989), and Terry v. Ohio , 392 U.S. 1, 30 (1968)). The likelihood of criminality “n eed not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard” applicable in other contexts. Id. at 274 (citing Sokolow , 490 U.S. at 7); see also Whitfield v.

Commonwealth , 265 Va. 358, 361, 576 S.E.2d 463, 464-65 (2003) (summarizing standard as a reasonable suspicion the individual “may be involved in criminal activity” (citation omitted)). Consequently, the possibility of an innocent explanation for the conduct does not necessarily forbid an officer from ma king a brief, investigatory stop. See Arvizu , 534 U.S. at 274. Terry itself involved an officer observing Terry and his companions “repeatedly walk back and forth, look into a store window, a nd confer with one another.” Id. “Although each of the series of acts was ‘perhaps innocent in itself,’” collectively they were su spicious enough that a reasonable officer had grounds to stop Terry and his companions for purposes of investigating

the situation further. Id. (quoting Terry , 392 U.S. at 22). Reasonable suspicion, therefore, “need not rule out the possi bility of innocent conduct.”

Id. at 277 (citing Illinois v. Wardlow , 528 U.S. 119, 125 (2000)). “Thus, there may be circumstances where wholly lawful conduct might justify the suspicion th at criminal activity ‘may be’ afoot.” Richards v. Commonwealth , 8 Va. App. 612, 617, 383 S.E.2d 268, 271 (1989) (citations omitted). The Fourth Amendment bars only investigatory detentions based upon “inarticulate hunches” devoid of any ar guably supportive factual basis. Terry , 392 U.S. at 22.- 5 - In this case, it is possible the tiny baggie c ould have contained flour , baking soda, or salt as Jenkins’s counsel speculated. But that abstract possibility w ould not preclude an officer from reasonably suspecting the baggie contained cocaine. 2 See generally Carson v. Commonwealth , 12 Va. App. 497, 502, 404 S.E.2d 919, 923 (1991) (“Alt hough possible, it is highly unlikely that a straw this size would have a legitimate use.”) . In applying the Fourth Amendment, “common sense and ordinary human experience” take precede nce over legal abstractions and rigid criteria. United States v. Sharpe , 470 U.S. 675, 685 (1985). To be sure, the unique circumstances of this case make the cocaine suspicion far more objectively reasonable than Jenki ns’s hypotheticals. Outside a tavern after midnight, Jenkins made an uninvited celebratory display to two comp lete strangers. The 11⁄2 inch square baggie, Officer Sayers observed, was exact ly the type he had seen used by others to package small

amounts of cocaine. 3 When Jenkins kissed the baggi e, waved it around, and pronounced a celebratory “Woo,” he hardly di splayed a level of merriment a ppropriate for a thimble-full of flour, baking soda, or salt. Gi ven the totality of these circum stances, we hold it was objectively reasonable for Officer Sayers to suspect the bagg ie contained cocaine. The trial court erred in holding otherwise.

2 “The possibility of an innocent explanati on does not deprive the o fficer of the capacity to entertain a reasonable suspic ion of criminal conduct. Indeed the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal — to ‘enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to an swer charges.’” 4 LaFave, supra § 9.5(b), at 482 (citations and footnote omitted). 3 See Texas v. Brown , 460 U.S. 730, 742 (1983) (finding “the distinctive character of the balloon itself spoke volumes as to its contents — pa rticularly to the traine d eye of the officer”); Carson , 12 Va. App. at 502, 404 S.E.2d at 922 (holding the “uniqueness of the straw’s size distinguished it from straws one would usually en counter for legitimate pur poses”). We disagree with Jenkins’s position that our holding is in tension with Harris v. Commonwealth , 241 Va. 146, 400 S.E.2d 191 (1991), or Brown v. Commonwealth , 270 Va. 414, 620 S.E.2d 760 (2005). Both involved a probable cause analysis as oppo sed to the presence of the lower reasonable suspicion standard. Neither stands for the propo sition that by merely imagining a legitimate use for the item, any suspicion of illegality thereby becomes unreasonable.- 6 - III. Because Jenkins was lawfully detained, the trial court erre d in suppressing the incriminating evidence discovered during the dete ntion. We thus reverse the trial court’s suppression order and remand the case for trial.

Reversed and remanded.- 7 - Petty, J., concurring. I concur in the result reached by the major ity. I would conclude that the officer’s testimony that he observed the appellant in pos session of a 11⁄2 inch s quare baggie containing white powder at 1:00 in the morning outside a ba r, coupled with the officer’s knowledge that cocaine is often packaged in similar baggies, wa s sufficient to raise a reasonable suspicion that the defendant was in possession of cocaine. Howe ver, because I believe in adherence to the doctrine that “an appellate court decides cases ‘on the best and narrowe st ground available[,]’” Luginbyhl v. Commonwealth , 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (quoting Air

Courier Conference v. Am. Postal Workers Union , 498 U.S. 517, 531 (1991) (Stevens, J., concurring)), I do not believe that we need to ad dress the question of whet her the trial court erred in refusing to consider the appellant’s “celebrat ory behavior” with the baggie of white powder. Accordingly I do not join in that portion of the majority opinion titled Objective Legal Standard

.