COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Alston and Senior Judge Willis Argued at Richmond, Virginia

ANTHONY JERRY FIELDS, S/K/A ANTHONY JERRY FIELDS, SR. MEMORANDUM OPINION * BY v. Record No. 0719-09-2 JUDGE JERE M. H. WILLIS, JR.

JULY 27, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Richard D. Taylor, Jr., Judge Catherine French, Supervising Assistant Public Defender, for appellant. Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.

On appeal from his bench trial conviction of possession of cocaine, Anthony Jerry Fields contends the trial court erred in denying his mo tion to suppress evidence obtained by the police upon stopping him. Specifically, he argues th e police seized him w ithout a reasonable, articulable suspicion of criminal activity, in vi olation of the Fourth Amendment. We disagree and affirm hi s conviction.
BACKGROUND Upon appeal of a trial court’s denial of a motion to suppres s, “‘[t]he burden is upon [the appellant] to show that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.’” McGee v. Commonwealth , 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) ( en banc ) (quoting Fore v. Commonwealth , 220 Va. 1007,

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - 1010, 265 S.E.2d 729, 731 (1980)). “Since the constitutionality of a . . . seizure under the Fourth Amendment involves questions of law and fact, we give deference to the factual findings of the trial court but independently decide whether, un der the applicable law, the manner in which the challenged evidence was obtained satisf ies constitutional requirements.” Jackson v. Commonwealth , 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). On October 1, 2008, Officer Austin Lee Darnel l observed Fields walking in the middle of Saint James Street on Richmond Redevelopment Housing Authority (RRHA) property. Fields’ presence in the street caused a car to brake to avoid striking him. Darne ll approached Fields and ordered him to stop, get out of the roadway, and come to the sidewalk. Darnell obtained Fields’ identifying information and determined he was ba rred from the property. The officer arrested Fields for trespassing and, during a search incident to the arrest, discovered in Fields’ pocket a glass smoking device containing cocaine residue.
ANALYSIS Fields argues that Darnell had no lawful basis to detain him, that his detention was thus unlawful and violative of his Fourth Amendment right to be free from unreasonable seizure, and that the information and evidence derived from that seizure should have been suppressed. “If a police officer has reasonable, articulable suspicion that a person is engaging in, or is about to engage in, criminal activity, the offi cer may detain the suspect to conduct a brief investigation without violating the person’s Fo urth Amendment protectio n against unreasonable searches and seizures.” McGee , 25 Va. App. at 202, 487 S.E.2d at 263. Reasonable suspicion is “‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.” Ornelas v. United States , 517 U.S. 690, 696 (1996) (quoting United States v. Cortez , 449 U.S. 411, 417-18 (1981)).- 3 - Code § 46.2-928 provides: Pedestrians shall not use the roadways for travel, except when necessary to do so because of the absence of sidewalks which are reasonably suitable and pa ssable for their use. If they walk on the hard surface, or the main travelled portion of the roadway, they shall keep to the extrem e left side or edge thereof, or where the shoulders of the highway are of sufficient width to permit, they may walk on either shoulder thereof. Code § 46.2-100 defines “roadway” as “that por tion of a highway improved, designed, or ordinarily used for vehicular tr avel, exclusive of the shoulder.” “Highway” means the entire width between the boundary lines of every way or place open to the us e of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys, and, for law-enforcement purposes, (i) the entire width between the boundary lines of all pr ivate roads or private streets that have been specifically design ated “highways” by an ordinance adopted by the governing body of the county, city, or town in which such private roads or street s are located and (ii) the entire width between the boundary lines of every way or place used for purposes of vehicular travel on any property owned, leased, or controlled by the United States government and located in the Commonwealth. Id. Fields argues that because the roadway on which he walked was private RRHA property and not open to the public, his presence in the roadway was not a violation of Code § 46.2-928. However, Code § 46.2-1307 permits localities to “adopt ordinances de signating the private roads, within any residentia l development containing 100 or more lots, as highways for law-enforcement purposes.” City ordinance, Richmond Code § 2005-269-2006-44, specifically provides in section 1 for the closure “to public use” of inter alia Saint James Street, and in section 3 designates the street a highway for law-enforcement purposes. Fields focuses his argument on section 2, which sets forth conditions on the closure, but does not limit section 3. Thus, if closed by the ordinance, the street was coincidentally designated a highway for law-enforcement purposes.- 4 - The trial court stated that it did not consider the ordinance in deci ding the case. Fields argues that because “[t]he trial court did not consider the ordinance as a basis for denying the motion to suppress,” this Court “cannot affirm the trial court’s decision on the basis of the ordinance.” However, our examination of the re cord “is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling.” Bolden v. Commonwealth , 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008). In determin ing whether the evidence supports the trial court’s judgment, we must consider ‘“a ll the evidence’” contai ned in the record. Hamilton v. Commonwealth , 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010) (quoting Bolden , 275 Va. at 147, 654 S.E.2d at 586). In this case, that includes the ordinance. Regardless of the ordinance, the record in this case establishes that when Fields was stopped, the roadway on which he walked was, to all appearances, open to the use of the public for purposes of vehicular travel and was thus , on its face, a highway for law-enforcement purposes. His presence in the street required evas ive action by a vehicle. This provided Darnell with a reasonable, articulable suspicion that Fields was viol ating Code § 46.2-928, justifying his detention of Fields for investig ative inquiry. Accordingly, we fi nd no error with the trial court’s denial of Fields’ motion to suppress a nd affirm the trial court’s judgment. Affirmed.