COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Decker and O’Brien Argued at Norfolk, Virginia

PATRICK DARNELL HILL OPINION BY v. Record No . 0482-17-1 JUDGE MAR Y GRACE O’BRIEN APRIL 24, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH William S. Moore, Jr., Judge Stephanie J. Pough (Eric O. Mood y and Associates , P.C., on brie f), for appellant. Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney Gener al, on brief), for appellee.

Patrick Darnell Hill (“appellant”) was indicted for possession of a Schedule I or II controlled substance with intent to distribute, third offense, in violatio n of Code § 18.2-248. Appellant filed a motion to suppress evidence recove red during a search of his ve hicle, claiming that police officers improperly seized him and the dru gs found in his car in violati on of his Fourth Amendment rights. The court denied his motion, and appellant enter ed a conditiona l guilty plea t o the lesse r-included offense of possession with intent to distribute as a second off ense, preserving his right to appeal pursuant to Code § 19.2-254. Finding no error in the court’s d enial of appellant’s suppression motion, we affirm.
BACKGROUND In an appeal of the denial of a motion to suppress evidence, w e review the facts in the light most favorable to the prevailin g party, the Com monwealth. Apon te v. Commonwealth, 68 Va. App. 146, 156, 804 S.E.2d 86 6, 870 (2017). So vi ewed, the evidence established that on the afternoon ofPUBLISHED- 2 - April 5, 2016, Detect ives Hunter and Whitson of the Portsmouth Police Department were “investigating some narcotics complaints” in the 600 block of N ewport Avenue in the City of Portsmouth. Detective Hunter h ad been assigned to a unit speci alizing in narcotics transactions for two-and-a-half years of his seven years on the police force. D etective Whitson, a twenty-one-year employee of the police departme nt, had been with the narcotics unit for four years. Both detectives identified the 600 block of Newport Avenue as “a high drug, high crime area.” Detective Whitson testif ied that he had previously “mad e several [drug arrests] in that area, mostly right behind that area.” Detective Hunter confirmed that he had also “been [to] several places in that area . . . about drug sales.” The detectives observed appellant sitting alone in a black Lexus, leaning back in the driver’s seat and “[not] moving around.” The vehicle was parked in fron t of a fence that bordered a “shop of some sort.” The detectives drove their unmarked police car pas t the Lexus and executed a U-turn, without activating their lights or siren. As the detectives ag ain approached the Lexus in their car, appellant looked in their direction. The detectives parked app roximately twenty-five feet away and watched appellant’s car for “a mi nute or so.” During that peri od, the detectives observed appellant make “a bunch of movement inside of the vehicle” by repeatedly “looking up and down.” Detective Hunter testified that based on the character of the location and his experience with drug dealers waiting for their clients in “a secluded area,” he was investigating possible narcotics activity. The detectives, who were wearing police vests and patches, exited their car and started walking toward the Lexus. Appellant again looked in their dire ction and immediately began to engage in more extensive movement inside the car. The detectiv es observed appellant place his left hand on the steering wheel, turn his back and hea d away from th em, and use his right hand to “d[i]g down” next to the driver’s seat. Neither detective was able to see what, if anything, was in appellant’s right hand.- 3 - Concerned for their safety, the detectives verbally identified themselves as police officers and demanded that Hill show his hands. Detective Hunter later told appellant “that he thought [appellant] had a fir earm [based on] the way he was acting and the way he was pulling away, reaching.” Appellant did not obey the detectives’ orders, and his right hand remained out of view. After shouting at appellant “at least ten times” to show his ha nds, the detectives grabbed appellant’s left forearm, physically removed him from the vehicle, and plac ed him in handcuffs. Once appellant was secured, Det ective Hunter looked under the rear portion of the driver’s seat where appellant had been reaching. There, he found a plas tic bag containing individually wrapped rocks of crack cocaine. Appellant was subsequently cha rged with drug possession. Appellant filed a motion to suppress the seized evidence and f ollowing a hearing, the court denied the motion. The court ru led that “the officers acted pr operly and in a co nstitutional manner and had reasonable articulable suspicion for what they did.” O n appeal, appellant’s sole argument is that the detectives lacked reasonable suspicion for an investig ative detention and subsequent search of the vehicle. 1

1 A ppellant’s single assignment of e rror alleges that “his Fourth Amendment rights against illegal search and sei zure were violated [ because] the officers lacked a reasonable, articulable suspicion that [he] wa s engaged in criminal activity when he wa s found in a high crime area and did not respond to the officers’ comm ands to show his hands.” He c hallenges the investigative detention, his removal from the v ehicle, and the “recover[y of] the suspected controlled substance” on this ground. He does not cha llenge the officers’ seizure of the drugs from his car on any other basis. See Commonwealth v. Brown, 279 Va. 235, 240-42, 687 S.E .2d 742, 744-45 (2010) (emphasizing that “[ o]nly questions prese nted in the petition f or appeal will be noticed by the Court of Appeals” and reversing a holdi ng of the Court of Appeals tha t itself reversed a r uling of the trial court on a ground on which the defendant did not assign error, despite his preservation of the issue in the trial court (quoting Rule 5A:12(c))). Additionally, app ellant did not preserve a separate challenge to the seizure of the drugs in the trial court as req uired by Rule 5A:18, and he does not ask the Court on appeal to invoke any exceptions to that rule’s fin ality principles. See Edwards v. Commonwealth, 41 Va. App . 752, 760, 589 S.E. 2d 444, 44 8 (2003) ( en banc ) (stating that the Court “do[es] not consider” an “exception t o the rule sua sponte ”), aff’d by unpub’ d order, No. 040019 (Va. Oct. 15, 2004), cited with a pproval in Jones v. Commonweal th, 293 Va. 29, 39 n .5, 795 S.E.2d 705, 710 n.5 (decl ining to apply sua sponte one of the same exceptions to Rule 5:25, the Supreme Court of Virginia’s counterpart to Rule 5A:18), cert. denied, 1 38 S. Ct. 81 (2017).- 4 - DISCUSSION Upon review of the court’s deni al of a suppression motion, “th e burden is upon [the appellant] to show that the ruling, when the evidence is consid ered most favorably to the Commonwealth, constituted reversibl e error.” Andrews v. Common wealth, 37 Va. A pp. 479, 488, 559 S.E.2d 401, 406 ( 2002) (quoting McGee v. Commonwealth, 25 V a. App. 193, 197, 487 S.E.2d 259, 261 (1997) ( en banc )). “[W]e are bound by the trial court’s findings of historica l fact unless ‘plainly wrong’ or without eviden ce to support them[,] and we g ive due weight to the inferences drawn from those facts by resident judges and local law enforce ment officers.” McGee, 25 Va. App. at 198 & n.1 , 487 S.E.2d at 261 & n.1. We review de novo the application of law to the court’s factual findings. Watts v. Commonwealth, 38 Va. App. 2 06, 213, 562 S. E.2d 699, 703 (2002). Appellant asserts that he was impermissibly seized in violatio n of his Fourth Amendment rights, and as a result, the co caine found by the police office rs should be suppressed. He contends that the evidence, viewed in its entirety, did not support the conclusion that the detectives had a reasonable articulable suspicion sufficient to s eize him and se arch his vehicle.

A. Fourth Amendment Seizures The Fourth Amendment of the Un ited States Const itution, as inc orporated in and applied to the states through the Fourteent h Amendment, guarantees “[t]he right of the people to be secure in their persons, houses, papers, a nd effects, against unreasonabl e searches and seizu res.” A person is not seized according to the Fourth Amendment until he submits t o a police officer’s show of authority. Cochran v. Commonwealth, 258 Va. 604, 608, 521 S.E. 2d 287, 289 (19 99); see also California v. Hodari D., 499 U. S. 621, 625 (1991); McGee, 25 Va . App. at 199, 48 7 S.E.2d at 262 (stating that no seizur e occurs until “an individualis either physically restrained or has submitted to a show of authority”). “[T]hereis no seizure without actual s ubmission; otherwise, there is at most- 5 - an attempted seizure, s o far as the Fourth Amendment is concern ed.” Brendlin v. California, 551 U.S. 249, 254 (2007). We addre ssed the issue of “submission to authority” in Beasley v. Commonwealth, 60 Va. App . 381, 728 S.E .2d 499 (2012). In Beasl ey, although the defendant and another passenger i n a parked vehicle in itially complied with a n officer’s directions to show their hands, they continued to make “furtive movements, ” and the defe ndant began reaching to the side of his seat. Id. at 386-88, 728 S.E.2d at 501-02. We held tha t it was not until the defendant responded to the officer’s third c ommand to keep his hands in h is lap that he was seized for Fourth Amendment purposes. Id. at 394, 7 28 S.E.2d at 505. See also J ones v. Commonwealth, 52 Va. App. 548, 665 S.E. 2d 261 (2008) (holdin g that the defendant was not seized until he stepped out of the vehicle because he did not submit to the detectives’ aut hority until then). Here, appellant did no t comply with the det ectives’ requests to show his hands, and therefore he did not submit to their authorit y while sitting in the vehicle. The detectives were not required to articulate a suspicion of criminal behavior to expl ain their observatio n of appellant and their approach to his vehicle. Although Detectiv es Hunter and Whitson both testified that appellant was sitting in a parked car in an area known for drug transacti ons, and they were specifically investigating narcotics sales i n that location, those facts wer e not necessary to justify their decision to approach the Lexus. Their i nitial interaction with appellan t was constitutionall y permissible; appellant was not seized at that point. No seizu re occurred un til the detectives physically removed him from the vehicle and placed him in handcuffs . It was only then that appellant submitted to their authority and was seized for purpo ses of the Fourth Amendment. B. Reasonable Articulable Suspicion Having determined when the seizure of appellant occurred, we t urn to whether the detectives had a reasonable articulable suspicion that, at the time of the seizure, appellant may have been involved in criminal activity . See Terry v. Ohio, 392 U.S . 1, 27 (1968); see also Jones, 52- 6 - Va. App. at 559, 665 S. E.2d at 267. The Sup reme Court has desc ribed an “articulable suspicion” as a “conclusion that can be expressed in words sufficient to pers uade a reasonable listener to come to a like conclusion.” Mas on v. Commonwealth, 291 Va. 362, 369, 7 86 S.E.2d 148, 152 (2016). However, “‘[a]rticulable’ does n ot mean ‘articulated.’” Id. “ A police officer conducting a stop is not required to precisely and individually articulate the facts that added up to suspicion in his mind.” Id. (quoting United Sta tes v. Brown, 232 F.3 d 589, 594 (7th Cir . 2000)). The test is not what the officer thought, but rather whether th e facts and circumstances apparent to him at the time of the stop were such as to create in the mind of a reasonable officer in the same po sition a suspicion that a violation of the law was occurring or was abou t to occur. Id. at 368, 786 S.E.2d at 151 (ci ting Scott v. United States, 4 36 U.S. 128, 138 (1978)). Additionally, “[t]here is no ‘litmus test’ for reasonable susp icion.” Jones, 5 2 Va. App. at 560, 665 S.E.2d at 267 (altera tion in original) (quoting Harmon v. Commonwealth, 15 Va. App. 440, 445, 425 S.E.2d 77, 79 (199 2)). “Whether an officer has a reasonable suspicion to justify . . . a detention is ‘based on an assessment of the totality of the cir cumstances.’” Branham v. Commonwealth, 283 Va. 273, 280, 72 0 S.E.2d 74, 78 (2012) (quoti ng Harris v. Commonwealth, 276 Va. 689, 695, 66 8 S.E.2d 141, 145 (20 08)). Reasonable susp icion “need not rule out the possibility of innocent conduct.”Raab v. Common wealth, 50 Va. App. 577, 581, 652 S.E.2d 144, 147 (2007) ( en banc ) (quoting United State s v. Arvizu, 534 U.S . 266, 277 (2002)). A “series of acts,” which appear innocent when viewed on an individual basis , may “collectiv ely . . . [be] suspicious enough that a reasonab le officer [will] ha[ve] groun ds to stop [a defe ndant] for purposes of investigating the situation further.” Id. (quoting Arvizu, 534 U.S. at 274). This assessment recognizes “the need [for] split-second decisions” and permits an officer “to view the circumstances confronting him in light of his training and experience.” Atki ns v. Commonwealth, 57 Va. App. 2, 19, 698 S.E.2d 249, 2 57 (2010) (quoting Sc ott v. Commonwealth, 20 Va. App. 725, 727, 460- 7 - S.E.2d 610, 612 (1995)). See also Beasl ey, 60 Va. App. at 397, 728 S.E.2d at 506-07 (holding that when the defendant ignored three commands to keep his hands in his lap, the “accumulating factors, in their totality, provided a reasonable, articulable suspicion that criminal activity was afoot”). If an officer has reasonable su spicion “to believe criminal ac tivity may be afoot,” thereby justifying a stop, and believes that the person “may be armed and dangerous,” the off icer may lawfully conduct a pat-down search for weapons. Lowe v. Common wealth, 33 Va . App. 656, 660-61, 536 S.E.2d 454, 456-57 ( 2000). An officer is also enti tled to conduct a “search [of] the accessible areas of the passenger c ompartment of the car in whi ch a weapon might be hidden” if the officer has reasonable suspicion t hat a lawfully detained suspe ct in a stationary vehicle is armed and dangerous. Stanley v. Commonwealt h, 16 Va. App. 873, 8 75, 433 S.E.2d 512, 514 (1993) (citing Michigan v. Long, 463 U.S. 1032, 1 049-50 (1983)). 2 Further, actions by an individua l prior to a seizure “may both crystallize previously unconfirmed suspicions of crimi nal activity and give rise to le gitimate concerns for officer safety,” thereby permitting det ention and a limited s earch for weapons. Jones, 52 Va. App. at 562, 665 S.E.2d at 268 (quotin g United States v. Davi s, 202 F.3d 1060, 1 063 (8th Cir. 2002)). Additionally, under some circumstances, reasona ble articulable suspicion that an individual possesses a concealed weapon “ ipso facto render[s] him potentially arme d and dangerous” for purposes of permitting both a detention and a limited weapons search. Id. at 560-61, 665 S .E.2d at 267. See also Jones v. Commonwealth, 272 Va. 692, 701 n.3 , 636 S.E.2d 403 , 407 n.3 (20 06) (“[I]t is reasonable for an officer to believe a person may b e armed and dangerous when theperson is suspected of being involved in a drug transaction[ .]” (quoting United States v. Bu stos-Torres, 396 F.3d 935, 943 (8th Cir. 2005))).

2 We note that the Unit ed States Supreme Cour t’s holding in Ariz ona v. Gant, 556 U.S. 332, 346-47 (2009) concerning the scope of vehicle searches inc ident to arrest, did not affect the ongoing validity o f the Long exception per mitting a vehicle sea rch based on officer safety concerns.- 8 - In light of these principles, we find that Detectives Hunter a nd Whitson had reasonable articulable suspicion that appe llant possessed a concealed weap on and was armed and dangerous, justifying appellant’s seizure and subsequent protective search of his vehicle. Wh ile mere presence in a high crime area does not es tablish a reason to detain a su spect, “it is a relevant contextual consideration in a Terry analysi s.” Whitaker v. Commonwealth, 279 Va. 268, 276, 687 S.E. 2d 733, 737 (2010); see also Walker v. C ommonwealth, 42 Va. App. 782, 7 91-92, 595 S.E.2d 30, 35 (2004) (finding defendant’s behavior an d “very nervous” appearance in area known for drug activity, and officer’s concern when appellant refused to remove hand from hi s pocket, justified frisk). Appellant’s presence in a “high- drug, high crime area” was one of several contextual considerations supporting the detectives’ actions. The experienced detectives were specifically “investigating some narcotics complaints” when t hey encountered appellant on a “secluded” part of the street “right [in front of the] area” wh ere Detective Whitson previous ly had made several prior drug arrests. Detective Hunter had a lso “been [to] several places i n that area . . . abo ut drug sales.” Based on his experience, Detective Hunter testified that drug d ealers often wait for their clients in secluded locations; adding to hi s suspicions that appellant was engaged in narcotics activity. We have held that a defendant’s furtive hand gesture in a publ ic place known for narcotics activity is a circumstance which, in and of itself, is insuffic ient to justify a Terry stop. Smith v. Commonwealth, 12 Va. A pp. 1100, 407 S.E.2d 49 (1991); Riley v. Commonwealth, 13 Va. App. 494, 412 S.E.2d 7 24 (1992). In Smith, a police officer observe d the defendant, who was on foot, at night in a playground known for drug activity. I d. at 1102, 40 7 S.E.2d at 51. As the officer’s marked patrol car approached, th e defendant quickly thrust his hand into his pants. Id. The officer stopped, approached the defendant, and tried to search him. Id . As the two men tussled, the officer grabbed at the defendant’s pants and pulled them open, finding a bag of cocaine. Id. We held that “[t]he officer’s observations, s tanding alone, were not suffici ent to justify an investigatory stop and- 9 - search.” Id. at 1104, 407 S.E.2 d at 52. Simila rly, in Riley, we held that a police officer’s observations of a defe ndant walking away from his car in a high -crime area at night, and making a motion toward his waistband, did not amount to a reasonable articulable suspicion. Riley, 13 Va. App. at 497 -99, 412 S.E.2d at 726-27. Unlike the defendants in Smith and Riley, appellant did not mer ely exhibit a single furtive movement in a high crime area. Instead, numerous factors promp ted the investigative detention and subsequent search of the area where appellant was reaching. Th e detectives were responding to specific complaints of narcotics activity and had personal expe rience making drug arrests in the immediate vicinity. Appellant was sitting motionless when the detectives first observed him, and then changed his behavior significantly when he saw them approa ch in their unmarked car. He engaged in “a bunch o f movements inside of [his] vehicle,” look ing “up and down ” repeatedly. When the detectives parked and walked towards him, appellant im mediately turned away and began reaching repeatedly next to his seat, which prompted the detect ives to demand that he show both hands. He “dug down into the s eats,” “tuck[ing] his right hand into the rear bottom of the driver’s seat,” and he refused to show hi s hands despite being told to d o so “at least ten times.” Our decision in Jones, 52 Va. A pp. 548, 665 S.E. 2d 261, where we affirmed the denial of a suppression motion, is instructiv e. In Jones, de tectives appro ached the defendant who was in a vehicle parked outside a hotel k nown for narcotics transactions . Id. at 552-53, 665 S.E.2d at 263. Prior to their approach, the det ectives had observed the defend ant sitting in his car and looking down toward his lap fo r about fifteen minut es. Id. at 552, 665 S.E.2d at 263. The detectives believed Jones could be involved in a narcotics transaction, al though he was no t engaged in any overtly criminal activity. Id. at 552-53, 665 S.E.2d at 263. As the detectives began speaking to him, Jones reached for the floor board of his vehicle. Id. at 5 53, 665 S.E.2d at 26 3. He ignored the detectives’ command to put his hands on the steering wheel and persisted in r eaching down- 10 - underneath the seat. Id. The d etective on the passenger side of the car noticed a large bowie knife behind the seat. Id. at 553-54 , 665 S.E.2d at 264. Jones agai n ignored the detectives’ commands and continued “going down undern eath the seat.” Id. at 554, 66 5 S.E.2d at 264. Jones then exited the car, holding a black zippere d bag that he tos sed onto the d river’s seat. Id. The detectives seized Jones and the bag, wh ich contained drugs and a digital scale. Id. One of the detectives testified that as the defendant was reaching t o the floorboard and ignoring hi s commands, “[m]y concern was that I was going to get shot.” Id. at 553, 665 S.E.2d at 264. We held that Jones was not seized until he stepped out of the vehicle because he did not submit to the detectives’ authority until then. Id. at 557, 66 5 S.E.2d at 265-66. We further held that when the detectives seized Jon es, they had reasonable articulab le suspicion both that he possessed a weapon and that he was armed and dangerous. Id. at 560-64, 665 S.E.2d at 267-6 9. The Court’s analysis focused on J ones’s failure to obey the detectives’ commands to show his hands and his continual reaching under the seat . We specified that “[t]he po tential concealed weapon to which we here refer is not the bowie kni fe . . . [but] the black bag, wh ich Jones retrieved fro m ‘underneath’ the car seat, despite being thrice to ld not to reach under that sea t.” Id. at 561, 665 S.E.2d at 267. We found that Jones’ continued disregard of the detectives’ comman ds, coupled with his repeated attempts to reach toward the floor boards, gave ris e to a reason able suspicion that warranted the seizure. Id. at 560-61, 665 S. E.2d at 267; see also James v. C ommonwealth, 22 Va. App. 740, 745-46, 473 S.E.2d 90, 92 (1996) (concluding that a frisk was c onstitutionally permissible where a passenger exhibited “ jittery” behavior and w as unresponsive to officers’ requests to keep hands in view during a driver’s arrest). Similarly, here, based on thei r initial observations of appell ant, and their knowledge of and personal experience in the area, the detectives suspected that appellant was involved in narcotics activity. As in Jones, the officers did not immediately see ap pellant engage in any overtly criminal- 11 - behavior. The detectives initially observed appellant make “a bunch of movement inside of his vehicle” by “looking up and down.” Upon their approach, the de tectives saw appellant look in their direction and start moving aroun d in his vehicle. The detectiv es repeatedly told appellant to show them his hands. Despite being instructed at least tentimes to put both hands on the steering wheel, appellant continued to “d[i]g down ” next to his seat, with his right hand out of view. Detective Hunter testified that he thought appellant had a concealed fire arm, based on the way he was acting. This concern was objectively reasonable, given the detectives’ familiarity with the prevalence of narcotics transactions in that location, appellant’s initial fu rtive movements, an d most significantly, appellant’s refusal to respond to the detectives’ repeated comm ands to show his hands, which were based on their concern for their own safety. See Harris v. Commonwealth, 241 Va. 146, 149, 400 S.E.2d 191, 193 (1991) (stating that, i n determining whether an officer has reasonable articulable suspicion, “due weight must be given . . . to the specific reas onable inferences which he is entitled to draw from the facts in light of his experience” (quoting Ter ry, 392 U.S. at 27)). The interest in police officer s afety was an important conside ration in the United States Supreme Court’s decision in Terry: We are now concerned with more th an the governmen t interest in investigating crime; in addition, there is the more immediate i nterest of the police officer in taking steps to assure himself that th e person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Ce rtainly it wou ld be unreasonable to require that pol ice officers take unnecessary risks in the performance of their duties. American criminals have a lon g tradition of armed violence, an d every year in this country many law enforcement officers are killed in the line of duty, and thousa nds more are wounded. Terry, 392 U.S. at 23. This justification for an investigative search set forth in 1968 by the United States Supreme Court holds firm today. By the time appellant was seized for purposes of the Fourth Am endment, which did not occur until appellant was physical ly removed from the car, the detectives had reasonable articulable- 12 - suspicion that appellant was inv olved in criminal activity. Th erefore, the investigatory detention, and the search under the rear por tion of appellant’s driver’s s eat, did not violate the Fourth Amendment.
CONCLUSION For the foregoing reasons, we f ind that the court did not err in denying appellant’s motion to
suppress. Affirmed.- 13 - Humphreys, J., dissenting. The First, Fourt h, Fifth, and Sixth Amend ments to the Constitut ion of the United States find their origin in the Virginia D eclaration of Right s of 1776. Th e Fourth Amendment’s parallel protections against warrantless searches and seizures have been enshrined in every Virginia constitution since, cu rrently appearing as A rticle 1, Section 1 0 of the Constit ution of 1971. 3 Therefore, I find it sadly ironic that the shield the Fourth Am endment once provided from warrantless governmental intrusions for the innocent and guilty alike, has been diluted here in the place of its birth to the point t hat the majority today can seriously conclude th at it provides no protection for a citizen, legally parked on a city street at 2: 30 in the afternoon, who is dragged from his car for failing to follow pol ice “commands” that he had no legal obligation to obey and then handcuffed while his vehicle is searched—all based upon his pre sence in what is only generally described as a “high crime, drugarea” and on what even an offi cer involved described as a “hunch” that he might be involved in drug activity. Because I disagree with both the analysis and judgment of the majority, I respectfully dissent. A. Whether Hill was Properly S eized under the Fourth Amendment The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, aga inst unreasonable searches and seizures.” U.S. Const. amend. IV. To constitute a seizure for Four th Amendment purposes, an indiv idual must either be physically restrained or submit to a show of governmental authority. Ford v. City of Newp ort News, 23

3 “The Virginia Declaration of Rights was the first true Bill of Rights in the modern American sense, since it is the first protection for the rights of the individual contained in a Constitution adopted by the peopl e acting through an elected co nvention . . . . [I]ts importance as the source of the federal Bill of Rights may not be overemphasized . . . . Every specific guarantee in the Virginia proposal, save one, late r found a place in the federalBill of Rights which was introduced in the first Congress by Madison as proposed by Virginia herself.”United States v. Payne, 492 F.2d 449, 459-60 (4th Cir. 1974) (Wid ener, J., concurring and dissenting).- 14 - Va. App. 137, 142, 474 S.E.2d 848, 850 (1996) ( citing Californi a v. Hodari D., 499 U.S. 621 (1991)). Since Terry v. Ohio, 39 2 U.S. 1 (1968), Fou rth Amendment jurisp rudence has allowed “brief, investigatory stop[s] w hen the officer has a reasonable , articulable suspicion that criminal activity is afoot.” Bass v. Comm onwealth, 259 Va . 470, 474-75, 525 S.E.2d 921 , 923 (2000) (quoting Terry, 392 U.S. at 30). In reviewing whether there is reasonable suspicion supporting such Terry seizures, the court “must view the totality of the circum stances and view those facts objectively through the eyes of a reasonable police officer wit h the knowledge, training, and experience of the investigating officer.” Murphy v. Commonweal th, 9 Va. App. 1 39, 144, 384 S.E.2d 125, 128 (1989). However, a mere inchoate suspicion or “hunch” is insufficient to establish reasonable suspicion for the pur poses of Terry. See United Sta tes v. Sokolow, 490 U.S. 1 (1989). The majority synthesizes the tes timony of the lead officer, Det ective Hunter, as follows: “based on the character of the lo cation and his experience with drug dealers waiting for their clients in ‘a secluded area,’ [Detective Hunter] was investigating poss ible narcotics activ ity.” With all due respect to my colleagues, they overstate the Commonwealth’s evi dence. The encounter here occurred at 2:30 in the afternoon in a Portsmouth residential n eighborhood, where Hill was legally parked. The entirety of Detectiv e Hunter’s direct examination concerning the reason he and Detective Whitson approach ed Hill is as follows: [M]yself and Detective Whitson wer e patrolling the area of the 600 block of Newport Avenue in the C ity of Portsmouth, which is a high crime, drug area, at whic h time we drove by Newport Avenue and we seen [sic] the Defendantin a black four door Lexus bear ing Virginia tags VGP1307, and he was leaning back inside of the vehicle. We went down to Newport Avenue and made a U-turn and came back up to the intersec tion and approached the subject in the vehicle. Upon approaching Hill’s vehicle , Detective Hunter added only th e following testimony as the basis for seizin g Hill and dragging hi m from his vehicle:- 15 - As we pulled up on the vehicle, w e observed the subject, Mr. Patrick [sic] to my lef t. He kept looking up and down, up and down, and he was constantly doing a bunch of movement inside of the vehicle, at which time we did park the vehicle and get out on foot to make contact. We appro ached the subject on the driver’ s side of the vehicle, at which tim e when we approached the subje ct, he put his left hand on the steeri ng wheel and then he turned h is back. When he turned his bac k and head away from us, he began digging with his right hand between– [interruption by the circ uit court with a request to slow down] - the left hand on the steer ing wheel; he turned his back and hea d away from us. With his righ t hand, he began to dig down between the driver’s seat, so at whi ch time we gave him several commands, “Show us your hands, show us your hands,” and he continued to disobey our orders, at whic h time we opened the driver’s side door and I grabbed the subject by his left forearm in an attempt to give him commands to show me your hands, show me your hands, and he continued to pull away and dig down between the seats. The subject had a strong grip on the steering wheel. It was har d to get his forearm off. Final ly, when he was removed from the vehicle, he was detained by Detective Whitson. After testifying to the above on direct examination, Detective Hunter on cross-examination admitted that the “sum total of why [he] a pproached [Hill’s] ve hicle” was “that he was parked in a high crime area.” When asked if he could articulate any crime he thought Hill was committing, Detective Hunter responded “No.” When asked why he instructed Hill to “show his hands,” Detective Hunter responded, “I h ad no idea what h e was reachingfor.” When asked on cross-examination if it was fair to say that he “just had a hun ch,” Detective Hunter responded “Correct.” When asked what crim e Detective Hunter believed Hil l was committing when he grabbed him, Detective Hunter rep lied that he was “just investi gating.” When asked what he was investigating, Detectiv e Hunter replied “[c]ould have been, you know, narcotics. ” On re-direct examination Detective Hunter testified that he told Hill after he was handcuffed that he thought he may have been reaching for a firearm. Similarly, Detective Whitson testified and agreed with the pros ecutor that he and Detective Hunter approached Hill’ s vehicle because of his presence in a “ high crime, drug area” without- 16 - providing any specifics or details that would support such a co nclusion and that he had made “several” drug arrests, “mostly right behind that area” again w ithout any specifics regarding the quantity or nature of the drugs in volved or the pe riod of time over which these arrests were made. When asked about Hill’s seizure, Detective Whitson testified th at he could not clearly see Hill’s right hand as he was seated in hi s car and after “about ten” co mmands to “show me your hands,” Hill was “forcibly removed.” On cross-examination, Detective W hitson agreed that he never observed Hill do anything illegal prior to his seizure and that he didn’t know what Hill might have been reaching for. Despite Detective Hunter’s testimony agreeing that he “just had a hunch,” the majority holds that the detectives neverth eless articulated sufficient f acts and circumstan ces amounting to reasonable suspicion of crimina l activity. The m ajority relies upon two decisions of this Court it asserts are analogous: Jones v. Commonwealth, 52 Va. App. 548, 665 S.E.2d 261 (2008), and Beasley v. Commonwealth, 60 Va. A pp. 381, 728 S.E.2d 499 (2012)

. In considering any application of the Fourth Amendment to this case, I first note that Hill was certainly not free to leave from the moment the detectives forcibly removed him from his vehicle and thus, whether the fa cts articulated by the detectiv es constitute either reasonable suspicion for an investigative de tention or probable cause for an arrest must be assessed from prior to that point. Thus, pursuant to Terry and its p rogeny, what is at issue in th is appeal is simply whether the totality of the circumstances, as articulated by Detectives Hun ter and Whitson, amount to a reasonable suspicion that a crime had been committed, was in progress, or was about to be committed at the moment Hill was seized and dragged from his ca r. In that respect, both Jones and Beasley are quite distinct from the present case.- 17 - In comparison to the record before us here, the police officers in both Jones and Beasley articulated far more detailed spe cific facts and circumstances supporting reasons t o suspect criminal activity. For example, in Jones, two officers approached while Jones sat in his car at a motel known for drug trafficking. Unlike her e, where no such information w as provided, the officers in Jones provided details supporting that assertion, including the description of a recent arrest in the very same location in which “several kilos of cocaine” were recovere d within the preceding two weeks. Jones, 52 Va. App. at 552, 665 S.E.2d at 26 3. While one office r conversed with Jones, another officer noticed a large bowie k nife in the car within reach of Jones. As the first officer spoke to him, Jones repeatedly reached t oward the floorboard of his car, causing the officer to ask Jones to keep his hands on the steering wheel. Jones temporarily compli ed but then continued to reach down out of the officer’s sight, and the officer repeated his reques t, explaining that if Jones kept reaching down, he would assume he was rea ching for a gun. When Jones be gan to reach down a third time, his actions prompted the officers to order Jones o ut of the veh icle in order to secure the knife and any other weapon. Instead of complying, Jones reached under hi s seat a third time, causing the first officer to draw his weapon. Jones withdrew a long black object , exited the car, and dropped the black object. On inspection, the object was discovered to be a bag containing a portable scale and various illegal drugs. This Cou rt held that Jone s was not seiz ed until he exited the car and that, at that point, the officers had a reasonable articulable suspicion that Jones had a concealed weapon, referring to the black bag. Jone s, 52 Va. App. at 560-61, 665 S.E.2d at 267. In the present case, the “suspicion” of either criminal activit y or the possible existence of a concealed weapon lacks a similar empirical foundation. In a sc enario like Jones , when the occupant of a vehicle, parked in the precise location late at night when and where major drug transactions routinely take place, is clearly i n possession of one weapon, i s specifically told that if he continues to reach down where his hands cannot be seen, the officer will assume he is reach ing for a weapon,- 18 - and then that occupant reaches down and produces a second suspi cious object from a hidden place, it is reasonable for the officers to conclude that second objec t is also a weapon that was previously concealed – a crime unless one has a permit. In contrast here, there was no testimony regarding specific facts and circumstances that would lead a reasonable p olice officer to conclude that an occupied vehicle legally parked in this particular residential area at 2:30 in the afternoon was indicative of criminal activity other than a general characteri zation of the location as a “high crime, drug area,” nor does this record contain any testimony from the officers explaining why Hill’s “bunch of movement” within his vehicle necessarily supported a reasonable conclus ion that he was committing a crime or possessed a weapon. W hile Detectives Hun ter and Whitson had every right to approach Hill’s vehi cle and attempt to c onverse with him abo ut his business there, his mere presence there at that hour even when coupled with Hill’s actio ns in the vehicle, without more of an explanation of the significance of Hill’s presence at that loca tion and time of day to specific criminal activity such as would lead a trained and objective po lice officer to a c onclusion that criminal activity is afoot, wer e insufficient to support a seizure or detention of H ill. The a ddition of the only other factor mentioned by the detectives - that Hill f ailed to obey repeated commands to show his hands does not alter that conclusion since, unlike the situation in Jones, when Hill was ultimately seized, the detectives had seen nothing that reasona bly suggested that Hill was armed. If failure to obey the command of a police officer during a con sensual encounte r in a “high crime” area is now the test for “reasonable suspicion” of crimi nal activity, the encounter is not consensual at all and our oft repeated observation that these e ncounters are by definition consensual because citizens can ignore the officer and just walk away is a s much a legal ficti on as most citizens believe it to be. See e.g. Matth ews v. Commonwea lth, 65 Va. Ap p. 334, 342, 778 S.E.2 d 122, 126 (2015) (“police officers may enga ge in consensual encounters wi th citizens, so long as such- 19 - encounters are those in which a reasonable person would feel fr ee ‘to disregard the police and go about his business’” (quoting Hodari D., 499 U.S. at 628.) The mere fact that Hill ignored c ommands to show his hands - co mmands that he was under no obligation to obey - does not r easonably suggest that he wasarmed. Even if it were the case, without more, such sug gestion would not be e nough to justify Hi ll’s seizure since possessing a weapon is not inherent ly a criminal act. N or was there any tes timony beyond the sheerest speculation that, at the time the officers shouted their comman ds to show his hands, Hill was engaged in any sort of criminal activity. Beasley is equally unsupportive of the majority’s analysis. An officer observed a van containing Beasley and a companion at 3:30 a.m., parked in an area “noted for drug activity, gun violence and homicides,” and clearly marked with a “No Trespass ing” sign. The officer also observed a third person approach ing the van on foot. When the officer saw the van again a few minutes later it now contained th ree people. The officer appro ached the van, and, as he did so, noticed Beasley reach under his shirt, while another passenger in the van simultaneously reached towards the side of his seat. B easley, 60 Va. A pp. at 387, 728 S.E.2d at 502. Theofficer testified that in his “extensive experienc e” the late hour, location, and the specific “furtive movements” of both passengers made the officer fear that one or more of the o ccupants were reachi ng for a weapon, and he directed them to place thei r hands in their laps. Id. The officer had to repeat this order multiple times as Beas ley would initially c omply with each requ est and then later begin removing his hands from his lap. Id. at 38 8, 728 S.E.2d at 502. This C ourt held that the consensual encounter ended and Beasley was seized w hen he finally submitted to the o fficer’s instruction to keep his hands on his lap. Id. at 394, 72 8 S.E.2d at 505. The Beasley Court held that, at that moment, reasonable suspicion of criminal activity already existed justi fying the detention of Beasley because the confluence and totalityof the factors articulated by t he officers that indicated reas onable- 20 - suspicion of criminal activity on Beasley’s part: that the enc ounter involved a vehicle containing three people at 3:30 a.m.; Beasley apparently trespassing in an area clearly poste d “No Trespassing” and known for both drug sales and gun violence; police observation of a third person approaching the van on foot at that late hour; the simultaneous “furtive” movements of the occupants within the van, specifically the continued movements of Beasley’s hands wh ile he was being qu estioned before he was seized; the fact that Beasley began to reach under his s hirt in a manner consistent with the presence of a weapon as an offi cer approached and that also Bea sley appeared to be attempting to discard an object out of the win dow; and finally, the testimony of the officer as to what all of those circumstances signifie d based on his training and experience Id . at 395-97, 728 S.E.2d at 506-07. In Beasley, as in Jones, and un like the case here, the police o fficers provided detailed testimony regarding the location and circumstances surrounding the vehicle and its occupants prior to their seizure which, in totality, supported suspicions that the occupants may be involved in criminal activity. Instructively, the Beasley Court carefully differentiated that case from prior decisions of this Court but di d not and could not overrule them . If anything, Bea sley and Jones demonstrate and reinforce the principle that it is truly the totalityof the circumstances which collectively must amount to an o bjective reason for a police of ficer to suspect criminal activity. In my view, the facts of this cas e have more in common with sev eral other decisions of this Court rejected by the majority . In Riley v. Commonwealth, 13 V a. App. 494, 412 S.E.2d 724 (1992), we reversed a narcotics conviction where the only circumstances articulated were that the suspect was in a “high crime area” and reached toward his waist band. Likewise, in Smith v. Commonwealth, 12 Va. A pp. 1100, 407 S.E.2d 49 (1991), we revers ed a narcotics co nviction where the totality of the circumstances was that the defendant was in an area “known for drug activity” and the officer saw “the defendant q uickly move to p ut his hand int o his pants when the officer’s marked car came into view.” Sm ith, 12 Va. App. a t 1104, 407 S. E.2d at 52. Fina lly, we reversed a- 21 - narcotics and firearm convictio n in Goodwin v. Commonwealth, 11 Va. App. 363, 398 S.E.2d 690 (1990), where the facts articulat ed were simply that defendant “jammed” his hand into his coat pocket upon seeing officers. In contrast to these cases, this Court in Beasley noted that “t he facts [in Beasley] point to far more than a quick, furtive gesture in the presence of the polic e officer that gave the officer no more than a hunch of criminal activit y.” Beasley, 60 Va. App. at 39 7, 728 S.E.2d at 507. However, the facts in the present case fit this description quite well. Our jurisprudence is clear tha t when the facts articulated in t he record are nothing more than a furtive hand motion in a “high crime area,” these bare facts are insufficient to m eet the reasonable, articulable suspicion standard. In this case, I disagree with the majority that the testimony at the suppression hearing supported anything more than the “hunch” De tective Hunter admitted he and his partner were acting on. Even in the light most favorable to the Commonwealth, the total ity of the circumstances that the majority holds support a reasonable suspicion of criminal a ctivity on Hill’s par t are that he was “doing a bunch of movement” and reaching down between the seatsof his vehicle as he was legally parked in a high crime, drug area in the middle of the afternoo n and refused multiple commands by the police to show his hands. While apparently it is of no mom ent to the majority, my concern is that what is lacking in this re cord is any test imony regarding why those facts, in their aggregate, should lead any objective policeofficer to the reasonable conc lusion that Hill w as committing, or about to commit, a crime. Without more detailed testimony r egarding the number and nature of criminal activity occurring at a given location over a recent period of time and the significance of those and other facts as part of the calculus that leads a police officer to a reasonable conclusion that a citizen should be detained to investigate whether they are involved in similar criminal activity, the subjective and- 22 - general characterization of the location that we have in this c ase, is unhelpful to the point of uselessness to trial and appe llate courts in our constitutionalreview of the existence of reasonable suspicion. Moreover, while it may be prudent to do so, unless and until th ey have been arrested or properly detained pursuant to T erry, citizens are not obligated to honor requests or even demands made upon them by police officers. While refusing to comply wi th a police officer’s reasonable request may be a circumstance tha t, along with others, in total ity may amount to reasonable suspicion of criminal activity, wi thout more, such refusal cann ot justify a seizure. In both Jones and Beasley, the fa ilure to obey the officers to show their hands was only one of many circumst ances and in neither cas e, were dispositive of the existence of reasonable suspicion of criminal activity. For exampl e, in Beasley, the late hour a nd his presence in an area noted for both drug sales and gun violence that was clearly marked “No Trespassing,” the a pproach on foot of a third person who entered the van supported a reasonable suspi cion of trespassing, a drug sale or both even before the officers app roached Beasley. The fact tha t the officers chose to initially treat the encounter as consensual and not immediately detain Beasley and his companions for investigation does not alter th e fact that they could have done so consistent with Terry. The simultaneous and similar actions by Beasley and his companion t hat, in their totality, gave rise to a suspicion on the part of police that Beasl ey and his companion were armed were additional circumstances supporting reasonable suspicion but not dispositi ve to the analysis. A similar conclusion flows from an examina tion of the facts in Jones. By contrast, in this caseit is only Hill’s refusal to comply with police demands coupled with the characte rization of the l ocation of Hill’s parking spot as a “high crime, drug area” that the Commonwealth and the majority can point to in support of reasonable suspic ion of criminal activity.- 23 - The safety of police officers when they are inves tigating possible criminal activity is certainly a valid consideration in any Terry analysis with resp ect to a “frisk” or p at down, but when, as here, there is no testimony whatever in the record to sugges t both criminal activity and the presence of a weapon, as was the case in both Jones and Beasley , mere failure to follow “commands” motivated solely by officer safety considerations du ring what the Commonwealth argues was allegedly a consensu al encounter, without more facts and circumstances to support criminal activity than are present in this record, is not a pro per basis to support th e forcible seizure of a citizen. Moreover, “[e]ven in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individuali zed suspicion before a frisk for weapons can be conducted.” McCa in v. Commonwealth , 275 Va. 546 , 554, 659 S.E.2d 512, 517 (2008) (quoting Maryland v. Buie , 494 U.S. 325, 334 n.2 (1990))

. Facts and circumstances may accum ulate during a consensual enco unter until their totality amounts to reasonable suspicion o f criminal activity, but reaso nable suspicion cannot spring forth fully formed from the gut instincts or vague suspicions of a po lice officer. Likewise, if the detectives susp ected that Hill had a weapon, a nd therefore “frisked” him and his vehicle to protect themsel ves, they need to “be able to poi nt to particular facts from which [they] reasonably inferred that t he individual was armed and da ngerous.” Sibron v . New York, 392 U.S. 40, 64 (1968) (emphasis adde d). The record is deficient o n this point as well. Good police work often involves acting on a “hunch” but constit utional consider ations limit how far police officers can go a bout confirming such “hunches.” Experienced and competent police officers often observe things tha t, based upon their extensive training and experience, don’t quite add up but do not rise to the level of reasonable suspicion far less probable cause. Detectives Hunter and Whitson wer e refreshingly honest in their testimony that, in effect they had a “hunch” that Hill’s presence on that afte rnoon warranted further inquir y. They had every right to approach- 24 - Hill and attempt to engage him in conversation concerning his p resence there just as Hill had an equal right to ignore them or just drive away if he so chose. Had the detectives done so, they may well have developed sufficient facts that rose higher than their “hunch” and justified briefly detaining Hill for further investigation consistent with the ho lding of Terry and its progeny, as the officers involved in the Brown and Beasley cases did. The fact that Detectives Hunter and Whitson elected not to do so and instead seize Hill when they did is no t a reason for this Court to lower the constitutional bar requi red to justif y the supposedly narrow ex ception to the probable cause requirement of the Fourth Amendment pursuant to Terry. B. The Search of the Vehicle As the Supreme Court of the Unite d States reiterated in Arizona v. Gant, 556 U.S. 332, 346-47 (2009), “Michigan v. Long , 463 U.S. 1032 ( 1983), permits an officer to search a vehicle’s passenger compartment [only] ‘wh en he has reasonable suspicion that an individual .



### . . is “dangerous” and might access the vehicle to ‘gai n immediate control of weapons .’ Id., at 1049 (quoting Terry v. Ohi o, 392 U.S. 1, 21 (19 68)).” Although Hillalso challenges the search of his vehicle, in addition to his detention, he does not raise any is sue with respect to the application of Long to this case and I agree wi th the majority that we need no t consider the search of the vehicle beyond whether it improperly re sulted from a lack of reasonablesuspicion to detain Hill in the first place. C. Conclusion In my view, with today’s decision, this Court has given licenseto police officers to detain anyone who refuses to comply w ith any order given during a “con sensual” encounter so long as it takes place in a “high crime area,” which now seems to be the a pproximate area where any crime has ever occurred. B ecause such latitude in police-citizen enc ounters is wholly incompatible with Fourth Amendment jurisprudence from the United S tates Supreme C ourt and, prior to today, from- 25 - this Court, I dissent f rom the analysis and judgment of my coll eagues. Instead, I would hold that the evidence, even in the light most favorable to the Commonwealth, supports no more than the “hunch” Detective Hunter testifi ed that he and Detective Whitso n were acting on and is insufficient as a matter of law to constitute reasonable suspi cion of crimin al activity. Therefo re, I would reverse the judgment of the circuit court in this case for the reasons stated and remand for a new trial if the Commonwealth is so advised.