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

GARRETT LAMAR PORTER MEMORANDUM OPINION * BY v. Record No. 0189-18-1 JUDGE RICHARD Y. ATLEE, JR. JULY 30, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Joel P. Crowe, Judge 1 W. McMillan Powers, Assistant Public Defender, for appellant. Victoria Johnson, Assistant Atto rney General (Mark R. Herring , Attorney General; Rachel L. Yates , Assistant Attorney General, on brief), for appellee.

The Circuit Court of the City of Portsmouth f ound appellant Ga rrett Lamar Porter guilty of possession of heroin with inten t to distribute. On appeal, Porter argues that the circuit court erred in denying his motion to suppress because the evidence wa s obtained through a search that violated Porter’s Fourth Amendme nt rights. For the following r easons, we reverse. I. B ACKGROUND On appeal, we view the evidence in the light most favorable to the Commonwealth, the party who prevailed before the c ircuit court. Clanton v. Commo nwealth, 53 Va. App. 561, 564 (2009) ( en banc ).

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Judge Johnny E. Morrison presided over both the hearing on the motion to suppress and trial; however, Judge Crowe pres ided over sentencing, and signe d both the final conviction and sentencing orders.UNPUBLISHED- 2 - While on patrol, Officers Adams and Siniscalchi of the Portsmo uth Police Department, as part of their routine, went to obs erve a “hot spot” near the Ho wie’s Food Mart on the corner of Dixie Avenue in Portsmouth. The p olice had previously received numerous complaints about this area and had made “drug a rrests, recovered firearms, and e ven found caps” of narcotics on the ground in that area. Adams, w ho frequently testified as anexpert in narcotics, said that, based on his training and experien ce, the location was known as an “open-air drug market” and qualified as a “high crime and drug” area. There were also fre quent complaints of trash piling up. Adams explained that the offi cers would observe from a dis tance, and if nothing seemed amiss, would continue on their patrol. On this occasion, Adams and Sinis calchi were in one vehicle ob serving; two additional pairs of officers were also pres ent in the area. Adams observe d Porter approach and speak with two individuals on the corner. O ne of the men noticed the patr ol vehicle, and the officers decided to approach and speak w ith the men. Adams explained to them that there were complaints about the scattered trash and said that the men need ed to get a bag a nd clean it up. Adams was familiar with the two men Porter approached and had n umerous prior contacts with them, but he did not recognize Porter. Adams sai d to Porter, “[h]ey I don’t know you. What’s your name?” Porter re plied “John Saunders.” Adam s asked for “Saunders’s” date of birth and social security num ber. Porter provided only thre e digits of his social security number and said he did not know the rest. Adams noted that “wh en I asked him his Social, he didn’t know it. Now, all of a s udden, he doesn’t want to be pa rt of this engagement.” Adams, based on his training and experience, testified that Porter not providing a full social security number, along with Porter’s cha nge in demeanor from being coope rative to withdrawing from the interaction, “usually mean t” an individual had one or more warrants out for their arrest.- 3 - Porter started to walk away so A dams told him to “hang tight fo r a minute.” Further, Adams testified that he “might have made the statement to him, you know, generally, once he gave me his Social, you know, ‘Ha ng tight, because I’m walking back to my car to run it. If you have no warrants, you’re on your w ay, awesome, no harm, no foul .’” Adams returned to the police cruiser to look up the info rmation Porter provided, whil e Siniscalchi continued to speak with Porter. No information came back on the information Porte r provided, meaning there were no notes, prior contacts, arrests , or traffic tickets in the sy stem matching that identification. This, in Adams’s experience, was unusual and suggested to him that Po rter provided false information. Adams returned to speak with Por ter. While there, he saw a ca p from a syringe on the ground and noted aloud to Porter th at “these are the type of th ings . . . . There is a top of a needle right here on the ground.” 2 Porter walked over and went to pick it up. Adams told Porter , “Hey, don’t pick that up. It’s dirty, and just relax.” As Porter re ached for the needle cap, Adams saw “[w]hat appeared to be a bag of hero in” start to fall from Port er’s right sweatshirt sleeve. Although Adams could not see the w hole bag, he observed that it contained at least twenty to twenty-five capsules. Adams watched Porter “stead ily . . . trying to back up” from t he officers while making a flicking motion with his hand to ge t the bag back up his sleeve . Adams believed Porter did not know that Adams had seen the ba g and thus kept his tone friendl y so the situation would not escalate. He asked for Porter’ s name again, and asked if he ha d any weapons on him. Adams told Porter “I’m just going to pa t you down.” Porter continued to back up. Adams reached for Porter’s sleeve; Porter resist ed and pulled away. Adams “ended up taking Mr. Porter to the

2 Although Adams did not elaborate , it seems he was pointing to this as an example for why law enforcement received compl aints about the area and why the trash needed to be contained.- 4 - ground” in order to retrieve t he bag containing heroin. The ba g was later confirmed to contain sixty-four capsules of heroin. Porter filed a motion to suppre ss the evidence on the grounds that Porter was unlawfully seized at the time Adams saw th e bag of heroin. The parties ap peared for a hearing on the motion to suppress, which the j udge denied. The circuit court granted a subsequent motion to vacate because it came to light that the presiding judge had pr eviously represented Porter decades ago. Upon rehearing by another judge from the circuit court, Porter’s motion to suppress was again denied. Duri ng these hearings, and again at trial, the circuit court observed body camera footage from Adams’s encounter with Porter, althoug h this footage was never entered into evidence and is not a part of the record on appeal . After trial, the circuit court convicted Porter of possession of he roin with intent to distrib ute. Porter received a sentence of eight years in prison, with three y ears suspended. This appeal followed.
II. ANALYSIS This case turns on a narrow issu e: was Porter seized for Four th Amendment purposes when Adams told him to “hang tight for a minute” while going to look up the identification information Porter provided. I f so, the officers would have ne eded reasonable suspicion that criminal activity was afoot or pr obable cause in order for that seizure to be lawful. Ewell v. Commonwealth, 254 Va. 214, 216-17 (1997). Porter acknowledges that, prior to Adams saying “hang tight,” t he encounter was consensual. Because the standard for probable cause is more de manding than that for a brief seizure based upon reasonable suspicion, we focus our analysis on the latter. See id. at 217 (“In order to justify the brief se izure of a person by an investigat ory stop, a police officer need not have probable cause; however, he must have ‘a reasonable suspic ion, based on objective facts,- 5 - that the [person] is involved in c riminal activity.’” (alterati on in original) (quoting Brown v. Texas, 443 U.S. 47, 51 (1979))). “When a court reviews whether an officer had reasonable suspic ion to temporarily detain a person, it must view the total ity of the circumstances and vi ew those facts objectively through the eyes of a reasonable police officer with the knowledge, tra ining, and experience of the investigating officer.” Matth ews v. Commonwealth, 65 Va. App. 334, 346 (2015). “To establish reasonable suspicion, an officer m ust be able to articulate mor e than an unparticularized suspicion or ‘hunch’ that crim inal activity is afoot.” Rudolph v. Commonwealth, 277 Va. 209, 210 (2009). Here, the only evidence of c riminal activity Adams possessed a t the time he made the “hang tight” request was that Po rter was present in a high crim e and drug area and that he did not know his social security number. Adams did not yet know that P orter had provided a false name or observe the bag of heroin until after making that request. Although these circumstances, in Adams’s experience, indicated a possible attempt to evade a war rant for arrest, we cannot say that it is sufficient to provide reasonable suspicion that Port er was engaged in criminal activity. We thus must consider whether Adams’s words, as well as other c ircumstances, made it so that a reasonable person in Porter’s s ituation would not feel free to leave. Whether “evidence was seized i n violation of the Fourth Amendm ent presents a mixed question of law and fact.” Id. Thus , “an appellate court must give deference to the factual findings of the circuit court a nd give due weight to the infere nces drawn from those factual findings; however, the appellate c ourt must determine independe ntly whether the manner in which the evidence was obtained m eets the requirements of the F ourth Amendment.” Robertson v. Commonwealth, 275 Va. 559, 563 (2008).- 6 - “A seizure occurs when by physic al force or show of authority and submission thereto, an individual’s freedom of movement is restrained and the person i s not free to leave.” Washington v. Commonwealth, 29 Va. App. 5, 10- 11 (1999). Our Supreme Cour t has previously held that a defendant was not seized when an of ficer “put a big floodlight on [the defendant and his companion] . . . and told [them] to come here, said you two, co me over here,” and then asked for identification and if they ha d been drinking. Baldwin v. Commo nwealth, 243 Va. 191, 194 (1992) (all but first alterati on in original). In so ruling, t he Court noted that many elements that speak to seizure, even when the person does not attempt to leav e, were absent, such as a “threatening presence of several officers, the display of a wea pon by an officer, some physical touching of the person of the citiz en, or the use of language o r tone of voice indicating that compliance with the officer’s request might be compelled.” Id. at 196 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980) ( opinion of Stewart, J.)). In finding that Baldwin was not seized for Fourth Amendment purpo ses, the Court emphasized thatthe directive issued did not constitute “the use of langua ge or tone of voice indicating tha t compliance with the officer’s request might be compelled.” I d. at 199. It also noted that o ther elements, such as the use of the floodlight, did not amount to an “ ‘intimidating’ show of author ity.” Id. (quoting Michigan v. Chesternut, 486 U.S. 567, 575 (1988)). We find that the circumstances her e are distinguishable from Ba ldwin. First, while the officer was calling to the defe ndant from afar in Baldwin, here , Porter was already in the immediate presence of the officer s, engaged in conversation wit h them. Furthermore, multiple officers were present in the ar ea, with at least two directly i nteracting with Porte r and a total of six officers within a one-bloc k radius. In addition, Adams obs erved that Porter’s demeanor changed when he was asked for hi s social security number and th at “all of a sudden, he d[id]n’t- 7 - want to be part of this engage ment” and, in fact, started to wa lk away until Adams said to “hang tight.” Of course, the key consideration i s how a reasonable person wou ld have understood Adams’s words “hang tight for a minute.” Unlike in the case be fore us, there was no footage in Baldwin played in the trial court showing the exact words the o fficer used — the Court had to rely solely on subsequent char acterizations from witnesses. 3 By contrast, the record here contains the exact words Adams spoke because the body camera fo otage was played repeatedly and quoted in the trial transcrip ts, and Adams testified as to what he said after refreshing his recollection by watching the footage. There is no doubt that the language Adams used — “hang tight” — is that of a command; Adams’s use of a colloquial ph rase or friendly tone does not ch ange the fact that his words would be conventionally interpreted as a directive to “stay her e.” Hang Tight, Merriam-Webster Dictionary, https://www.merriam-w ebster.com/dictionary/hang%20t ight (last visited July 29, 2019) (defining “hang tight” as an informal phrase meaning “to wait before doing anything”). Adams also testified that he tol d Porter that he was “walking b ack to my car to run [his information]” and that if Porter “ha[d] no warrants, you’re on your way, awesome, no harm, no foul.” Any reasonable person in P orter’s position would have t aken this to mean that not only was he expected to remain on the scene, but also that Adams had established the condition under

3 Baldwin’s testimony in his defens e was that the officer “told [them] to come here, said you two, come over here.” 243 Va . at 194 (alteration in origin al). At trial, the officer “acknowledged that ‘maybe [he] di d call towards—call for them’” and ask them some questions. Id. (alteration in orig inal). Baldwin’s companion testified th at “the officer came out and asked [them] to come towards . . . him a nd he asked [them] some quest ions.” Id. (alterations in original). Although the Court later characte rized the language as the offi cer having “tol d the couple to ‘come over here,’” id. at 199, w e note that the alternative characterizations of “call[ing]” and “ask[ing]” carry less of a tone of command. Furthermore, focus ing on those characterizations from the prosecution’s witnesses , as opposed to Baldwin’s testi mony in his defense, also would be consistent with construing the facts in the light most favor able to the Commonwealth.- 8 - which he would be free to leave — confirmation that he had no w arrants out for his arrest. At that point, the interaction wa s no longer consensual and Porter was seized for Fourth Amendment purposes. Because Adams did not possess reasonable s uspicion or probable cause that Porter was engaged in crimi nal activity at the time he commanded Porter to “hang tight,” the seizure was unlawful. As suc h, the trial court erred in denyin g Porter’s motion to suppress the evidence obtained subsequent to that unlawful seizure.
III. C ONCLUSION The circuit court er red in finding that Po rter was not seized f or Fourth Amendment purposes at the time the bag containing heroin was discovered. Thus, it should have granted Porter’s motion to suppress. We reverse Porter’s conviction an d remand for further proceedings if the Commonwealth be so inclined. Reversed and remanded.