Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and 

Millette, JJ., and Carrico, S.J. 

LEONARD TERRELL WHITAKER 

 OPINION BY 

v. Record No. 090175 SENIOR JUSTICE HARRY L. CARRICO 

 January 15, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 The primary issue in this appeal is whether the circuit 

court erred in denying a defense motion to suppress the evidence 

on charges brought against the defendant, Leonard Terrell 

Whitaker, in the Circuit Court of the City of Richmond. The 

charges consisted of possession of a firearm while in possession 

of a controlled substance (Code § 18.2-308.4(B)), possession 

with intent to distribute marijuana (Code § 18.2-248.1), 

possession of a firearm after having been convicted of a felony 

(Code § 18.2-308.2(A)), and carrying a concealed weapon (Code 

§ 18.2-308(A)). 

 Following its denial of Whitaker’s motion to suppress, the 

circuit court in a bench trial convicted him of all the charges 

and sentenced him to serve a total term of seven years active 

incarceration in the Department of Corrections plus additional 

suspended time. Then, based upon these convictions, the circuit 

court held that Whitaker had violated the terms of probation he 

had been under for convictions entered against him in 2005. The 

court revoked all of Whitaker’s suspended sentences and ordered 
that they “run concurrent with each other and with [his] new 

time.” 

 The Court of Appeals of Virginia awarded Whitaker an 

appeal. In an unpublished opinion, the court affirmed 

Whitaker’s convictions and, accordingly, held that it “need not 

further examine whether the trial court erred in revoking [his] 

suspended sentences.” Whitaker v. Commonwealth, Record No. 

1859-07-2 (Dec. 23, 2008). We awarded Whitaker this appeal. 

BACKGROUND 

 The evidence presented at the hearing on the motion to 

suppress shows that on November 17, 2006, City of Richmond 

Police Officer Clyde Lindsey and two of his partners, Officers 

Marshall Young and Thomas Gilbert, along with another officer, 

were patrolling in an unmarked police car in a “very high crime 

area, very high drug area” of the city. Numerous shootings had 

occurred in the area. Also, “[a] lot of drug activity goes on 

there”; it was an “open-air drug market”; the officers had made 

numerous drug arrests “right there in that particular block.” 

 The officers were clad in street clothes and were wearing 

placards∗

 with “Richmond Police” and a badge “about a foot tall” 

 ∗

 As described by Officer Lindsey, in these circumstances a 

“placard” is a type of vest typically worn by police officers 

when conducting traffic control. With high visibility print and 

symbols it identifies the wearer as being a police officer and 

also specifies the particular law enforcement agency for which 

the officer works. 

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imprinted on the front and back. As the officers approached the 

intersection of 27th and P Streets, they observed a group of 

men, four in number, some sitting and some standing, on a 

sidewalk bordered by a chain link fence with a house “right 

behind it.” Whitaker was one of the group. 

 The officers exited their vehicle and went up to the men to 

“investigate trespassing and also to speak to them about . . . 

blocking the sidewalk.” Officer Lindsey then went to the front 

door of the house to ascertain from the occupant whether the 

four men were trespassing. He had responded previously to the 

occupant’s complaints about people trespassing on her property. 

Officer Lindsey knocked twice, but received no response. 

 After a period of about ninety seconds, Officer Lindsey 

returned to the sidewalk and Officer Gilbert asked him “where is 

[Whitaker] going.” Officer Lindsey turned and saw that Whitaker 

“was on his bicycle” going away from the officers and around the 

corner of 27th and P Streets. Officer Lindsey followed on foot 

and when he got around the corner he saw that Whitaker had 

abandoned his bicycle and was running down an alley. Officer 

Lindsey began running after Whitaker. 

 Officers Gilbert and Young tried to follow in their police 

car, which they found difficult, so they exited the car and 

joined Officer Lindsey in running after Whitaker. The officers 

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were behind Whitaker as he ran across a field, “looped” around 

several houses and a church, and jumped over two fences. 

 Officer Lindsey observed nothing unusual about the way 

Whitaker ran, but Officers Gilbert and Young both noticed that 

Whitaker was holding the right hand pocket of his jacket as he 

ran, leading Officer Gilbert to think “it was a firearm.” 

 After Whitaker had run about two blocks, he slipped on some 

loose gravel in a parking lot and fell to the ground. Officer 

Lindsey “proceeded to kneel down on top of Mr. Whitaker.” 

Officer Gilbert arrived on the scene at the same time as Officer 

Lindsey, and in a “few seconds” Officer Young “caught up.” 

 Officer Gilbert assisted Officer Lindsey in trying to place 

handcuffs on Whitaker. While the handcuffing effort was in 

progress, Whitaker tried to reach around to his right jacket 

pocket and Officer Lindsey told Officer Gilbert to “watch his 

right hand[; h]e’s trying to get something out of his pockets.” 

Whitaker then said: “Sir, I’ve got a firearm in my pocket.” 

 The firearm was retrieved from Whitaker’s pocket, and he 

was placed under arrest for carrying a concealed weapon. 

Officer Young then conducted a search of Whitaker’s person. The 

search disclosed quantities of what later was determined to be 

marijuana and cocaine in Whitaker’s right front pants pocket. 

Cash in the total amount of $713.00 was found in his left rear 

pants pocket. 

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DISCUSSION 

 The Fourth Amendment to the Constitution of the United 

States provides in pertinent part that “[t]he right of the 

people to be secure in their persons . . . and effects, against 

unreasonable searches and seizures, shall not be violated.” 

U.S. Const. amend. IV. The following appellate standard of 

review is applicable in deciding a claim that evidence was 

seized in violation of the Fourth Amendment: 

 In reviewing the denial of a motion to suppress 

evidence claiming a violation of a person’s Fourth 

Amendment rights, we consider the facts in the light most 

favorable to the Commonwealth, the prevailing party at 

trial. The burden is on the defendant to show that the 

trial court committed reversible error. We are bound by 

the trial court’s factual findings unless those findings 

are plainly wrong or unsupported by the evidence. We will 

review the trial court’s application of the law de novo. 

Whitehead v. Commonwealth, 278 Va. 300, 306-07, 683 S.E.2d 299, 

301 (2009) (quoting Malbrough v. Commonwealth, 275 Va. 163, 168-

69, 655 S.E.2d 1, 3 (2008)). 

Two types of seizures of the person are protected by the 

Fourth Amendment – an arrest and an investigatory stop. A 

police officer may seize a person by arrest only when the 

officer has probable cause to believe that the person 

seized has committed or is committing a crime. In order to 

justify the brief seizure of a person by an investigatory 

stop, a police officer need not have probable cause; 

however, he must have “a reasonable suspicion, based on 

objective facts, that the [person] is involved in criminal 

activity.” In determining whether a police officer had a 

particularized and objective basis for suspecting that the 

person stopped may be involved in criminal activity, a 

court must consider the totality of the circumstances. 

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Ewell v. Commonwealth, 254 Va. 214, 216-17, 491 S.E.2d 721, 722-

23 (1997) (citations and internal quotation marks omitted). 

[The] evaluation of the proper balance that has to be 

struck in this type of case [is] that there must be a 

narrowly drawn authority to permit a reasonable search for 

weapons for the protection of the police officer, where he 

has reason to believe that he is dealing with an armed and 

dangerous individual, regardless of whether he has probable 

cause to arrest the individual for a crime. The officer 

need not be absolutely certain that the individual is 

armed; the issue is whether a reasonably prudent man in the 

circumstances would be warranted in the belief that his 

safety or that of others was in danger. And in determining 

whether the officer acted reasonably in such circumstances, 

due weight must be given, not to his inchoate and 

unparticularized suspicion or “hunch,” but to the specific 

reasonable inferences which he is entitled to draw from the 

facts in light of his experience. 

Terry v. Ohio, 392 U.S. 1, 27 (1968) (citations omitted). 

 Whitaker advances three arguments, as follows: 

I. The police did not have reasonable articulable 

suspicion to seize Whitaker. 

II. The seizure of the drugs was not justified as a search 

incident to a lawful arrest. 

III. The revocation order should be reversed because the 

new convictions at issue in this appeal were the sole 

basis for the revocation and those convictions should 

be reversed. 

We disagree with Whitaker on all scores. 

I. ARTICULABLE SUSPICION 

 In Illinois v. Wardlow, 528 U.S. 119 (2000), the Supreme 

Court in a very similar case outlined what is appropriate in 

determining whether an officer had a particularized and 

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objective basis for suspecting that the person stopped may be 

involved in criminal activity. The court stated as follows: 

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. Accordingly, 

we have previously noted the fact that the stop occurred in 

a “high crime area” [is] among the relevant contextual 

considerations in a Terry analysis. 

 In this case, moreover, it was not merely respondent’s 

presence in an area of heavy narcotics trafficking that 

aroused the officers’ suspicion, but his unprovoked flight 

upon noticing the police. Our cases have also recognized 

that nervous, evasive behavior is a pertinent factor in 

determining reasonable 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. In reviewing the propriety 

of an officer’s conduct, courts do not have available 

empirical studies dealing with inferences drawn from 

suspicious behavior, and we cannot reasonably demand 

scientific certainty from judges or law enforcement 

officers . . . . [T]he determination of reasonable 

suspicion must be based on commonsense judgments and 

inferences about human behavior. 

Wardlow at 124-25 (citations omitted). 

 In a concurring and dissenting opinion in Wardlow, Justice 

Stevens pointed out that the State of Illinois had asked the 

Court to announce a per se rule authorizing the temporary 

detention of anyone who flees at the mere sight of a police 

officer while the defendant had asked for the opposite per se 

rule, one holding that flight upon seeing police can never, by 

itself, be sufficient to justify a temporary investigatory stop. 

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Justice Stevens noted that the Court had “wisely endorse[d] 

neither per se rule,” but had adhered “to the view that ‘[t]he 

concept of reasonable suspicion’ . . . must be determined by 

looking to ‘the totality of the circumstances – the whole 

picture.’ ” 528 U.S. at 126-27 (Stevens, J., concurring and 

dissenting). 

 Thus, while a suspect’s presence in a high crime area, 

standing alone, is not enough to support a reasonable 

particularized suspicion, it is a relevant contextual 

consideration in a Terry analysis. And while headlong flight is 

not necessarily indicative of wrongdoing, it is a pertinent 

factor in determining reasonable suspicion. 

 In the present case, while we have a showing of both the 

relevant contextual consideration of a high crime area and the 

pertinent factor of headlong flight, it is not necessary to 

decide whether this showing, without more, is sufficient to 

support a reasonable particularized suspicion because, in this 

case, there is more. 

 First is Whitaker’s unusual behavior in abandoning his 

bicycle, his own personal property, at the outset of the chase. 

He must have considered that it impeded a quicker getaway, that 

he could elude the police better on foot. Added to this factor 

is Whitaker’s evasive behavior in looping around houses, running 

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behind a church, and jumping over two fences in his seemingly 

frantic determination to elude the police. 

 Next is Whitaker’s holding onto his right jacket pocket as 

he ran, the same pocket from which a firearm was later 

retrieved. He says that we should not consider this bit of 

evidence because only Officers Gilbert and Young observed 

Whitaker holding his pocket and they did not tell Officer 

Lindsey about it and he was the one who detained Whitaker. But 

Officers Gilbert and Lindsey worked together in detaining 

Whitaker and Officer Young conducted the search of Whitaker’s 

person that disclosed the presence of drugs in his pocket, so it 

was a joint police undertaking and the testimony of both Officer 

Gilbert and Officer Young was relevant to the issues involved in 

the case. Moreover, Whitaker did not object to the testimony 

when it was offered. Rule 5:25. 

 Then there is Whitaker’s admission, unusual and unexpected 

under the circumstances, that he had a firearm in his pocket. 

This admission was made while Officers Lindsey and Gilbert were 

still trying to detain Whitaker but before they were able to 

subdue him. The statement was spontaneous on Whitaker’s part, 

made without interrogation by or coercion from the police. 

 As noted previously, in determining whether Officer Lindsey 

had a particularized and objective basis for suspecting that the 

person stopped may be involved in criminal activity, a court 

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must consider the totality of the circumstances. Considering 

the totality of the circumstances involved in this case, we are 

of opinion that the evidence is sufficient to support the 

conclusion that Officer Lindsey, even before Whitaker fell and 

Officer Lindsey proceeded to detain him, had a reasonable 

particularized suspicion that Whitaker may be involved in 

criminal activity. There is just no conceivable reason for 

Whitaker’s evasive behavior other than to evade the police and 

avoid discovery of the contraband hidden on his person. 

II. SEARCH INCIDENT TO ARREST 

 Whitaker argues that the “seizure [of the drugs] rose ‘to 

the level of a full custodial arrest,’ ” and even if his 

detention and the removal of his firearm were justified by 

reasonable suspicion, the seizure of the drugs was not justified 

as a search incident to a lawful arrest for possession of a 

concealed weapon because that arrest was “not supported by 

probable cause.” It is not a crime to possess a weapon, 

Whitaker says, and without verification that he did not have a 

weapons permit the police lacked probable cause to arrest him 

for violating the concealed weapons statute. 

 Countering, the Commonwealth says that Whitaker did not 

raise this argument in the circuit court. Whitaker claims that 

he did make the argument but states on brief that “the trial 

court does not appear to have expressly ruled on this argument.” 

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 In any event, we will assume, without deciding, that the 

seizure of the drugs did rise to the level of a full custodial 

arrest. We are of opinion that Whitaker’s arrest for carrying a 

concealed weapon was lawful because it was supported by probable 

cause supplied by his spontaneous statement that he had a 

firearm in his pocket. This statement justified the search of 

his person for other weapons, during which the presence of the 

drugs was disclosed. 

 Proof of probable cause does not require evidence 

sufficient to show guilt beyond a reasonable doubt. Maryland v. 

Pringle, 540 U.S. 366, 371 (2003). The fact that Whitaker might 

not have been convicted on the concealed weapons charge at a 

later trial on a showing he had a permit does not affect the 

viability of the probable cause to arrest in the first instance. 

III. REVERSAL OF REVOCATION OF PROBATION 

 Since Whitaker’s argument on the propriety of the 

revocation of his probation is conditioned upon our reversal of 

his new convictions and we intend to affirm those convictions, 

we need not give further consideration to the argument. 

CONCLUSION 

 As noted previously, in reviewing the denial of a motion to 

suppress claiming a violation of a person’s Fourth Amendment 

rights, the burden is on the defendant to show that the trial 

court committed reversible error. Whitaker has failed to carry 

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this burden. Accordingly, we will affirm the judgment of the 

Court of Appeals. 

Affirmed. 

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