COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Russe ll and Retired Judge Bumgardner * Argued at Norfolk, Virginia

JAMES EDWARD BELLAMY, JR. MEMORANDUM OPINION ** BY v. Record No. 0496-17-1 JUDGE WESLEY G. RUSSELL, JR. JULY 24, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE William R. Savage, III, Judge 1 Erik A. Mussoni, Assistant Pu blic Defender, for appellant. Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mar k R. Herring, Attorney General, on brief), for appellee.
James Edward Bellamy, Jr. was convicted in a bench trial of po ssession of heroin with the intent to distribute in viol ation of Code § 18.2-248 and drivin g on a suspended license in violation of Code § 46.2-301. 2 Appellant contends that the trial court erred in denying his motion to suppress evidence obtai ned during a search of his veh icle. For the reasons that follow, we disagree and affirm the jud gment of the trial court.

* Judge Bumgardner participate d in the hearing and decision of t his case in his capacity as a senior judge of this C ourt prior to July 1, 2018 and there after by designation pursuant to Code § 17.1-400(D).

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

1 The final order of conviction w as entered by Judge Savage, but the ruling on the motion to suppress that gives rise to t his appeal was made by Judge Ra ndall D. Smith.

2 Appellant initially sought to appeal both convictions; he subs equently withdrew his appeal of his conviction f or violating Code § 46.2-301.UNPUBLISHED- 2 - BACKGROUND In reviewing a trial court’s de nial of a motion to suppress, “w e consider the evidence in the light most favorable to the Commonwealth and accord the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Mason v. Commo nwealth, 291 Va. 362, 367, 786 S.E.2d 148, 151 (2016). So viewed, the evidence establishe s that, at approximately 1:30 in the afternoon on November 21, 2015, O ffice Quinones was on patr ol in his marked police vehicle in Chesapeake. He obser ved the vehicle Bellamy was dri ving traveling in the opposite direction with a rejected inspe ction sticker. Quinones execute d a U-turn so that he could pursue the vehicle. Quinones followed t he vehicle and observed Bellam y steadily increasing his speed in an apparent attempt to dist ance himself from Quinones. 3 Quinones characterized Bellamy’s driving as “trying to avoid me[. ]” After Bellamy made what Qui nones characterized as two “hurried” left turns and one “ hurried” right turn without stopp ing at the intersections, Quinones was able to catch up with appellan t and initiate a traffic stop

. When Quinones activated his emer gency lights, appellant pulled over. As Quinones approached the vehicle, he notic ed that neither appellant nor h is passenger were wearing seatbelts. Quinones observed appe llant breathing heavily, “a n ervous breathing,” and sweating. Quinones found the sweating part icularly noteworthy given that it was late November. Bellamy immediately provided Qui nones with his date of birth an d Social Security number and advised Quinones that hi s driver’s license was suspe nded. Quinones explained that “[t]he passenger was also breathi ng heavily, which led me to be lieve that there was more [going on] than a suspended license because [appellant] was so upfront with it.”

3 Quinones testified th at, after making the U-turn, he pressed h is accelerator to “the floor.” Despite this, Bellamy’s vehicle initially was pulling away from Quinones.- 3 - Using the identifying informa tion Bellamy had provided, Quinone s conducted both a DMV records check and an arrest history search. The DMV record s check revealed that Bellamy’s license had been sus pended. The arrest history searc h revealed that Bellamy previously had been arrested multiple times for narcotics offen ses, including possession and distribution offenses. Quinones characterized the ne ighborhood as a “high-drug, high-c rime” area. He routinely patrolled the area a nd estimated making between ten t o fifteen arrests in the area a month, including arrests for drug offenses. Based on all the information he obs erved, Quinones called for a K-9 unit while he was running the information on appellan t and his passenger. After calling for a K-9 unit, Quinones began writing summonses for t he various infractions he had obse rved. Quinones was still writing the summonses when the K -9 unit arrived. The K-9 offic er asked Quinones to assist in explaining the dog sniff process to Bellamy and his passenger. Quinones ceased writing the summonses and assisted the K -9 officer as requested. The drug dog alerted, leading Quino nes to search the vehicle. Quinones discovered, among other things, heroin, 100 empty plastic capsules in a bag , and a knife coated with white powder. 4 Quinones did not finish writing t he summonses because Bellamy was transported to the local jail, allowing Quinones to have a magistrate issue th e necessary charging documents. Bellamy moved to suppress the ev idence that Quinones had discov ered in his search of the car. Conceding that the ini tial stop of the vehicle was ju stified, Bellamy, citing Rodriguez v. United States, 135 S. Ct. 1609 (2015), a rgued that the legitima te traffic stop was impermissibly

4 At trial, an expert in the use, packaging, and distribution of narcotics in the City of Chesapeake opined that the eviden ce recovered from appellant’s vehicle was inconsistent with personal use of heroin. On appeal, Bellamy does not contest th at the evidence presented at trial was sufficient to support his conviction.- 4 - elongated to wait for the drug dog because it was not supported by independent reasonable, articulable suspicion of criminal activity apart from the traff ic offenses. The Commonwealth conceded that the traffic st op had been elongated by the wait f or and use of the drug dog, but argued that, when Quinones re quested the drug dog, he had indep endent reasonable, articulable suspicion of criminal activit y beyond the traffic offenses, and therefore, the continued detention did not violate the Fourth Amendment. In the proceedings below, the part ies correctly agreed that, un der Rodriguez, a police officer may investigate other th ings during a valid traffic sto p, but “he may not do so in a way that prolongs the stop , absent the reasonable suspicion ordi narily demanded to justify detaining
an individual .” 135 S. Ct. at 1615 (emphasis added). Accordingly, the ques tion before the trial court was limited to whether Quino nes had reasonable, articulab le suspicion of additional criminal activity to justify t he continued dete ntion of Bellamy

. Crediting Quinones’ testimony and t he inferences he drew from h is observations, the trial court found that there was suffici ent suspicion to continue the detention of Bellamy to allow for the arrival and use of the drug dog. Accordingly, the trial co urt denied the motion to suppress. Bellamy was found guilty of possessi on of heroin with the inten t to distribute at his subsequent trial and now appeals . He argues that the trial court erred in denying his motion to
suppress. ANALYSIS In the proceedings below, Bella my conceded that the initial tr affic stop was proper, and the Commonwealth conceded that Quinones’ decision to involve the dr ug dog elongated the detention beyond the time necessary for Qui nones to complete the traffic stop. Accordingly, the question on- 5 - appeal is whether independent r easonable, articulable suspicion existed to justify the continued investigatory detention of Bellamy separate and apart from the traffic offenses. 5
Whether sufficient reasonable , articulable suspicion to detain a person exists presents a mixed question of law and fact . Lawson v. Commonwealth, 55 Va. App. 549, 554, 687 S.E.2d 94, 96 (2010). In resolving such questi ons, “we give deference to the factual findi ngs of the trial court but independently decide w hether, under the applicable la w, the manner in which the challenged evidence was obtained satisfies constitutional requi rements.” Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) (cit ation omitted). Difficult to define in the abstrac t, reasonable, articulable su spicion exists when “detaining officers . . . have a particulari zed and objective basis for su specting the particular person stopped of criminal activity.” Unite d States v. Cortez, 449 U.S. 411, 417-18 (1981). “Although a mere hunch does not create reasonable su spicion, the level of suspic ion the standard requires is considerably less than proof of wrongdoing by a preponderance o f the evidence, and obviously less than is necessary for probable cause.” Bland v. Commonwea lth, 66 Va. App. 405, 413, 785 S.E.2d 798, 801-02 (2016) (internal quotation marks and citatio ns omitted). It “can be established with inf ormation that is diffe rent in quantity or c ontent than that requ ired to establish probable cause . . . [and] from in formation that is less reliab le than that required to show probable cause.” Alaba ma v. White, 496 U.S. 325, 330 (1990). In determining whether reasonable suspicion exists, a court’s r eview must be “based on an assessment of the totality of t he circumstances.” Harris v. Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145 (2008). It is an obj ective question that d oes not turn on the subjective thoughts of an individual offi cer or detective, Mason, 291 Va. at 368, 786 S.E.2d at 151;

5 Bellamy does not contest that , once the drug dog alerted, the search of the vehicle was justified.- 6 - however, the standard “allows o fficers to draw on their own exp erience and specialized training to make inferences from and deductions about the cumulative inf ormation available to them that ‘might well elude an untrained p erson.’” United States v. Arvi zu, 534 U.S. 266, 273 (2002) (quoting Cortez, 449 U.S. at 418). Quinones identified several fact ors that, when viewed in the ag gregate, supported a finding of reasonable suspicion. F irst, Quinones reasonably co uld conclude that Bellamy’s driving, which included increasi ng his speed and making “hurrie d” turns in a pattern that suggested evasion as opposed to t raveling to a d estination, rep resented an attempt “to avoid me[.]” 6 Such evasive behavior has bee n recognized as a fact that, whe n combined with others, can support a finding of reasonable suspicion. See, e.g., Illi nois v. Wardlow, 528 U.S. 119, 124 (2000) (recognizing that “evasive behavior i s a pertinent facto r in determining reasonable suspicion”). Next, Bellamy and his passenger both exhibited si gns of extreme nervousness, incl uding heavy breathing and sweating desp ite it being late November. 7 Courts long have recognized that indications of nervousness are fa ctors to consider in determini ng whether reasonable suspicion exists. Id. (recognizing that “nervous . . . behavior is a per tinent factor in determining reasonable suspicion”).

6 Bellamy argues that the driv ing pattern described did not supp ort a conclusion that he was “evasive.” However, the tri al court credited Quinones’ tes timony, which included the observation that the driving patte rn was designed “to avoid” Qu inones. Under the facts found below, the avoidance described f airly can be described as evasi ve.

7 Bellamy argues that his ner vousness could be explained by the fact that Quinones had pulled him over and Bellamy knew that he had committed offenses , i.e., driving on a suspended license and driving a vehicle wi th a rejection sticker for a fa iled inspection. A lthough potentially true in the abstract, it does not explain the passenger’s nervo usness, which caused Quinones to believe “that there was more [going on] than a suspended licens e . . . .”- 7 - Quinones testified that he was familiar with the area in which the encounter occurred and identified it as a “high-dr ug, high-crime” area. The fact that an area is known to law enforcement as a location where criminal activity often occurs also has been recognized as a fact supporting a finding of reasonabl e suspicion. See, e.g., Walke r v. Commonwealth, 42 Va. App. 782, 791, 595 S.E.2d 30, 34 (2004). Bellamy’s criminal history als o supported reasonable suspicion . The standard record and history check Quinones performe d revealed that Bellamy had mult iple arrests for drug offenses, including both possession and dist ribution. Such information i s a factor to consider in determining whether reasonable suspicion exists. See, e.g., Co mmonwealth v. Smith, 281 Va. 582, 591, 709 S.E.2d 139, 143 (2011) (considering historical in formation learned from police records system check can suppor t an officer’s reasonable suspic ion). Bellamy contends that all of t hese factors, whether viewed ind ividually or in their totality, potentially have innocent explanations and are insuff icient to support reasonable suspicion. It is, of course, true that these factors, whether viewed in isolation or collectively, did not demonstrate conclusively tha t Bellamy was engaged in crimin al conduct independent of the traffic offenses for which he initially was stopped. It also m ay be true that all of these factors do not establish that it was probabl e that Bellamy was engaged in criminal activity apart from the traffic offenses for which he was stopped. The reasonable, art iculable suspicion standard, however, does not demand that the re be no innocent explanations for the facts observed, Morris v. City of Va. Beach, 58 Va. App. 173, 183, 707 S.E.2d 479, 483 (2 011), or even that illicit conduct be the most likely explanation f or what an officer learns or ob serves, Shifflett v. Commonwealth, 58 Va. App. 732, 736, 716 S.E.2d 132, 134 (2011) (recognizing t hat reasonable suspicion “requires only a moderate chan ce of finding evidence of wrongdo ing” (internal quotation marks and citation omitted)).- 8 - Here, although there are potential innocent explanations for mu ch of what Quinones learned and observed, the total ity of what he learned and observed supported an objective law enforcement official having “a reasonable suspicion . . . that criminal activity may be afoot.” Mason, 291 Va. at 367, 786 S.E.2d at 151 (emphasis added). Acc ordingly, the circuit court did not err in concluding that the c ontinued detentio n of Bellamy w as supported by reasonable suspicion.
CONCLUSION For the reasons stated above, the evidence established suffici ent reasonable suspicion of criminal activity to allow Qu inones to detain Bellamy long enou gh to allow the drug dog to confirm or allay that suspici on. Accordingly, the judgment of the trial court is affirmed. Affirmed.