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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    In an unpublished opinion, the court affirmed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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