Virginia Possession Firearm Controlled Substance Intent Distribute Marijuana Elude Police Drugs Carry Concealed Weapon

Virginia Possession Firearm Controlled Substance Intent Distribute Marijuana Elude Police Drugs Carry Concealed Weapon

Whitaker v. Commonwealth, 279 Va. 268; 687 S.E.2d 733 January 15, 2010

The judgment of the Virginia Court of Appeals upholding the convictions is affirmed. 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. 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 certainly arouses reasonable suspicion.

In the instant case, it is first the Defendant'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 Defendant's evasive behavior in looping around houses, running behind a church, and jumping over two fences in his seemingly frantic determination to elude the police. Next is Defendant's holding onto his right jacket pocket as he ran, the same pocket from which a firearm was later retrieved. The Court was of the opinion that Defendant'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.

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