Gus Wells, Jr. v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Humphreys and Kelsey
Argued at Richmond, Virginia
GUS WELLS, JR.
MEMORANDUM OPINION * BY
v. Record No. 0375-02-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 22, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Mark Mokris (Law Office of Mark Mokris,
P.L.C., on brief), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Gus Wells, Jr. (appellant) was convicted of possession of a
firearm on school property in violation of Code § 18.2-308.1.
Appellant contends the trial court erred in denying his motion to
suppress because the police lacked a reasonable articulable
suspicion to stop him. The trial court denied the suppression
motion and convicted appellant. For the following reasons, we
affirm the trial court's ruling.
I.
At the close of school on January 14, 2000, Mr. Clark, the
principal of Halifax County High School, told Deputy Brett
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Birkmeyer (Birkmeyer), the school resource officer,1 that at
dismissal time "there was going to be some people coming from
[Mecklenburg] County to cause a problem, a disturbance, basically
to fight students from the high school." Clark asked Birkmeyer
"to keep a check in the parking lot and the bus parking lot," both
of which were located on school property. Birkmeyer and Deputy
Bowen saw appellant leave the student parking lot and drive toward
the loading zone in front of the school. Bowen pointed to
appellant and stated "that's Gus Wells and [he] doesn't have any
reason to be here." Birkmeyer had "prior knowledge of [appellant]
through [his] employment with the Clarksville Police Department."
He "knew him not to be a student of the high school and [with no]
reason . . . to be on the school property." Birkmeyer "had no
reason to think [appellant] wasn't" a part of the group identified
by the high school's principal. Birkmeyer stopped appellant's car
in the loading zone in front of the school. He "walked up to
[the] vehicle and asked [appellant] for his driver's license and
his registration." Appellant then "stated to [Birkmeyer] he had a
gun" which Birkmeyer "observed . . . on the dash of his vehicle."
Birkmeyer confiscated the weapon and a clip of ammunition.
Appellant moved to suppress the gun as a product of an
unlawful stop. He argued that the police did not have a
1
The duties of a school resource officer include
enforcement of the laws of the Commonwealth in the high school
and to provide security for the school.
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reasonable articulable suspicion that he was involved in criminal
activity. The trial court, in overruling the motion, stated:
The question here is whether or not the
deputy had reasonable suspicion to believe
that a criminal offense was being committed
when the offense occurred. In the words of
- as cited by the Commonwealth when the
officer can articulate and particularize an
objective basis to suspect that an
individual is involved in criminal activity,
the officer may briefly detain the suspect
in order to further investigate that
suspicion. Here the Court notes that this
is not an individual unknown to [Birkmeyer].
[Birkmeyer] had known [appellant], knew that
he was from the Clarksville area of
Mecklenburg County. [Birkmeyer] had been
told by the principal to look out for
individuals who may be there from the
Mecklenburg County area. [Appellant], in a
general way, fits the description of what
the principal was making reference to.
[Birkmeyer] was concerned about the
possibility of criminal activity taking
place by someone from Mecklenburg County.
Under those circumstances the Court finds
that there was justification for the officer
to stop [appellant's] vehicle and to inquire
as to his reason for being there on the
school grounds. The Court finds that he
did, in fact, have reasonable suspicion to
stop [appellant], and, therefore, the motion
to suppress is overruled.
(Emphasis added). Following that ruling, the parties agreed to
stipulate to the evidence obtained at the suppression hearing
and, after brief testimony from Birkmeyer, the trial court found
appellant guilty. Appellant appeals this ruling.
II.
When reviewing the ruling on a suppression motion, we
consider the evidence most favorably to the prevailing party
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below, according deference to the decision of the trial court,
with the burden to show reversible error resting upon the
appellant. See Wallace v. Commonwealth, 32 Va. App. 497, 501,
528 S.E.2d 739, 740 (2000); Miller v. Commonwealth, 16 Va. App.
977, 979, 434 S.E.2d 897, 899 (1993). "While we are bound to
review de novo the ultimate questions of reasonable suspicion
and probable cause, we 'review findings of historical fact only
for clear error . . . and give due weight to inferences drawn
from those facts by resident judges and local law enforcement
officers.'" Davis v. Commonwealth, 35 Va. App. 533, 538, 546
S.E.2d 252, 255 (2001) (citing Ornelas v. United States, 517
U.S. 690, 699 (1996)).
A police officer may constitutionally conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity may be afoot. See
Terry v. Ohio, 392 U.S. 1, 30 (1968). "A reasonable suspicion
is more than an unparticularized suspicion or hunch. Reasonable
suspicion, while requiring less of a showing than probable
cause, requires at least a minimal level of objective
justification for making the stop." Bass v. Commonwealth, 259
Va. 470, 475, 525 S.E.2d 921, 923 (2000) (citing United States
v. Sokolow, 490 U.S. 1 (1989)). "The court must consider the
totality of the circumstances in determining whether a police
officer had a particularized and objective basis for suspecting
that a person stopped may be involved in criminal activity."
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Bass, 259 Va. at 475, 525 S.E.2d at 924 (citing United States v.
Cortez, 449 U.S. 411, 417-18 (1981)).
"Actual proof that criminal activity is afoot is not
necessary; the record need only show that it may be afoot."
Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77, 79
(1992).
In the instant case, the evidence proved that Birkmeyer had
the requisite reasonable, articulable suspicion necessary for an
investigatory detention. The principal of the high school told
Birkmeyer that people from Mecklenburg County might be arriving
at the school at the end of the day to cause a disturbance.
Birkmeyer saw appellant, a person he knew to be from Mecklenburg
County, who had no reason to be on Halifax County High School
property. Appellant, a non-student, was first seen in the
students' parking lot and later stopped in the school's loading
zone. He fit the principal's description of a non-student from
Mecklenburg County who might be at the school at dismissal to
cause a disturbance. Thus, Birkmeyer had a reasonable,
articulable, objective suspicion that "criminal activity may be
afoot" sufficient to justify his brief, investigatory stop.
Accordingly, the trial court's ruling is affirmed.
Affirmed.
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