preponderance of the evidence standard in Virginia

2018Najera, 48 Va. App. at 240 , 629 S.E.2d at 722 (“A preponderance-of-the-evidence standard governs judicial review of the foster care plan recommendations, while the more stringent clear-and-convincing-evidence standard applies to the ultimate termination decision.”).

2018Najera, 48 Va. App. at 240 , 629 S.E.2d at 722 (“A preponderance-of-the-evidence standard governs judicial review of the foster care plan recommendations, while the more stringent clear-and-convincing-evidence standard applies to the ultimate termination decision.”).

2025However, “[t]he likelihood of criminality ‘need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard’ applicable in other contexts.” Raab v. Commonwealth, 50 Va. App. 577, 581 (2007) (en banc) (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)). -7- In the case at hand, it is uncontested that police seized the SUV and its occupants when they parked behind it, blocking it in.

2023As stated by the Supreme Court of the United States in Arvizu, courts must look at the “totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing,” and this standard is a relatively low bar as the likelihood of that wrongdoing “need not rise to the level required for - 11 - probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” See Arvizu, 534 U.S. at 273-74 (internal quotations omitted).

2009Servs. v. Carter, 28 Va. App. 494, 497 , 507 S.E.2d 87, 88 (1998); Padilla v. Norfolk Div. of Soc.

2009Servs. v. Carter, 28 Va. App. 494, 497 , 507 S.E.2d 87, 88 (1998); Padilla v. Norfolk Div. of Soc.

2025However, “[t]he likelihood of criminality ‘need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard’ applicable in other contexts.” Raab v. Commonwealth, 50 Va. App. 577, 581 (2007) (en banc) (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)). -7- In the case at hand, it is uncontested that police seized the SUV and its occupants when they parked behind it, blocking it in.

2023At the same time, it “need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Raab v. Commonwealth, 50 Va. App. 577, 581 (2007) (en banc) (quoting Arvizu, 534 U.S. at 274 ).

2009Terry v. Ohio, 392 U.S. 1, 30 (1968). “[T]he likelihood of criminal activity [required for a Terry stop] need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274 (2002).

2009Terry v. Ohio, 392 U.S. 1, 30 (1968). “[T]he likelihood of criminal activity [required for a Terry stop] need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274 (2002).

2012Wilson v. Commonwealth, 58 Va.App. 513, 519, 711 S.E.2d 251, 254 (2011).

2012Wilson v. Commonwealth, 58 Va.App. 513, 519, 711 S.E.2d 251, 254 (2011).

2009Nevertheless, an “officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or -8- “hunch’” of criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000) (quoting Terry, 392 U.S. at 27 ); see Arvizu, 534 U.S. at 274 .

2008Nevertheless, an “officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch”’ of criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000) (quoting Terry, 392 U.S. at 27 ); see Arvizu, 534 U.S. at 274 .

2007Id. at 274, 122 S.Ct. at 751 (citing Sokolow, 490 U.S. at 7 , 109 S.Ct. at 1585 ); see also Whitfield v. Common wealth, 265 Va. 358, 361 , 576 S.E.2d 463, 464-65 (2003) (summarizing standard as a reasonable suspicion the individual “may be involved in criminal activity” (citation omitted)).

2007Id. at 274, 122 S.Ct. at 751 (citing Sokolow, 490 U.S. at 7 , 109 S.Ct. at 1585 ); see also Whitfield v. Common wealth, 265 Va. 358, 361 , 576 S.E.2d 463, 464-65 (2003) (summarizing standard as a reasonable suspicion the individual “may be involved in criminal activity” (citation omitted)).

2016Dep’t of Human Servs., 62 Va. App. 296, 328 , 746 S.E.2d 509, 525 (2013) (alteration in original) (quoting Najera v. Chesapeake Div. of Soc.

2016Dep’t of Human Servs., 62 Va. App. 296, 328 , 746 S.E.2d 509, 525 (2013) (alteration in original) (quoting Najera v. Chesapeake Div. of Soc.

2007See id. - 11 - inhalation” or “insulation inhalation,” and she mentions Carter’s exposure to plaster dust on more than one occasion.

2007See id. 10 .

2003“An informant’s tip can provide the justification for a Terry stop even if the informant’s reliability is unknown and certainly can do so if, as here, the information is corroborated.” Washington v. Commonwealth, 29 Va.App. 5, 11 , 509 S.E.2d 512, 515 (1999) (en banc) (citation omitted).

2003“An informant’s tip can provide the justification for a Terry stop even if the informant’s reliability is unknown and certainly can do so if, as here, the information is corroborated.” Washington v. Commonwealth, 29 Va.App. 5, 11 , 509 S.E.2d 512, 515 (1999) (en banc) (citation omitted).

2003Though an officer’s reliance on a mere hunch cannot justify a stop, “the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Arvizu, 534 U.S. at 274 , 122 S.Ct. at 751 . 3 Under equally settled principles, “anonymous information that has been sufficiently corroborated may furnish reasonable suspicion justifying an investigative stop.” Bulatko v. Commonwealth, 16 Va.App. 135, 137 , 428 S.E.2d 306, 307 (1993) (citing Alabama v. White, 496 U.S. 325, 331 , 110 S.Ct. 2412, 24

2003Though an officer’s reliance on a mere hunch cannot justify a stop, “the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Arvizu, 534 U.S. at 274 , 122 S.Ct. at 751 . 3 Under equally settled principles, “anonymous information that has been sufficiently corroborated may furnish reasonable suspicion justifying an investigative stop.” Bulatko v. Commonwealth, 16 Va.App. 135, 137 , 428 S.E.2d 306, 307 (1993) (citing Alabama v. White, 496 U.S. 325, 331 , 110 S.Ct. 2412, 24

2024Mother claims that there was an abundance of evidence before the trial court of relatives suitable to accept placement of the child. 4 With respect to father’s challenge of the foster care goal of adoption, “[o]ur decision to affirm the termination order necessarily subsumes this aspect of his appeal because a preponderance-of-the-evidence standard governs judicial modifications of foster care plans.” Toms, 46 Va. App. at 265 n.3. - 16 - Code § 16.1-283(A) provides that, in terminating residual parental rights, the court “shall give a consideration to granting custody to a person with a legiti

2024However, our decision here “necessarily subsumes this aspect of his appeal because a preponderance-of-the-evidence standard governs judicial modifications of foster care plans.” Toms, 46 Va. App. at 265 n.3. -8- informed the court of her ‘suitability and willingness’ to take [minor] into her custody” to satisfy Code § 16.1-283(A)); Hawthorne v. Smyth Cnty.

2007Id. at 274, 122 S.Ct. at 751 (citing Sokolow, 490 U.S. at 7 , 109 S.Ct. at 1585 ); see also Whitfield v. Common wealth, 265 Va. 358, 361 , 576 S.E.2d 463, 464-65 (2003) (summarizing standard as a reasonable suspicion the individual “may be involved in criminal activity” (citation omitted)).

2004Though an officer’s reliance on a mere hunch cannot justify a stop, United States v. Sokolow, 490 U.S. 1, 7 (1989), “the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Arvizu, 534 U.S. at 274 . “‘Circumstances we have recognized as relevant [to this determination] . . . include characteristics of the area surrounding the stop, the time of the stop, the specific conduct of the suspect individual, the character of the offense under suspicion, and the unique perspectiv

2025The first question in the instant case is whether probable cause supported the officers’ conclusion that the white substance they saw in the car in the high crime area was an illegal drug. -7- See generally Whitaker v. Commonwealth, 279 Va. 268, 275-76 (2010) (recognizing that the fact that an event occurred in a “high crime area” is relevant in evaluating whether the totality of the circumstances supported a seizure).

2023See, e.g., Beck, 939 N.W.2d at 225 (“[C]onduct that is protected by the presumption of innocence may not be evaluated using the preponderance-of-the-evidence standard without violating due process.”); State v. Marley, 364 S.E.2d 133, 139 (N.C. 1988) (“[D]ue process and fundamental fairness precluded the trial court from aggravating defendant’s second degree murder sentence with the single element— premeditation and deliberation—which, in this case, distinguished first degree murder after the jury had acquitted defendant of first degree murder.”); State v. Cote, 530 A.2d 775, 785 (N.H. 1987) (“

2023See, e.g., Beck, 939 N.W.2d at 225 (“[C]onduct that is protected by the presumption of innocence may not be evaluated using the preponderance-of-the-evidence standard without violating due process.”); State v. Marley, 364 S.E.2d 133, 139 (N.C. 1988) (“[D]ue process and fundamental fairness precluded the trial court from aggravating defendant’s second degree murder sentence with the single element— premeditation and deliberation—which, in this case, distinguished first degree murder after the jury had acquitted defendant of first degree murder.”); State v. Cote, 530 A.2d 775, 785 (N.H. 1987) (“

2023See generally Ballagh v. Fauber Enters., Inc., 290 Va. 120, 124-25 (2015) (recognizing that the preponderance standard applies to civil statutory actions unless otherwise provided); see also Jones, 463 U.S. at 368 (“The preponderance of the evidence standard comports with due process for commitment of insanity acquittees.”). - 12 - Code § 19.2-182.7 divides a circuit court’s duties into two parts.

2023Finally, whether the officer’s conduct is reasonable “is judged from the perspective of a[n objectively] reasonable officer on the scene allowing for the need of split-second decisions.” -5- McArthur, 72 Va. App. at 360 (alteration in original) (quoting Thompson v. Commonwealth, 54 Va. App. 1, 7 (2009)).

2023See generally Ballagh v. Fauber Enters., Inc., 290 Va. 120, 124-25 (2015) (recognizing that the preponderance standard applies to civil statutory actions unless otherwise provided); see also Jones, 463 U.S. at 368 (“The preponderance of the evidence standard comports with due process for commitment of insanity acquittees.”). - 12 - Code § 19.2-182.7 divides a circuit court’s duties into two parts.

2022See Ali v. Commonwealth, 75 Va. App. 16 , 52 (2022); see also Order Declaring a Judicial Emergency in Response to COVID-19 Emergency 1-2 (Va. Mar. 16, 2020). - 12 - As described above, Code § 16.1-283(C)(2) provides a basis for termination where a parent has failed to remedy substantially the conditions requiring removal “within a reasonable period of time not to exceed 12 months from the date the child was placed in foster care.” That “twelve-month time limit ‘was designed to prevent an indeterminate state of foster care “drift” and to encourage timeliness by the courts and social services in

2021The preponderance of the evidence standard means that a claimant must prove his case by the “greater weight of the evidence.” See, e.g., Bedget v. Lewin, 202 Va. 535, 540 (1961).

2021Sometimes referred to as the “greater weight of the evidence,” the preponderance standard is satisfied when the evidence convinces a factfinder that a particular fact in dispute was “more probable than not[.]” Lysable Transp., Inc. v. Patton, 57 Va. App. 408, 419 (2010).13 Thus, although evidence in equipoise fails to meet either standard, connection with the evidence of guilt adduced at trial.

2019Atkins, 68 Va. App. at 9 (recognizing that “factual questions underlying the admissibility of evidence” need - 12 - only be proved “by a preponderance of the evidence” (quoting Bloom v. Commonwealth, 262 Va. 814, 821 (2001))).

2019Atkins, 68 Va. App. at 9 (recognizing that “factual questions underlying the admissibility of evidence” need - 12 - only be proved “by a preponderance of the evidence” (quoting Bloom v. Commonwealth, 262 Va. 814, 821 (2001))).

2019Servs., 46 Va. App. 1, 8 (2005) (the Court affirmed termination of parental rights under one subsection of 9 With respect to father’s challenge of the foster care goal of adoption for S.D. and N.D., “[o]ur decision to affirm the termination order necessarily subsumes this aspect of his appeal because a preponderance-of-the-evidence standard governs judicial modifications of foster care plans.” Toms, 46 Va. App. at 265 n.3. - 10 - Code § 16.1-283 and did not need to address termination of parental rights pursuant to another subsection).