totality of the circumstances analysis in Virginia

2025Although providing an objective standard, the totality-of-the-circumstances test allows officers to draw on their “training, experience, and everyday common sense.” Id. at ___; see Curley, 295 Va. at 622 .

2024This dual showing of sufficient veracity and basis of knowledge, established in Aguilar v. Texas, 378 U.S. 108 (1964), was “abandon[ed]” in Gates when the Court “in [Aguilar’s] place reaffirm[ed] the totality-of-the- circumstances analysis that traditionally has informed probable-cause determinations.” Gates, 462 U.S. at 238 .

2009Illinois v. Gates, 462 U.S. 213, 230 (1983); see White, 496 U.S. at 328-31 .

2008Illinois v. Gates, 462 U.S. 213, 230 (1983); see White, 496 U.S. at 328-31 .

2011The reliability and basis of knowledge of an informant are not independent elements that must be proved in order to find probable cause, Polston v. Commonwealth, 24 Va.App. 738, 744 , 485 S.E.2d 632, 635 (1997), but instead “ ‘are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.’ ” Byrd, 50 Va.App. at 552 , 651 S.E.2d at 419

2011The reliability and basis of knowledge of an informant are not independent elements that must be proved in order to find probable cause, Polston v. Commonwealth, 24 Va.App. 738, 744 , 485 S.E.2d 632, 635 (1997), but instead “ ‘are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.’ ” Byrd, 50 Va.App. at 552 , 651 S.E.2d at 419

2026“The totality-of-the-circumstances test . . . ‘precludes this sort of divide-and-conquer analysis.’” Id. (quoting Arvizu, 534 U.S. at 274 ); Hill v. Commonwealth, 297 Va. 804 , 815 (2019) (same).

2009It has been recognized that a totality of the circumstances analysis, “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting Cortez, 449 U.S. at 417-18 ).

2011In my view, under a totality-of-the-circumstances analysis, the facts in this case regarding the informant’s reliability do not constitute a strong showing of unusual reliability nor was the information provided to the officers and that was subsequently corroborated by them significantly detailed predictions of future events such that it was “ ‘addi tional indicia of reliability.’” 3 Robinson, 53 Va.App. at 738, 675 S.E.2d at 209 (quoting Byrd, 50 Va.App. at 552 , 651 S.E.2d at 419 ).

2011In my view, under a totality-of-the-circumstances analysis, the facts in this case regarding the informant's reliability do not constitute a strong showing of unusual reliability nor was the information provided to the officers and that was subsequently corroborated by them significantly detailed predictions of future events such that it was "`additional indicia of reliability.'" [3] Robinson, 53 Va.App. at 738 , 675 S.E.2d at 209 (quoting Byrd, 50 Va.App. at 552 , 651 S.E.2d at 419 ).

1999See Fare v. Michael C., 442 U.S. 707, 725 (1979). - 6 - The totality approach permits--indeed, it mandates--inquiry into all the circumstances surrounding the interrogation.

1998See Fare v. Michael C., 442 U.S. 707 , 724- 25 (1979).

2026We acknowledge in some cases “[i]t is possible for factors, although insufficient individually, to add up to a reasonable suspicion—that is the nature of the totality of the circumstances test.” Karnes v. Skrutski, 62 F.3d 485, 496 (3d Cir. 1995).

2004“Although the nature of the totality of the circumstances test makes it possible for individually innocuous factors to add up to reasonable suspicion, it is ‘impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation.’” United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997) (quoting Karnes v. Skrutski, 62 F.3d 485, 496 (3d Cir. 1995)). [I]t is for the police to articulate the facts and what their experience reveals as to those facts.

2017See Juniper v. ‐ 18 - Commonwealth, 271 Va. 362, 416 , 626 S.E.2d 383, 418 (2006) (stating “while no single piece of evidence may be sufficient, the ‘combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion’” (quoting Chichester v. Commonwealth, 248 Va. 311, 329 , 448 S.E.2d 638, 650 (1994), cert. denied, 513 U.S. 1166 (1995))).

2017See Juniper v. ‐ 18 - Commonwealth, 271 Va. 362, 416 , 626 S.E.2d 383, 418 (2006) (stating “while no single piece of evidence may be sufficient, the ‘combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion’” (quoting Chichester v. Commonwealth, 248 Va. 311, 329 , 448 S.E.2d 638, 650 (1994), cert. denied, 513 U.S. 1166 (1995))).

2017See United States v. Weaver, 282 F.3d 302, 310 (4th Cir. 2002). -6- In this case, Allen did not activate his emergency lights or siren and he parked some distance from the suspect car.

2006See United States v. Weaver, 282 F.3d 302, 310 (4th Cir. 2002).

2017See Juniper v. ‐ 18 - Commonwealth, 271 Va. 362, 416 , 626 S.E.2d 383, 418 (2006) (stating “while no single piece of evidence may be sufficient, the ‘combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion’” (quoting Chichester v. Commonwealth, 248 Va. 311, 329 , 448 S.E.2d 638, 650 (1994), cert. denied, 513 U.S. 1166 (1995))).

2017See Juniper v. ‐ 18 - Commonwealth, 271 Va. 362, 416 , 626 S.E.2d 383, 418 (2006) (stating “while no single piece of evidence may be sufficient, the ‘combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion’” (quoting Chichester v. Commonwealth, 248 Va. 311, 329 , 448 S.E.2d 638, 650 (1994), cert. denied, 513 U.S. 1166 (1995))).

2017See Juniper v. ‐ 18 - Commonwealth, 271 Va. 362, 416 , 626 S.E.2d 383, 418 (2006) (stating “while no single piece of evidence may be sufficient, the ‘combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion’” (quoting Chichester v. Commonwealth, 248 Va. 311, 329 , 448 S.E.2d 638, 650 (1994), cert. denied, 513 U.S. 1166 (1995))).

2017See Juniper v. ‐ 18 - Commonwealth, 271 Va. 362, 416 , 626 S.E.2d 383, 418 (2006) (stating “while no single piece of evidence may be sufficient, the ‘combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion’” (quoting Chichester v. Commonwealth, 248 Va. 311, 329 , 448 S.E.2d 638, 650 (1994), cert. denied, 513 U.S. 1166 (1995))).

2015Bass v. Commonwealth, 259 Va. 470 , 525 S.E.2d 921, 924 (2000).

2015Bass v. Commonwealth, 259 Va. 470 , 525 S.E.2d 921, 924 (2000).

2011“In ‘applying the totality-of-the-circumstances analysis/ the [United States] Supreme Court has ‘consistently recognized the value of corroboration of details of an informant’s tip by independent police work.’ ” McGuire, 31 Va.App. at 594 , 525 S.E.2d at 48 (quoting Gates, 462 U.S. at 241 , 103 S.Ct. at 2334 ); see also United States v. Coffee, 434 F.3d 887, 892 (6th Cir.2006) (holding a particularly reliable informant tip with a high degree of reliability and corroboration of information supported probable cause).

2011“In ‘applying the totality-of-the-circumstances analysis/ the [United States] Supreme Court has ‘consistently recognized the value of corroboration of details of an informant’s tip by independent police work.’ ” McGuire, 31 Va.App. at 594 , 525 S.E.2d at 48 (quoting Gates, 462 U.S. at 241 , 103 S.Ct. at 2334 ); see also United States v. Coffee, 434 F.3d 887, 892 (6th Cir.2006) (holding a particularly reliable informant tip with a high degree of reliability and corroboration of information supported probable cause).

2011Gates directs courts to assess whether officers acting on an informant’s tip had probable cause “by examining all of the facts known to officers leading up to the arrest [or search], and then asking “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer,’ amount to probable cause.” United States v. White, 549 F.3d 946, 950 (4th Cir.2008) (quoting Ornelas, 517 U.S. at 696 , 116 S.Ct. at 1661-62 ).

2011Gates directs courts to assess whether officers acting on an informant's tip had probable cause "by examining all of the facts known to officers leading up to the arrest [or search], and then asking `whether these historical facts, viewed from the standpoint of an objectively reasonable police officer,' amount to probable cause." United States v.White, 549 F.3d 946, 950 (4th Cir.2008) (quoting Ornelas, 517 U.S. at 696 , 116 S.Ct. at 1661-62 ).

2009Probable cause takes into account the “totality of the circumstances surrounding the search,” Cost v. Commonwealth, 275 Va. 246, 251 , 657 S.E.2d 505, 507 (2008), because the “question whether the Fourth Amendment has been violated is always ‘a question of fact to be determined from all the circumstances.’” Malbrough v. Commonwealth, 275 Va. 163, 168 , 655 S.E.2d 1, 3 (2008) (emphasis added and citations omitted); see generally Illinois v. Gates, 462 U.S. 213, 238 (1983) (reaffirming “the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations”).

2009Probable cause takes into account the “totality of the circumstances surrounding the search,” Cost v. Commonwealth, 275 Va. 246, 251 , 657 S.E.2d 505, 507 (2008), because the “question whether the Fourth Amendment has been violated is always ‘a question of fact to be determined from all the circumstances.’” Malbrough v. Commonwealth, 275 Va. 163, 168 , 655 S.E.2d 1, 3 (2008) (emphasis added and citations omitted); see generally Illinois v. Gates, 462 U.S. 213, 238 (1983) (reaffirming “the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations”).

2009Probable cause takes into account the “totality of the circumstances surrounding the search,” Cost v. Commonwealth, 275 Va. 246, 251 , 657 S.E.2d 505, 507 (2008), because the “question whether the Fourth Amendment has been violated is always ‘a question of fact to be determined from all the circumstances.’” Malbrough v. Commonwealth, 275 Va. 163, 168 , 655 S.E.2d 1, 3 (2008) (emphasis added and citations omitted); see generally Illinois v. Gates, 462 U.S. 213, 238 (1983) (reaffirming “the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations”).

2009Probable cause takes into account the “totality of the circumstances surrounding the search,” Cost v. Commonwealth, 275 Va. 246, 251 , 657 S.E.2d 505, 507 (2008), because the “question whether the Fourth Amendment has been violated is always ‘a question of fact to be determined from all the circumstances.’” Malbrough v. Commonwealth, 275 Va. 163, 168 , 655 S.E.2d 1, 3 (2008) (emphasis added and citations omitted); see generally Illinois v. Gates, 462 U.S. 213, 238 (1983) (reaffirming “the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations”).

2005See, e.g., Harris v. Commonwealth, 38 Va. App. 680, 690 , 568 S.E.2d 385, 390 (2002). “[M]erely advising [an individual] that a search warrant could be obtained is not coercion,” Bosworth v. Commonwealth, 7 Va. App. 567, 571 , 375 S.E.2d 756, 758 (1989), but it is a relevant factor in the totality-of-the-circumstances analysis.

2005See, e.g., Harris v. Commonwealth, 38 Va. App. 680, 690 , 568 S.E.2d 385, 390 (2002). “[M]erely advising [an individual] that a search warrant could be obtained is not coercion,” Bosworth v. Commonwealth, 7 Va. App. 567, 571 , 375 S.E.2d 756, 758 (1989), but it is a relevant factor in the totality-of-the-circumstances analysis.

2005The fact that a suspect is in custody or under investigative detention does not vitiate consent, Reynolds v. Commonwealth, 9 Va. App. 430, 439 , 388 S.E.2d 659, 665 (1990), but whether the officers involved have made a display of authority or show of force is a factor for consideration, Johnson v. Commonwealth, 26 Va. App. 674, 689 , 496 S.E.2d 143, 150 (1998).

2005The fact that a suspect is in custody or under investigative detention does not vitiate consent, Reynolds v. Commonwealth, 9 Va. App. 430, 439 , 388 S.E.2d 659, 665 (1990), but whether the officers involved have made a display of authority or show of force is a factor for consideration, Johnson v. Commonwealth, 26 Va. App. 674, 689 , 496 S.E.2d 143, 150 (1998).

2005See, e.g., Harris v. Commonwealth, 38 Va. App. 680, 690 , 568 S.E.2d 385, 390 (2002). “[M]erely advising [an individual] that a search warrant could be obtained is not coercion,” Bosworth v. Commonwealth, 7 Va. App. 567, 571 , 375 S.E.2d 756, 758 (1989), but it is a relevant factor in the totality-of-the-circumstances analysis.

2005See, e.g., Harris v. Commonwealth, 38 Va. App. 680, 690 , 568 S.E.2d 385, 390 (2002). “[M]erely advising [an individual] that a search warrant could be obtained is not coercion,” Bosworth v. Commonwealth, 7 Va. App. 567, 571 , 375 S.E.2d 756, 758 (1989), but it is a relevant factor in the totality-of-the-circumstances analysis.

2003J.L., 529 U.S. at 271, 120 S.Ct. at 1379 . [8] The reason J.L. nevertheless engaged the reliability analysis was because reasonable suspicion, under the totality of the circumstances test, requires that both "quantity and quality" factors be considered, allowing for the "requisite quantum" of one to affect necessarily the other.

2003J.L., 529 U.S. at 271, 120 S.Ct. at 1379 . [8] The reason J.L. nevertheless engaged the reliability analysis was because reasonable suspicion, under the totality of the circumstances test, requires that both "quantity and quality" factors be considered, allowing for the "requisite quantum" of one to affect necessarily the other.

2011“When a confidential informant provides the basis for probable cause, there are two considerations that are particularly relevant to our analysis: (1) the veracity or reliability of the informant and (2) the informant’s basis of knowledge.” Byrd, 50 Va.App. at 551 , 651 S.E.2d at 419 (citing Gates, 462 U.S. at 230 , 103 S.Ct. at 2328 ); see also Robinson, 53 Va.App. at 738-40 , 675 S.E.2d at 209-11 ; Askew, 38 Va.App. at 723 , 568 S.E.2d at 406 ; Russell, 33 Va.App. at 610-11 , 535 S.E.2d at 702 ; McGuire, 31 Va.App. at 595-96 , 525 S.E.2d at 48 .

2011“When a confidential informant provides the basis for probable cause, there are two considerations that are particularly relevant to our analysis: (1) the veracity or reliability of the informant and (2) the informant’s basis of knowledge.” Byrd, 50 Va.App. at 551 , 651 S.E.2d at 419 (citing Gates, 462 U.S. at 230 , 103 S.Ct. at 2328 ); see also Robinson, 53 Va.App. at 738-40 , 675 S.E.2d at 209-11 ; Askew, 38 Va.App. at 723 , 568 S.E.2d at 406 ; Russell, 33 Va.App. at 610-11 , 535 S.E.2d at 702 ; McGuire, 31 Va.App. at 595-96 , 525 S.E.2d at 48 .

2011“When a confidential informant provides the basis for probable cause, there are two considerations that are particularly relevant to our analysis: (1) the veracity or reliability of the informant and (2) the informant’s basis of knowledge.” Byrd, 50 Va.App. at 551 , 651 S.E.2d at 419 (citing Gates, 462 U.S. at 230 , 103 S.Ct. at 2328 ); see also Robinson, 53 Va.App. at 738-40 , 675 S.E.2d at 209-11 ; Askew, 38 Va.App. at 723 , 568 S.E.2d at 406 ; Russell, 33 Va.App. at 610-11 , 535 S.E.2d at 702 ; McGuire, 31 Va.App. at 595-96 , 525 S.E.2d at 48 .

2011“When a confidential informant provides the basis for probable cause, there are two considerations that are particularly relevant to our analysis: (1) the veracity or reliability of the informant and (2) the informant’s basis of knowledge.” Byrd, 50 Va.App. at 551 , 651 S.E.2d at 419 (citing Gates, 462 U.S. at 230 , 103 S.Ct. at 2328 ); see also Robinson, 53 Va.App. at 738-40 , 675 S.E.2d at 209-11 ; Askew, 38 Va.App. at 723 , 568 S.E.2d at 406 ; Russell, 33 Va.App. at 610-11 , 535 S.E.2d at 702 ; McGuire, 31 Va.App. at 595-96 , 525 S.E.2d at 48 .

2011The reliability and basis of knowledge of an informant are not independent elements that must be proved in order to find probable cause, Polston v. Commonwealth, 24 Va.App. 738, 744 , 485 S.E.2d 632, 635 (1997), but instead “ ‘are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.’ ” Byrd, 50 Va.App. at 552 , 651 S.E.2d at 419

2011The reliability and basis of knowledge of an informant are not independent elements that must be proved in order to find probable cause, Polston v. Commonwealth, 24 Va.App. 738, 744 , 485 S.E.2d 632, 635 (1997), but instead “ ‘are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.’ ” Byrd, 50 Va.App. at 552 , 651 S.E.2d at 419

2009It has been recognized that a totality of the circumstances analysis, “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting Cortez, 449 U.S. at 417-18 ).

1993Virginia courts apply the totality of the circumstances test, articulated by the United States Supreme Court in United States v. Cortez, 449 U.S. 411 (1981).

2024Rickman made clear that “a totality-of-the-circumstances analysis” applies in determining whether there is cohabitation under Code § 18.2-57.2, and “[t]he factors to be applied ‘are unique to each case and how much weight, if any, to give to each of these factors must be decided on a case- by-case basis by the trier of fact.’” Id. at 557 (quoting State v. Williams, 683 N.E.2d 1126, 1130 (Ohio Ct. App. 1997)).

2023Under a totality of the circumstances analysis, those circumstances provided sufficient evidence to support the circuit court’s conclusion that the relationship between Dupris and Hackett was one which fell within the legislative intendment of Code § 18.2-57.2, regardless of the “exact living circumstances of the victim and perpetrator.” Id. (quoting Williams, 683 N.E.2d at 1129 ).

2005The fact that a suspect is in custody or under investigative detention does not vitiate consent, Reynolds v. Commonwealth, 9 Va. App. 430, 439 , 388 S.E.2d 659, 665 (1990), but whether the officers involved have made a display of authority or show of force is a factor for consideration, Johnson v. Commonwealth, 26 Va. App. 674, 689 , 496 S.E.2d 143, 150 (1998).

2005The fact that a suspect is in custody or under investigative detention does not vitiate consent, Reynolds v. Commonwealth, 9 Va. App. 430, 439 , 388 S.E.2d 659, 665 (1990), but whether the officers involved have made a display of authority or show of force is a factor for consideration, Johnson v. Commonwealth, 26 Va. App. 674, 689 , 496 S.E.2d 143, 150 (1998).