Present: Kinser, C.J., Hassell, Lemons, Goodwyn, and Millette,
JJ., and Lacy and Koontz, S.JJ. 1
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 092561 JUSTICE LEROY F. MILLETTE, JR.
April 21, 2011
COREY TAYVON SMITH
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we address whether a frisk of a passenger
conducted during a valid traffic stop was supported by
reasonable suspicion based upon an alert by a police computer
system that the passenger was “probably armed and a narcotics
seller/user.”
BACKGROUND
Corey Tayvon Smith was a passenger in a vehicle stopped on
September 18, 2007 by Richmond police officers, Robert Hedman
and Steven Moore, for a broken rear brake light. The officers
asked the driver and Smith for their identification and
processed that information using the Richmond police database
known as PISTOL (Police Information System Totally On Line),
which was accessed through a computer in the police patrol car.
The PISTOL database returned an “alert” stating that Smith was
“probably armed and a narcotics seller/user.” Upon receiving
1
Former Chief Justice Hassell presided and participated in
the hearing and decision of this case before his death on
February 9, 2011; Justice Koontz participated in the hearing and
decision of this case prior to the effective date of his
retirement on February 1, 2011; Justice Kinser was sworn in as
Chief Justice on February 1, 2011.
the PISTOL alert, Officer Moore asked Smith to “step out” of the
vehicle and Smith complied. Smith denied having any weapons or
drugs on his person in response to Officer Moore’s inquiry.
Officer Moore stated that he was going to pat Smith down to make
sure he did not have any weapons. Smith replied to Officer
Moore, “[Y]ou’re not going to search me.” During the pat down,
Officer Moore felt a gun in Smith’s front left pocket. Officer
Moore retrieved a .38 caliber “two-shot Derringer” from Smith’s
pocket.
Smith was arrested and charged with possession of a firearm
by a convicted felon in violation of Code § 18.2-308.2. Prior
to trial, Smith filed a motion to suppress the evidence obtained
as a result of the pat down arguing that the search, based
solely on the information obtained from the PISTOL database, was
unreasonable and in violation of the Fourth Amendment to the
United States Constitution. During the suppression hearing,
Detective Timothy Neville testified that he obtained a warrant
on October 18, 2006 – eleven months before the incident at issue
in this case – for Smith’s arrest for possession of a firearm by
a convicted felon. Detective Neville further testified that
Officer Roger Harris arrested Smith on the warrant and placed
the arrest information in the PISTOL system. Detective Neville
stated that this information would have caused the alert
“probably armed” to be put into the PISTOL system.
2
Smith argued that for a frisk to be lawful, it must be
based upon reasonable suspicion of present criminal activity.
Smith continued:
If this were to be allowed, basically anybody that’s
been convicted of a firearm offense within maybe a
certain period of time, can be patted down with
absolutely no other indication of suspicion for any
other criminal activity any time the police come into
contact with them. And I would suggest to the Court
that that has to be clearly wrong.
In response, the Commonwealth argued that because PISTOL is
the police’s own system, “there is inherent[] [re]liability
[and] that [the police] should be able to rely on [PISTOL
alerts] when they are out in the field doing their work.” The
Commonwealth further asserted the police should be permitted to
use PISTOL alerts not only for determining whether criminal
activity is afoot, but in order to protect themselves.
After hearing argument from counsel and taking the motion
under advisement, the trial court denied Smith’s motion to
suppress, stating:
The Court believes that under the circumstances of the
search, the stop being appropriate, and there not
being any challenge to the stop, and the officer
receiving information with regards to the fact that
the person had been known to carry firearms, did not
act impermissibly in conducting a pat-down in the
search, and the same was appropriate for purposes of
the officer’s safety.
Smith entered a conditional guilty plea to the charge. At
the hearing for the entry of the plea, the Commonwealth
3
introduced a criminal conviction order showing that Smith had
previously been convicted of both possession of a firearm by a
person convicted of a felony, with an offense date of October
18, 2006, and possession of cocaine with intent to distribute,
with an offense date of March 13, 2007.
On appeal to the Court of Appeals, Smith asserted that the
trial court erred in denying his motion to suppress. The Court
of Appeals agreed and reversed his conviction. Smith v.
Commonwealth, 55 Va. App. 30, 54, 683 S.E.2d 316, 328 (2009).
In considering whether Officers Hedman and Moore had reasonable
suspicion to frisk Smith, the Court of Appeals held that the
holding of United States v. Hensley, 469 U.S. 221, 229-33
(1985), “permits imputation of the knowledge of the officers who
entered the information in the police department’s PISTOL system
to Officers Hedman and Moore.” Smith, 55 Va. App. at 42-43, 683
S.E.2d at 322. According to the Court of Appeals,
[t]he officers who entered the data into PISTOL were
not shown to have done so based on any more
information than that [Smith] had been arrested for
possession of a firearm by a convicted felon for an
incident that had occurred eleven months earlier and
possession of cocaine with an intent to distribute for
an incident that had occurred six months earlier.
Id. at 54, 683 S.E.2d at 328.
Even though knowledge of the two arrests was imputed to
Officers Hedman and Moore, the Court of Appeals concluded that
“in the absence of some contemporaneous indication that the
4
individual might be carrying a weapon, these facts do not
provide reasonable suspicion to believe he may be presently
armed and dangerous.” Id. at 46, 683 S.E.2d at 324.
We awarded the Commonwealth this appeal.
DISCUSSION
In its appeal to this Court, the Commonwealth raised a
number of assignments of error generally asserting that the
PISTOL alert combined with the public’s interest in officer
safety qualified as sufficient reasonable suspicion to conduct a
pat down search for weapons under Terry v. Ohio, 392 U.S. 1
(1968). In our view, the record supports the conclusion that
Officers Hedman and Moore had reasonable suspicion to justify
the frisk. 2
The standard of review in this case is well settled.
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.
Jones v. Commonwealth, 279 Va. 665, 670, 691 S.E.2d 801, 803
(2010).
2
Having reached this conclusion, we need not address other
issues raised by the Commonwealth.
5
As an initial matter, it is undisputed that the traffic
stop was valid. The only issue in this case is whether the
subsequent frisk was supported by reasonable suspicion.
Under settled constitutional principles, once a law
enforcement officer has conducted a valid traffic stop, the
officer is justified in conducting a frisk of the person for
weapons if the officer reasonably suspects that the person
stopped is armed and dangerous. Arizona v. Johnson, 555 U.S.
___, ___, 129 S.Ct. 781, 784 (2009). In Johnson, the Court
clarified that Terry stop and frisk principles apply to traffic
stops:
[I]n a traffic-stop setting, the first Terry condition
– a lawful investigatory stop--is met whenever it is
lawful for police to detain an automobile and its
occupants pending inquiry into a vehicular violation.
The police need not have, in addition, cause to
believe any occupant of the vehicle is involved in
criminal activity. To justify a patdown of the driver
or a passenger during a traffic stop, however, just as
in the case of a pedestrian reasonably suspected of
criminal activity, the police must harbor reasonable
suspicion that the person subjected to the frisk is
armed and dangerous.
Id. at ___, 129 S.Ct. at 784.
In explaining the officer’s authority to conduct such a
frisk, the Supreme Court has also stated:
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
6
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, 392 U.S. at 27 (citations omitted).
The Supreme Court recently reiterated its recognition that
“traffic stops are especially fraught with danger to police
officers.” Johnson, 555 U.S. at ___, 129 S.Ct. at 786 (internal
quotation marks omitted). Considering the danger posed to
officers during traffic stops, the Supreme Court has held that
“once a motor vehicle has been lawfully detained for a traffic
violation, the police officers may order the driver to get out
of the vehicle without violating the Fourth Amendment’s
proscription of unreasonable searches and seizures.”
Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977).
Twenty years later, the Supreme Court extended the Mimms
rule to passengers, holding that an officer may order passengers
to get out of the vehicle during a valid traffic stop. Maryland
v. Wilson, 519 U.S. 408, 415 (1997). In Wilson, the Court
recognized that “the same weighty interest in officer safety is
present regardless of whether the occupant of the stopped car is
a driver or passenger.” Id. at 413. The Court emphasized that
the risk of a violent encounter during a traffic stop “stems not
from the ordinary reaction of a motorist stopped for a speeding
violation, but from the fact that evidence of a more serious
7
crime might be uncovered during the stop.” Id. at 414. Lastly,
the Supreme Court has stated that “officers who conduct routine
traffic stop[s] may perform a pat-down of a driver and any
passengers upon reasonable suspicion that they may be armed and
dangerous.” Johnson, 555 U.S. at ___, 129 S.Ct. at 787
(internal quotation marks omitted).
In Terry, the United States Supreme Court, in announcing
the “stop and frisk” rule, made this statement relevant to
officer safety:
Certainly it would be unreasonable to require that
police officers take unnecessary risks in the
performance of their duties. American criminals have
a long tradition of armed violence, and every year in
this country many law enforcement officers are killed
in the line of duty, and thousands more are wounded.
Virtually all of these deaths and a substantial
portion of the injuries are inflicted with guns and
knives.
In view of these facts, we cannot blind ourselves
to the need for law enforcement officers to protect
themselves and other prospective victims of violence
in situations where they may lack probable cause for
an arrest. When an officer is justified in believing
that the individual whose suspicious behavior he is
investigating at close range is armed and presently
dangerous to the officer or to others, it would appear
to be clearly unreasonable to deny the officer the
power to take necessary measures to determine whether
the person is in fact carrying a weapon and to
neutralize the threat of physical harm.
Terry, 392 U.S. at 23-24.
In the context of a traffic stop in which multiple
individuals were present in the vehicle, the officer’s knowledge
8
of the driver’s, or the occupants’, prior criminal history is
highly relevant in determining whether the officer had
reasonable suspicion to conduct a pat down for his or her
safety, particularly when that prior criminal history included
weapons and dangerous narcotics violations. In this case, after
conducting a valid traffic stop, Officers Hedman and Moore were
alerted via the PISTOL system that Smith was “probably armed and
a narcotics seller/user.” We agree with the Court of Appeals
that the knowledge of the officers who entered the criminal
history into the PISTOL system is imputed to Officers Hedman and
Moore for purposes of assessing whether they had reasonable
suspicion to frisk Smith. Smith v. Commonwealth, 55 Va. App.
30, 42-43, 683 S.E.2d 316, 322-23 (2009); see also United States
v. Hensley, 469 U.S. 221, 229-33 (1985).
In Hensley, the United States Supreme Court addressed
whether police officers may stop an individual who is the
subject of a “wanted flyer” while they attempt to find out if an
arrest warrant had been issued. 469 U.S. at 223. The Court
held that where officers issue a flyer based upon reasonable
suspicion that an individual had committed a criminal offense,
and other officers, who lack personal knowledge amounting to
reasonable suspicion, objectively rely on the flyer to conduct a
stop, the validity of the stop turns on whether the officers who
9
issued the flyer had the requisite reasonable suspicion. Id. at
232.
We agree with the Court of Appeals that “the imputation-of-
knowledge principles used in Hensley to determine whether
reasonable suspicion existed for a stop also apply to
determining whether an individual, already being detained in the
course of a legitimate stop, may be subjected to a weapons
frisk.” Smith, 55 Va. App. at 43, 683 S.E.2d at 323. In
determining whether the Fourth Amendment was violated, the issue
before us is whether the information known to the officer making
that PISTOL entry – coupled with the personal knowledge of
Officers Hedman and Moore – was sufficient to provide reasonable
suspicion for the frisk.
The PISTOL system informed Officers Hedman and Moore that
Smith was “probably armed and a narcotics seller/user.”
Applying the imputation principles enunciated in Hensley,
Officers Hedman and Moore also knew that Smith was arrested for
possession of a firearm by a convicted felon eleven months prior
to the stop at issue in this case. This information, as
Detective Neville testified at the hearing on Smith’s motion to
suppress, was entered into the PISTOL system by Officer Harris.
Detective Neville stated that this entry would have resulted in
the “probably armed” portion of the alert. Therefore, in
assessing the PISTOL alert, Officers Hedman and Moore had a
10
reasonable belief that Smith was a convicted felon, and that he
had been charged and arrested for possession of a firearm by a
convicted felon eleven months earlier.
The Court of Appeals went further and assumed that the
drug-related portion of the alert was based on Smith’s act of
possessing with intent to distribute cocaine, which occurred six
months prior to the stop that is at issue in this case. Smith,
55 Va. App. at 45, 683 S.E.2d at 323. The Court of Appeals held
that the record in this case established that the data entry
officers also knew that Smith had been arrested for possessing
cocaine with intent to distribute six months prior to the stop
at issue in this case. Id. at 45, 683 S.E.2d at 324.
Accordingly, the Court of Appeals imputed this knowledge to
Officers Hedman and Moore in assessing whether the officers had
reasonable suspicion to justify the frisk of Smith. In their
briefs and during oral argument, the Commonwealth and Smith have
adopted the Court of Appeals’ position that knowledge of both
arrests was imputed to Officers Hedman and Moore.
The details of Smith’s criminal record, the knowledge of
which is imputed to the officers based on the language appearing
in the PISTOL alert, and reasonable inferences to be drawn
therefrom are critical in determining whether the officers had
reasonable suspicion to believe Smith was armed and dangerous.
First, the officers knew that Smith was a convicted felon.
11
Second, they knew that despite having been convicted of a felony
that prohibited his possession of a firearm, he was arrested
eleven months prior to this encounter for possession of a
firearm by a convicted felon. Third, the officers knew that
just five months after his arrest for possession of a firearm,
which was also just six months prior to the date of this
encounter, Smith was arrested for possessing cocaine with the
intent to distribute, an offense that is closely associated with
firearms due to the danger inherent in the drug trade. See
Jones v. Commonwealth, 272 Va. 692, 701 & n.3, 636 S.E.2d 403,
407 & n.3 (2006); United States v. Grogins, 163 F.3d 795, 799
(4th Cir. 1998) (“the connection between illegal drug operations
and guns in our society is a tight one”).
We find that a reasonably prudent police officer, in light
of his experience, and with due regard to his own safety when
executing a valid traffic stop, has reasonable suspicion that an
individual may be armed and dangerous based upon the officer’s
knowledge of the individual’s prior felony conviction, followed
by repeated charges over the previous eleven months involving
firearms and a drug offense closely associated with firearms.
The remoteness of arrests and convictions or an absence of
weapons-related or dangerous offenses in an individual’s
criminal history may be such that the individual’s criminal
history is not sufficient for an officer to reasonably be
12
concerned about his safety or the safety of others in order to
establish reasonable suspicion for a frisk. However, in this
case, Smith’s criminal history of a prior felony conviction, his
arrest eleven months prior for possession of a firearm by a
convicted felon, and his arrest six months prior for possession
of cocaine with the intent to distribute, was sufficient to
provide the officers with reasonable suspicion that Smith may be
armed and dangerous, justifying a pat-down or limited search of
his outer clothing for weapons.
The cases cited by the dissent do not support the
proposition that a prior criminal record involving arrests for
weapons and intent to distribute narcotics violations cannot
provide reasonable suspicion to support a frisk of a passenger
conducted during a valid traffic stop, without additional
evidence of the suspect’s appearance, or behavior, or the
circumstances of the encounter providing an indication of
criminal activity. Further, those cases do not support the
dissent’s belief that the majority opinion is at odds with
United States Supreme Court precedent and departs from
established Fourth Amendment jurisprudence.
The majority of the cases cited by the dissent involve the
first prong of the Terry analysis, that a brief investigatory
stop of persons and vehicles is justified if the officer’s
action is supported by reasonable suspicion that criminal
13
activity may be afoot. United States v. Arvizu, 534 U.S. 266,
273 (2002). For example, in United States v. Foster, 634 F.3d
243, 245-26, 249 (4th Cir. 2011), a recent decision by the
United States Court of Appeals for the Fourth Circuit, cited by
the dissent, evidence discovered in the search of a glove box
was suppressed based upon the improper stop of the vehicle.
Nowhere in our opinion do we state that a police officer armed
with knowledge of a suspect’s criminal record, even a record
including firearms and narcotics, is justified in stopping an
individual based solely upon that record, without additional
circumstances supporting a reasonable suspicion that a crime has
occurred or is occurring.
As the Supreme Court clarified in Arizona v. Johnson, a
“stop and frisk” is constitutionally permissible if two
conditions are met. 555 U.S. at ___, 129 S.Ct. at 784. The
first condition is that the investigatory stop must be lawful.
Id. As in this case, in which Smith was a passenger in a
vehicle validly stopped for a traffic offense, that requirement
is met when the police officer reasonably suspects that a person
stopped (the driver) is committing or has committed a violation
of the laws regulating the operation of motor vehicles. The
second condition is met when the police officer reasonably
suspects that the person stopped (including a passenger in the
stopped vehicle) is armed and dangerous. Id.
14
Although reasonable suspicion is required for both the
initial stop or seizure and for the subsequent frisk, once there
is reasonable suspicion that a crime has occurred or may be
occurring to justify a stop, there does not need to be
additional reasonable suspicion that the passenger in the
lawfully stopped vehicle is himself personally involved in
criminal activity. The inquiry turns on whether there is
reasonable suspicion that the person subjected to the frisk is
armed and dangerous. Id.
Among the cases cited by the dissent, several cases do
involve frisks. While several of those cases do state that a
criminal record, standing alone, cannot create a reasonable
suspicion to support a search or seizure, in none of the cases
was a frisk suppressed based upon the reasoning argued by the
dissent. For example, in State v. Valentine, 636 A.2d 505, 510-
11 (N.J. 1994), a case affirming a conviction after denial of a
challenge to a frisk, the New Jersey Supreme Court first stated,
with a citation only to Terry, that a suspect’s criminal history
alone is not sufficient to justify a frisk of a suspect or to
justify a frisk of a suspect once stopped. But then,
immediately thereafter, the court states that “[i]n many
instances, a reasonable inference may be drawn that a suspect is
armed and dangerous from the fact that he or she is known to
have been armed and dangerous on previous occasions.” Id. at
15
511. And in State v. Giltner, 537 P.2d 14, 17 (Haw. 1975), also
relied on by the dissent, evidence obtained by a frisk was
suppressed because the seizure of the person was found to be
“constitutionally impermissible.” According to the Supreme
Court of Hawaii, while the officer’s personal knowledge that the
accused was armed on a previous occasion “might have been an
important factor in determining the legality of the frisk
itself, it could not supply the justification for the initial
seizure.” Id.
It is not the fact that Smith had a criminal record that
supplied the officers in this case with reasonable suspicion
that Smith was armed and dangerous. It was the specific
information contained in the criminal record that supplied the
officers with information that Smith, a felon, had been armed
and dangerous on previous occasions based on his arrests for
unlawful possession of a firearm and possession with intent to
distribute cocaine.
In McCain v. Commonwealth, 275 Va. 546, 554-55, 659 S.E.2d
512, 516-17 (2008), a case (like this one) in which nothing
furtive or overtly illegal was observed about the vehicle’s
passenger by the officers on the scene of the traffic stop
justifying “reasonable, individualized suspicion” that the
passenger was armed and dangerous, this Court held that the
fruits of a pat-down search should have been suppressed because
16
the only extrinsic information available to the officers was
that the vehicle’s passenger had merely recently visited a
certain home where narcotics were thought to be trafficked, some
months before. In the present case, the PISTOL report was
received, containing further important criminal history
information, which established the reasonable inference that
Smith may be armed and dangerous from the fact that he was known
to have been armed and dangerous on previous occasions. This
information provided reasonable, individualized grounds for
suspicion that Smith “may be armed and dangerous.” Johnson, 555
U.S. at ___, ___, 129 S.Ct. at 784, 787; Terry, 392 U.S. at 23-
24, 27.
The proper function of the PISTOL system includes alerting
police officers who have made valid stops to information that,
in and of itself, may cause a prudent officer to reasonably
suspect that an individual may be armed and dangerous. In this
case, the unchallenged stop is an intrusion that was justified
by the officers’ investigation of a suspected traffic offense.
The officers’ requiring the occupants to exit the vehicle is
justified by case law, which balances the interest in officers’
safety against the minimal intrusion of requiring the occupants
to exit. Upon learning of Smith’s criminal record of a felony
conviction and recent arrests for firearm and narcotics
violations, the officers, for their own safety as well as the
17
safety of the community, were justified in questioning Smith
further. Not being relieved of their safety concerns by Smith’s
denial of having weapons or drugs on his person, the officers
were entitled to follow up the questioning with a limited search
for weapons. The frisk, which is only a limited pat-down of the
outer clothing for weapons, was justified by the knowledge of
Smith’s specific criminal history involving weapons and
narcotics, which was imputed to the officers based upon the
PISTOL system. Only after he felt the gun during the frisk was
the officer justified in reaching into Smith’s pocket and
retrieving the gun.
CONCLUSION
For all of the foregoing reasons, we will reverse the
judgment of the Court of Appeals, and enter final judgment
affirming the conviction.
Reversed and final judgment.
JUSTICE GOODWYN, with whom SENIOR JUSTICE KOONTZ joins, and
JUSTICE HASSELL concurs, dissenting.
The majority holds that law enforcement officers could
reasonably suspect Corey Tayvon Smith was armed and dangerous
and frisk him because of Smith’s past criminal record, even
though there was nothing about his appearance or behavior or the
circumstances under which the police came in contact with him
that would indicate that Smith was presently involved in
18
criminal activity or armed and presently dangerous. I believe
that the majority opinion is at odds with United States Supreme
Court precedent regarding rights afforded under the Fourth
Amendment and departs from established Fourth Amendment
jurisprudence. As evidenced by the majority’s inability to cite
any precedent supporting its position, no other court in the
United States has found that an officer can conduct a frisk
based solely on knowledge of an individual’s criminal record.
Therefore, I must respectfully dissent.
The only aspect in the majority opinion disputed by this
dissent concerns whether the officers had reasonable suspicion
to frisk Smith. It is undisputed that the initial stop of the
vehicle was proper. It is also undisputed that the officers’
request for Smith’s identification and their background check on
him were proper. Additionally, it is undisputed that upon
viewing the PISTOL alert that Smith was “probably armed and a
narcotics seller/user,” the officers could order Smith out of
the vehicle and vigilantly observe him during the traffic stop.
However, without any additional factor suggesting Smith was
armed and presently dangerous, the officers could not frisk
Smith based solely on the PISTOL alert, because under settled
constitutional principles, a generalized concern for officer
safety is not enough to justify the frisk of a citizen. A
police officer must be able to point to specific and articulable
19
facts showing that criminal activity may be afoot or that the
person may be armed and presently dangerous in order to justify
a pat down search. See McCain v. Commonwealth, 275 Va. 546,
552, 555-56, 659 S.E.2d 512, 516, 518 (2008) (majority opinion
and dissent, both citing Terry v. Ohio, 392 U.S. 1 (1968)).
Smith was a passenger in a vehicle stopped because of a
defective brake light. After stopping the vehicle in which
Smith was riding, the officers requested and obtained
identification information, not only from the driver but also
from Smith. The requested information was willingly provided.
The officers checked and determined that there were no
outstanding warrants for Smith’s arrest. However, upon
receiving an alert from the PISTOL system stating that Smith was
“probably armed and a narcotics seller/user,” an officer asked
Smith to step out of the vehicle and proceeded to frisk Smith.
Smith was cooperative until he declined the officer’s request to
frisk him. The officers removed Smith from the vehicle and
searched him solely because of the PISTOL alert.
As pointed out by the Court of Appeals and by the majority,
the Fourth Amendment analysis concerning whether the PISTOL
alert supports the existence of a reasonable suspicion must
focus on the facts known by the person or persons who entered
the information into the PISTOL system. Knowledge of those
facts may be imputed to Officers Hedman and Moore in determining
20
whether there was sufficient reasonable suspicion to justify
frisking Smith.
According to the majority, the facts, properly imputed to
have been known by the officers because of the PISTOL alert,
were that Smith was a felon who had been arrested for possession
of a firearm eleven months prior to the stop and that he had
been arrested for possessing cocaine with intent to distribute
six months prior to the stop. The majority concludes that
knowledge of those facts concerning Smith’s criminal record was
sufficient, without more, to create a reasonable suspicion that
Smith was armed and presently dangerous. Established Fourth
Amendment jurisprudence is to the contrary.
Under well-settled principles of law, police officers may
stop a person for the purpose of investigating possible criminal
behavior even though no probable cause exists for an arrest.
Terry, 392 U.S. at 27. A stop is permissible so long as the
officer has reasonable, articulable suspicion that criminal
activity may be afoot. United States v. Sokolow, 490 U.S. 1, 7
(1989). During the course of a traffic stop, an officer may
take certain steps to protect himself, such as asking the driver
and any passengers to exit the vehicle. Maryland v. Wilson, 519
U.S. 408, 414-15 (1997). However, “because a frisk or ‘pat-
down’ is substantially more intrusive than an order to exit a
21
vehicle, . . . an officer must have justification for a frisk or
‘pat-down’ beyond the mere justification for the traffic stop.”
United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998).
During a Terry stop, an officer may frisk a person if he
develops reasonable suspicion during the stop to believe the
particular person to be frisked is armed and dangerous. Knowles
v. Iowa, 525 U.S. 113, 117-18 (1998); see Adams v. Williams, 407
U.S. 143, 146 (1972). Thus, there must be reasonable suspicion
justifying the stop and reasonable suspicion justifying a frisk
which occurs after a proper stop has been made. The
constitutional standard for both stops and frisks is the same –
reasonable suspicion.
The authority is unanimous in stating that an individual’s
criminal record alone is not sufficient to support a finding of
reasonable suspicion whether it regards a stop or a frisk. See
United States v. Rice, 483 F.3d 1079, 1085 (10th Cir. 2007) (“a
criminal record, standing alone, is not sufficient to create
reasonable suspicion of anything) (emphasis added); accord,
United States v. Monteiro, 447 F.3d 39, 47 (1st Cir. 2006)
(knowledge of a person’s prior criminal involvement or mere
arrest is insufficient to establish reasonable suspicion);
United States v. Mathurin, 561 F.3d 170, 177 (3d Cir. 2009)
(criminal record alone insufficient to amount to reasonable
suspicion); United States v. Johnson, 427 F.3d 1053, 1057 (7th
22
Cir. 2005) (law enforcement officer’s knowledge of a suspect’s
criminal history is not enough, in and of itself, to support
existence of reasonable suspicion); Burrell v. McIlroy, 464 F.3d
853, 858 n. 3 (9th Cir. 2006) (prior criminal history alone
cannot establish reasonable suspicion); United States v.
Laughrin, 438 F.3d 1245, 1247 (10th Cir. 2006) (law enforcement
officers cannot disturb a person’s liberty solely because of a
criminal record); Outlaw v. State, 17 P.3d 150, 157 (Colo. 2001)
(knowledge of prior criminal record not sufficient to create
reasonable suspicion).
As a result, officers cannot justify an investigatory stop
solely on the basis of an individual’s criminal record. See
United States v. Oates, 560 F.2d 45, 59 (2d Cir. 1977)
(“investigative stops certainly cannot be made ‘merely because
[the detainees] have criminal records or bad reputations’”);
Carter v. State, 692 N.E.2d 464, 467 (Ind. Ct. App. 1997)
(officer’s mere knowledge of defendant and his prior criminal
record was not sufficient to justify the investigatory stop);
Commonwealth v. Morgan, 248 S.W.3d 538, 541 (Ky. 2008) (prior
record of a suspect, standing alone, will never justify a Terry
stop); State v. Collins, 479 A.2d 344, 346 (Me. 1984)
(investigative stop cannot be made merely because person has a
criminal record). Likewise, an individual’s criminal record,
alone, is not sufficient to establish reasonable suspicion for a
23
frisk. See United States v. Miranda, 393 Fed. Appx. 243, 245-46
(5th Cir. 2010) (prior criminal conduct, standing alone, cannot
create a reasonable suspicion to support a search or seizure);
United States v. Hairston, 439 F. Supp. 515, 518 (N.D. Ill.
1977) (prior conviction cannot justify search and seizure in
absence of other circumstances); State v. Giltner, 537 P.2d 14,
17 (Haw. 1975) (“The reputation of an individual for carrying
arms is not, in and of itself, a sufficient basis for a stop and
frisk.”); State v. Valentine, 636 A.2d 505, 550 (N.J. 1994)
(permitting the use of suspect’s prior criminal history alone to
justify a Terry frisk may lead to unwarranted intrusions on a
suspect’s constitutional protections). As stated by the Supreme
Court of Maryland, “[T]o allow the reasonable articulable
suspicion standard to be satisfied based upon a person’s
[criminal] status, rather than an individualized assessment of
the circumstances, would undermine the purpose [of] requiring
officers to justify their reasons for searching a particular
individual.” State v. Nieves, 861 A.2d 62, 77 (Md. 2004).
There is no authority to support the majority’s proposition
that a prior criminal record involving arrests for weapons and
intent to distribute narcotics is sufficient to provide
reasonable suspicion to support a frisk, without any additional
indicators that the individual is armed and presently dangerous.
While a person’s criminal record is among the proper factors to
24
be considered in determining if reasonable suspicion exists, no
other jurisdiction has found that a person’s criminal record,
standing alone, creates a reasonable suspicion to support a
search or seizure. In fact, every other jurisdiction in the
United States that has considered the issue has decided the
opposite. Each has required some additional evidence of a
suspect’s appearance or behavior or circumstances regarding the
encounter, in addition to the defendant’s criminal record, to
support the existence of a reasonable suspicion.
In Valentine, for example, the Supreme Court of New Jersey
affirmed a Terry frisk based on a review of the totality of the
circumstances. After approaching a suspect believed to be
engaged in criminal activity, the officer initially became
alarmed because the defendant had his hands in his pockets. 636
A.2d at 512. The officer developed further suspicion when the
defendant offered weak excuses in response to the officer’s
questions, refused to make eye contact, and repeatedly looked
around the area. Id. This encounter occurred after midnight on
a dark street known to the officer as a high-crime area. In
addition, the officer recognized the defendant as someone who
had a long history of criminal activity, including armed
robberies and weapons offenses. Id. at 512-13. Thus, as has
heretofore all other jurisdictions, the Supreme Court of New
Jersey required evidence of other contemporaneous observations
25
or circumstances, in addition to knowledge of the suspect’s
criminal history, to justify a Terry frisk. Id.; see also,
e.g., United States v. Stachowiak, 521 F.3d 852, 856-57 (8th
Cir. 2008) (officer’s knowledge that defendant was likely to be
armed, coupled with the observation of defendant’s furtive
gesture and refusal to cooperate, provided reasonable suspicion
to believe officer in danger); Rice, 483 F.3d at 1084 (facts
justifying frisk include defendant’s presence in high crime area
at 2:30 a.m., officer’s observation of car slowing
intermittently in a manner consistent with preparing for a
burglary or drive-by shooting, officer’s observation that car
did not have a tag light, and computer check identifying
defendant as known to be armed and dangerous); Collins, 479
A.2d at 346 (frisk justified by officer’s belief that defendant
may have been armed on a prior occasion and the defendant’s
belligerent behavior on this occasion).
As recently as last month, the United States Court of
Appeals for the Fourth Circuit reiterated the heretofore
established jurisprudence concerning the issue. “A prior
criminal record is not, standing alone, sufficient to create
reasonable suspicion. [The investigating officer] was required
to pair his prior knowledge of [defendant’s] criminal record
with some more ‘concrete factors’ to demonstrate that there was
a reasonable suspicion of current criminal activity.” United
26
States v. Foster, 634 F.3d 243, 245-46 (4th Cir. 2011) (internal
citations and quotation marks omitted).
In its opinion, the majority does not pair the officers’
knowledge of Smith’s prior criminal involvement with more
concrete factors that would be necessary to create a reasonable
suspicion that Smith was presently engaged in criminal conduct
or was armed and presently dangerous at the time of the frisk.
Instead, the majority holds that knowledge of Smith’s past
criminal record was sufficient, by itself, to create a
reasonable suspicion that Smith was armed and presently
dangerous. The majority opinion contravenes all previous
precedent on the issue.
In this case, the officers knew there was no outstanding
warrant for Smith’s arrest at the time he was searched. In
addition, they neither observed nor discerned any present
circumstances to support any suspicion that Smith was engaged in
criminal activity or that he was armed and dangerous. There is
no evidence in the record indicating that the officers observed
Smith or the driver engage in any furtive behavior tending to
indicate the presence of a weapon or some sort of contraband or
other criminal activity. There is no indication that the
officers saw any signs of weapons, drugs or other contraband on
the person of the car’s occupants or in the vehicle. In fact,
the record is completely devoid of any evidence that the
27
characteristics of the area surrounding the stop, the time of
the stop, the conduct, behavior or appearance of Smith, or the
character of the offense they were investigating (defective
brake light and/or trespass) in any way support the conclusion
that Smith was engaged in criminal conduct or armed and
presently dangerous. It is undisputed that the officer frisked
Smith based solely upon the PISTOL alert.
Whether the Fourth Amendment has been violated is a
question to be determined from all the circumstances. Samson v.
California, 547 U.S. 843, 848 (2006). Review of the existence
of probable cause or reasonable suspicion involves application
of an objective, rather than a subjective, standard. Terry, 392
U.S. at 21-22; Bass v. Commonwealth, 259 Va. 470, 475, 525
S.E.2d 921, 923 (2000). In its analysis of the reasonable
suspicion issue, the majority properly imputes knowledge of
Smith’s criminal history to the officers. However, in
evaluating the totality of the circumstances, the majority does
not consider information known to the officers in addition to
that provided by the PISTOL alert. Having been informed that
there was no outstanding arrest warrant for Smith, the officers
knew that after reviewing Smith’s criminal record and being
aware of the previous charges, a judicial officer had found
either that the charges were not valid, or that despite the
charges, Smith need not be incarcerated because he was not a
28
danger to the public. See Code § 19.2-120. They also knew
Smith was stopped only because he was a passenger in a car with
a defective brake light and that they had not observed anything
to lead them to believe he was presently involved in criminal
activity or that he was armed and presently dangerous. The
officers’ knowledge of Smith’s prior felony conviction and the
two arrests in the eleven months before the encounter with the
police are not, without some contemporaneous observation
indicating criminal activity or present dangerousness,
objectively sufficient to support a reasonable suspicion that
Smith was presently involved in criminal activity or that he was
armed and presently dangerous and thus subject to being frisked
in compliance with the Fourth Amendment.
In apparent contravention of previous precedent, the
majority holds that certain people, because of their criminal
record, are subject to a pat down search if stopped for a minor
traffic violation, regardless of whether the police have any
contemporaneous objective indicia of their current involvement
with criminal activity or of their being armed and presently
dangerous. Inherent in the majority opinion’s ruling is the
conclusion that individuals, who have been determined by a
judicial officer to be sufficiently safe to release from
custody, may be presumed by law enforcement officers to be armed
and dangerous. Such a presumption is the type of “hunch” the
29
Supreme Court of the United States has admonished should not be
allowed in determining the constitutional propriety of a search.
See Terry, 392 U.S. at 27.
Reliance on the PISTOL database is a useful tool that can
improve officer safety. However, its use must comply with the
requirements of the Fourth Amendment. When the officers’
investigation indicated that Smith had been lawfully released
from custody, despite the fact that he was a felon who had been
arrested twice in eleven months, the officers did not have the
right to search him without observing something about his person
or behavior or having some additional information that would
lead them to believe he was engaged in criminal activity or
armed and presently dangerous at the time of the frisk. The
decision of the majority results in the ironic situation in
which individuals deemed by the legal system to be safe enough
to be released into society can be regarded by police officers
as inherently dangerous to the point that they can be frisked
solely based upon an officer’s knowledge that they have been
charged and lawfully released.
For these reasons, and the reasons stated by the Court of
Appeals in its decision, I respectfully dissent. I would affirm
the judgment of the Court of Appeals.
30