McCain v. Com.

PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Carrico, S.J.

TYRONE JUNIOR MCCAIN

v. Record No. 071189 OPINION BY
JUSTICE S. BERNARD GOODWYN
COMMONWEALTH OF VIRGINIA April 18, 2008

FROM THE COURT OF APPEALS OF VIRGINIA

In this case we consider the circumstances under which a

law enforcement officer may, within the confines of the Fourth

Amendment of the United States Constitution (“the Fourth

Amendment”), conduct a “pat-down” search for weapons on a

passenger in a vehicle whose driver was stopped for a traffic

violation.

Tyrone Junior McCain (”McCain”) was charged in the

Danville Circuit Court with possession of cocaine with the

intent to distribute, possession of a firearm while possessing

cocaine with the intent to distribute, possession of a firearm

by a convicted felon, and carrying a concealed weapon. Prior

to trial, McCain filed a motion to suppress, claiming that

evidence was seized from him in violation of his

constitutional rights. The trial court denied the motion to

suppress, and convicted McCain on all charges.

McCain appealed to the Court of Appeals. In an

unpublished opinion, the Court of Appeals affirmed the
convictions. McCain v. Commonwealth, Record No. 0110-06-3

(May 8, 2007). McCain appeals.

In the early morning hours of August 9, 2005, Officer

R.V. Worsham (“Worsham”), of the City of Danville Police

Department, observed a vehicle (“the vehicle”) parked in front

of a house on Sublett’s Alley in the City of Danville. The

two occupants of the vehicle walked up to the house in front

of which the vehicle was parked and, in less than a minute,

returned to the vehicle. Worsham was familiar with the house

because he was involved in a transaction “months” earlier in

which an informant made a controlled purchase of cocaine

there.

When the vehicle left, Worsham followed in his police

vehicle. Worsham observed that the vehicle’s rear license

plate had a plastic border that covered the expiration date of

the license plate. He intended to stop the vehicle for that

reason, but “before [he] could get to it to stop it for that,

it was [improperly] backing out into North Main Street.”

Worsham initiated a traffic stop. Worsham stopped the vehicle

within sight of the house where Worsham had first seen the

vehicle.

Worsham approached the vehicle and asked the driver,

Kelly Hartman (“Hartman”), for her license. McCain was the

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front seat passenger. McCain, whom Worsham already knew,

identified himself truthfully. Worsham obtained Hartman’s

information and went back to his car to check her driver’s

license and to call for “back-up” assistance.

Hartman’s driver’s license was reported suspended.

Worsham went back to the vehicle and asked McCain if he had a

license, so that he could drive the vehicle without it being

towed. McCain told Worsham that his license also was

suspended. Because both drivers’ licenses were suspended,

Worsham needed to conduct an inventory of the vehicle’s

contents and have it towed. When Officer E.K. Thompson

(“Thompson”) arrived on the scene, Worsham explained to him

what had occurred and asked Thompson to watch the passenger

side of the vehicle while Worsham got the driver out. Worsham

asked the driver to exit the vehicle. She did so and

consented to a search of her person and the vehicle.

Thompson went to the passenger side of the car and asked

McCain to exit the car. Thompson asked McCain if he could

perform a “frisk” or “pat-down” search on McCain. Up to that

point, McCain had complied with every request made by the

officers. McCain declined to give Thompson permission for the

search. However, Thompson ordered McCain to place his hands

on the vehicle and performed a pat-down search on him.

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 Thompson testified that McCain seemed nervous as Thompson

began to pat him down and that Worsham had told him that he

thought McCain was “edgy.” When McCain removed his hands from

the car, Thompson grabbed McCain by the arm and put him back

on the car and said, “Look, don’t be coming off the car like

that cause I take that as a sign of aggression towards me.”

Thompson continued the pat-down and found keys in McCain’s

pocket. Later during the pat-down search, Thompson asked

McCain if he had any weapons on his person, and McCain said

that he had a gun, at which time Thompson removed a gun from

McCain’s waistband and placed him under arrest. During a

search incident to the arrest, Worsham discovered cocaine in

McCain’s pocket.

The neighborhood where the traffic stop occurred had been

patrolled by Worsham for almost five years and was “known for

the drugs, known for shots fired, being called [in] all the

time [,] . . . probably at least once a night shift.” In

fact, Thompson, who also regularly patrolled the area,

testified that, “for officer safety,” he conducts a pat-down

search of every person he interacts with in that neighborhood,

whether they want him to or not. Thompson testified, “If I’m

getting out for a reason to talk to somebody I would

definitely pat them down for my safety.” The trial court

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found that McCain was seized for purposes of the pat-down

search, but that his detention for that purpose was

constitutional.

DISCUSSION

McCain claims that he was subjected to an unlawful

seizure and search and that all evidence obtained as a result

thereof should have been suppressed. The Commonwealth

contends that, under the circumstances, the police officer’s

seizure and search of McCain was constitutional.

A defendant’s claim that evidence was seized in violation

of the Fourth Amendment presents a mixed question of law and

fact that we review de novo on appeal. Murphy v.

Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002);

see Bolden v. Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701,

704 (2002); McCain v. Commonwealth, 261 Va. 483, 489, 545

S.E.2d 541, 545 (2001); see also Ornelas v. United States, 517

U.S. 690, 691, 699 (1996). In making such a determination, we

give deference to the factual findings of the circuit court,

but we independently determine whether the manner in which the

evidence was obtained meets the requirements of the Fourth

Amendment. Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain,

261 Va. at 490, 545 S.E.2d at 545; Bass v. Commonwealth, 259

Va. 470, 475, 525 S.E.2d 921, 924 (2000). The defendant has

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the burden to show that, considering the evidence in the light

most favorable to the Commonwealth, the trial court’s denial

of his suppression motion was reversible error. Bolden, 263

Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545

S.E.2d at 545; Fore v. Commonwealth, 220 Va. 1007, 1010, 265

S.E.2d 729, 731 (1980).

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); see Ohio v.

Robinette, 519 U.S. 33, 39 (1996). Review of the existence of

probable cause or reasonable suspicion involves application of

an objective rather than a subjective standard. Terry v.

Ohio, 392 U.S. 1, 21-22 (1968); Bass, 259 Va. at 475, 525

S.E.2d at 923-24; Ewell v. Commonwealth, 254 Va. 214, 217, 491

S.E.2d 721, 722 (1997); Zimmerman v. Commonwealth, 234 Va.

609, 611-12, 363 S.E.2d 708, 709 (1988); Leeth v.

Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982).

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 22. A stop is permissible so long

as the officer has reasonable, articulable suspicion that

criminal activity may be afoot. United States v. Sokolow, 490

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U.S. 1, 7 (1989). To establish reasonable suspicion, an

officer must be able to articulate more than an

unparticularized suspicion or “hunch” that criminal activity

is afoot. Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000).

The character of the location and the time at which a person

is observed are relevant factors, but they do not supply a

particularized and objective basis for suspecting criminal

activity on the part of the particular person stopped. See

Brown v. Texas, 443 U.S. 47, 51-52 (1979); Wardlow, 528 U.S.

at 124.

Worsham observed McCain go to a house on Sublett’s Alley

and return to a parked car in less than a minute. Worsham did

not observe any suspected drug activity or transaction when

McCain went to the house, but he was aware of a controlled

purchase of drugs at the house “months” before McCain

approached the house, which is in a “high drug” area.

McCain’s brief presence at a house the officer associated

with drug activity months prior does not support a reasonable

inference of criminal activity. The record does not contain

any evidence concerning the purpose of McCain’s visit or any

suspicious behavior during the visit. A person’s Fourth

Amendment rights are not lessened simply because he or she

happens to live or travel in a “high crime” area. Despite the

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neighborhood, the activity Worsham observed on Sublett’s Alley

was not sufficient to stop McCain because of a reasonable

suspicion of criminal activity. However, Worsham did have a

legitimate basis for stopping the vehicle McCain was traveling

in.

An officer may effect a traffic stop when he has

reasonable suspicion to believe a traffic or equipment

violation has occurred. Bass, 259 Va. at 475, 525 S.E.2d at

923-24. Here, Worsham had probable cause to stop the vehicle

in which McCain was riding when Worsham observed both an

equipment violation and a traffic infraction. Thus, although

there was no reasonable suspicion of criminal activity on the

part of McCain, stopping the vehicle in which McCain was

traveling was constitutionally permissible because of the

traffic and equipment violations that Worsham observed.

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). “[P]olice officers may also

detain passengers beside an automobile until the completion of

a lawful traffic stop.” Harris v. Commonwealth, 27 Va. App.

554, 562, 500 S.E.2d 257, 261 (1998) (citing Hatcher v.

Commonwealth, 14 Va. App. 487, 491-92, 419 S.E.2d 256, 259

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(1992)). An officer’s authority to order an occupant from a

vehicle during a traffic stop is justified by the potential

risks associated with traffic investigation that implicate

safety concerns. Wilson, 519 U.S. at 413-14; see Pennsylvania

v. Mimms, 434 U.S. 106, 110-11 (1977). There was nothing

constitutionally improper about Thompson asking McCain to exit

the vehicle, nor was it improper to detain McCain during the

traffic stop. The resolution of McCain’s motion to suppress

hinges upon the constitutional propriety of subjecting McCain

to a seizure and pat-down search after he exited the vehicle.

“Because a frisk or ‘pat-down’ is substantially more

intrusive than an order to exit a vehicle, . . . an officer

must have justification for a frisk or a ‘pat-down’ beyond the

mere justification for the traffic stop.” United States v.

Sakyi, 160 F.3d 164, 169 (4th Cir. 1998). An officer may not

automatically search a driver or his passengers pursuant to

the issuance of a traffic citation or in the course of a Terry

stop, but he may frisk the driver and passengers for weapons

if he develops reasonable suspicion during the traffic or

Terry 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).

“Even in high crime areas, where the possibility that any

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given individual is armed is significant, Terry requires

reasonable, individualized suspicion before a frisk for

weapons can be conducted.” Maryland v. Buie, 494 U.S. 325,

334 n.2 (1990).

Circumstances relevant in this analysis 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

perspective of a police officer trained and experienced in the

detection of crime. See Terry, 392 U.S. at 28; Whitfield v.

Commonwealth, 265 Va. 358, 362, 576 S.E.2d 463, 465 (2003).

Nervousness during the course of a traffic stop, standing

alone, is insufficient to justify a frisk for weapons, but

“nervous, evasive behavior is a pertinent factor” for

consideration in assessing the totality of the circumstances.

Wardlow, 528 U.S. at 124 (citing United States v. Brignoni-

Ponce, 422 U.S. 873, 885 (1975); Florida v. Rodriguez, 469

U.S. 1, 6 (1984); United States v. Sokolow, 490 U.S. at 8-9)).

Here, the circumstances establish that McCain was a

passenger in a vehicle stopped for a relatively minor traffic

infraction. Worsham and Thompson detained McCain solely

because of the actions of the driver. Neither officer

articulated a reasonable suspicion of criminal activity

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implicating McCain, and viewing the circumstances objectively,

none existed. Also, McCain’s actions gave the officers no

legitimate reasonable suspicion that he was armed and

dangerous. Although the character of the location and the

time are relevant factors, they did not provide either officer

a particularized and objective basis for suspecting McCain was

armed and dangerous.

Worsham may have had a hunch that McCain was involved

with drugs because of the neighborhood and the house McCain

visited; however, such a hunch does not rise to the level of

reasonable suspicion. The officers’ interaction with McCain

during the traffic stop in no way supported this hunch,

because the officers did not observe or notice any drugs, odor

of drugs, or drug paraphernalia in the vehicle. Further, the

officers did not notice any physical or mental impairment that

would indicate drug use by McCain, and there were no physical

or other characteristics observed by the officers that

indicated McCain might be armed and dangerous. Although he

may have appeared to be nervous, McCain identified himself

when requested, did not make any furtive movements, and

cooperated with the police officers until Thompson asked

permission to do a pat-down search.

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 The Supreme Court’s decision in Terry does not permit a

generalized policy that authorizes a police officer to frisk

all persons. The totality of the circumstances, namely, the

time of day, the location in a “high crime” area, and the fact

that Worsham had months earlier conducted a controlled cocaine

purchase from the house McCain visited on Sublett’s Alley, did

not create reasonable suspicion sufficient to justify

detaining and frisking McCain. No additional circumstances

developed during the course of the traffic stop that would

support a reasonable suspicion that McCain was involved in

criminal activity or was armed and dangerous. Therefore, we

hold that McCain was seized and frisked in violation of his

rights under the Fourth Amendment, and his motion to suppress

should have been granted.

Because the evidence seized from McCain should have been

suppressed, there would be insufficient evidence to sustain

convictions for possession of cocaine with intent to

distribute and the related firearms and weapons offenses.

Accordingly, we will reverse the judgment of the Court of

Appeals, vacate McCain’s convictions, and dismiss the

indictments against him.

Reversed, vacated and dismissed.

SENIOR JUSTICE CARRICO, with whom JUSTICE KOONTZ and JUSTICE
KINSER join, dissenting.

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 I agree with the majority that to justify a “pat-down

search,” the rule is that “the police officer must be able to

point to specific and articulable facts” showing that

“criminal activity may be afoot” and that the suspect “may be

armed and presently dangerous.” Terry v. Ohio, 392 U.S. 1,

21, 30 (1968). I do not agree, however, that in applying the

rule in this case the majority has reached the correct

conclusion. Accordingly, I respectfully dissent.

In my opinion, the police in this case did point to

specific and articulable facts sufficient to satisfy the rule.

An investigating officer “need not be absolutely certain” that

criminal activity may be afoot or that the suspect may be

armed and dangerous. Id. at 27. An assessment of the

reasonableness of a particular search or seizure must “be

judged against an objective standard: would the facts

available to the officer at the moment of the seizure or the

search ‘warrant a man of reasonable caution in the belief’

that the action taken was appropriate.” Id. at 21-22 (quoting

Carroll v. United States, 267 U.S. 132, 162 (1925)).

Here, the confrontation between the police and the

defendant occurred near 3:00 a.m. in a high-crime and high-

drug area of the City of Danville where the police receive

reports of “shots fired . . . at least once a night shift.”

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Officer Worsham had participated months before in a controlled

drug buy in the very house he saw the defendant and Kelly

Hartman enter and then within one minute return to their

vehicle on the night in question.

The fact that Officer Worsham did not specify the number

of months the drug buy preceded the present confrontation does

not, in my view, diminish the probative value of his

testimony. The drug buy obviously made a lasting impression

upon him; it was still fresh in his mind; and it is a relevant

circumstance in an objective assessment of the reasonableness

of his actions. Furthermore, Officer Thompson testified that

when he arrived on the scene Officer Worsham told him before

he patted down the defendant that the house “was known for

selling drugs” (emphasis added), indicating that Officer

Worsham had recent information that the house was a continuing

site of drug activity.

The foregoing are specific and articulable facts that

would, as I see the case, warrant a person of reasonable

caution in the belief that criminal activity, i.e., the

purchase of illicit drugs, may have been afoot on the

defendant’s visit to the house in question. And, because the

suspected criminal activity that may have been afoot was drug

related, the same facts would warrant a person of reasonable

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caution in the belief that the defendant was armed and

dangerous, posing a threat to the safety of the police

officers and others. In Jones v. Commonwealth, 272 Va. 692,

636 S.E.2d 403 (2006), this Court took special note of the

“attendant dangers of violence in the drug trade.” Id. at 701

& n.3, 636 S.E.2d at 407 & n.3 (citing United States v.

Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005) (“it is

reasonable for an officer to believe a person may be armed and

dangerous when the person is suspected of being involved in a

drug transaction”), and 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”)).

Officer safety in the Fourth Amendment context is a

subject of great concern to the courts. Indeed, it was a

pivotal consideration in the approval of a “stop and frisk”

rule in Terry. 392 U.S. at 10. There, the Supreme Court

stated as follows:

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
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 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.

392 U.S. at 23-24.

And the concern for officer safety does not change

because the suspect happens to be, as the defendant was in

this case, a passenger in a motor vehicle. “[T]he same

weighty interest in officer safety is present regardless of

whether the occupant of the stopped car is a driver or

passenger.” Maryland v. Wilson, 519 U.S. 408, 413 (1997).

“[W]hen drugs are suspected in a vehicle and the suspicion is

not readily attributable to any particular person in the

vehicle, it is reasonable to conclude that all occupants of

the vehicle are suspect. They are in the restricted space of

the vehicle presumably by choice and presumably on a common

mission.” United States v. Sakyi, 160 F.3d 164, 169 (4th Cir.

1998). Finally, in Lansdown v. Commonwealth, 226 Va. 204,

308 S.E.2d 106 (1983), involving a passenger in a van occupied

by several persons and driven recklessly by the driver, this

Court stated as follows:

If, as we now hold, Officer Missouri was justified in
believing the van’s occupants might be armed, the possible
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 danger to the officer would have been just as great from an
armed passenger as from an armed driver. The law does not
expect that a police officer must gamble on turning away
from a possible danger and chance taking a bullet in the
back merely because of the status of a vehicle’s occupants.

Id. at 212, 308 S.E.2d at 111.

I would affirm the judgment of the Court of Appeals.

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