COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia
ROBERT LOWE, S/K/A
ROBERT S. LOWE
OPINION BY
v. Record No. 2301-99-2 JUDGE ROBERT P. FRANK
NOVEMBER 7, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge
J. Kelly Haley for appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Robert S. Lowe (appellant) was convicted in a bench trial
of possession of marijuana in violation of Code § 18.2-250.1.
On appeal, he contends the trial court erred in failing to grant
his motion to suppress based on his contention that the pat-down
search was initiated without reasonable suspicion that he was
armed and dangerous. For the reasons that follow, we affirm the
conviction.
I. BACKGROUND
Henrico Police Officer Boteler stopped a car driven by
appellant at approximately 1:00 p.m. on November 8, 1998,
because the car had a rejection sticker displayed on its
windshield. Three passengers were in the car. When the officer
asked appellant for his driver's license, appellant responded he
did not have it in his possession. A license check revealed
that the license plates on the car did not match the vehicle.
In order to investigate, and because she smelled an odor of
alcohol on appellant, Boteler asked appellant to get out of the
car, which he did. She gave him a field sobriety test, which he
passed. She then issued him a summons for not having his
operator's license in his possession and for an improper
registration. At that point, appellant was then free to go.
Boteler then asked appellant if he would consent to a
search of his car, and he did so. The three passengers got out
and stood some distance away with another officer who arrived as
backup while Boteler searched the car.
Inside a down jacket in the back seat, Boteler found a
plastic bag containing a "large amount" of marijuana. 1 She told
the four occupants of the car what she found. When she did so,
one of the passengers, Ferrin, told her the marijuana was his
and none of the others knew anything about it. At that point,
appellant "became very agitated with Mr. Ferrin and wanted to
know what he had, what was he doing with it." It was clear he
was angry with Ferrin, and their voices were raised to the point
where they "weren't quite yelling at each other." Boteler was
putting handcuffs on Ferrin in order to arrest him for
1
The record does not reveal the amount.
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possession of the marijuana. She was standing between appellant
and Ferrin. The officers detained appellant and the other
occupants in order to investigate what Boteler had found in the
car.
The officers had a total of three sets of handcuffs between
them, so they handcuffed appellant and one other subject, in
addition to Ferrin, whom they had arrested. Boteler told
appellant he was not under arrest and that she was investigating
what she had found in the car. Appellant did not make any
threatening movements toward Boteler, and she did not observe
any suspicious bulges on his person. Nevertheless, there were
four subjects, only three of whom were handcuffed, and only two
officers. Appellant had been drinking, and he and Ferrin were
quite agitated with each other. Boteler was standing between
the two. In her words, "I wasn't sure what I had." She told
appellant she would be patting him down for her safety.
Appellant was wearing a long shirt that hung below his waist.
Near appellant's belt buckle, Boteler felt a hard bulge.
When she retrieved it, it proved to be a pipe containing
marijuana. Appellant was arrested for possession of marijuana.
Appellant moved to suppress the marijuana seized as a
result of the pat-down. The trial court denied the motion,
finding that the officer properly patted down appellant for her
safety. Appellant was convicted of possession of marijuana.
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II. ANALYSIS
At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant's Fourth Amendment
rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380
S.E.2d 656, 659 (1989) (citations omitted). On appeal, we view
the evidence in the light most favorable to the prevailing
party, granting to it all reasonable inferences fairly deducible
therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991) (citation omitted). "[W]e are
bound by the trial court's findings of historical fact unless
'plainly wrong' or without evidence to support them and we give
due weight to the inferences drawn from those facts by resident
judges and local law enforcement officers." McGee v.
Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). However, we review de novo the
trial court's application of defined legal standards such as
probable cause and reasonable suspicion to the particular facts
of the case. See Shears v. Commonwealth, 23 Va. App. 394, 398,
477 S.E.2d 309, 311 (1996) (citation omitted). "[O]n appeal,
appellant carries the burden to show . . . that the denial of a
motion to suppress constitute[d] reversible error." Motley v.
Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233
(1993).
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An officer may conduct a pat-down search for weapons if the
officer can point to specific and articulable facts which
reasonably lead him to believe criminal activity may be afoot
and the person subjected to the search may be armed and
dangerous. See James v. Commonwealth, 22 Va. App. 740, 745, 473
S.E.2d 90, 92 (1996) (citations omitted). The authority to
conduct a pat-down search does not follow automatically from the
authority to effectuate an investigative stop. See Williams v.
Commonwealth, 4 Va. App. 53, 66, 354 S.E.2d 79, 86 (1987)
(citations omitted). "Only where the officer can 'point to
particular facts from which [the officer] reasonably inferred
that the individual was armed and dangerous' is he justified in
searching for weapons." Id. at 66-67, 354 S.E.2d at 86
(citation omitted). "In deciding whether to make a stop or
effect a pat-down search, an officer is 'entitled to rely upon
"the totality of the circumstances--the whole picture."'"
Peguese v. Commonwealth, 19 Va. App. 349, 351, 451 S.E.2d 412,
413 (1994) (en banc) (citation omitted).
The totality of the circumstances
includes "the character of the offense."
Williams v. Commonwealth, 4 Va. App. 53, 67,
354 S.E.2d 79, 87 (1987)). In Williams,
this Court held that "suspicion of narcotics
possession and distribution . . . gives rise
to an inference of dangerousness." Id.
(emphasis added). The officers in Williams
had no information that Williams was violent
or armed. The protective pat-down search
was upheld because it was reasonable "in
light of the fact that [the officers] had a
reasonable suspicion that Williams was
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presently engaged in narcotics
distribution." Id.
Id. at 351-52, 451 S.E.2d at 413.
The "generalized risk to officer safety," which permits
officers "to order occupants to exit a lawfully stopped
vehicle," is insufficient "to justify a routine 'pat-down' of
all passengers as a matter of course." United States v. Sakyi,
160 F.3d 164, 168-69 (4th Cir. 1998).
Although Sakyi involved drug paraphernalia, the Fourth
Circuit held that a reasonable, articulable suspicion of the
presence of drugs gave rise to a concern for the presence of
guns, which, "in the absence of factors allaying [the officer's]
safety concerns," permitted the officer to "pat them down
briefly for weapons to ensure the officer's safety and the
safety of others." Id. at 169. In so holding, the Fourth
Circuit observed that when 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. See id. The occupants
are in the restricted space of the vehicle, presumably by choice
and presumably on a common mission. See id.
In the instant case, viewing the evidence in the light most
favorable to the Commonwealth, we have a case where a large
amount of marijuana had been found in the coat pocket. Unlike
Sakyi, where the officer only believed drugs were in the car,
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Boteler actually found drugs. Four suspects were being detained
by only two officers. Even when the second officer arrived, the
officers still were outnumbered. See Lansdown v. Commonwealth,
226 Va. 204, 213, 308 S.E.2d 106, 112 (1983) (noting that, if
officer had reasonable grounds to fear for his safety, mere
increase in the number of officers at the scene is insufficient
as matter of law to dispel that fear).
Based on the totality of the circumstances, we find that
Officer Boteler had reason to fear for her safety when she
frisked appellant. Appellant's bulky shirt prevented her from
detecting any hidden weapons. Appellant had no operator's
license, and the license plates were registered to a different
vehicle. A large quantity of drugs had been found in the car.
She was standing between appellant and Ferrin while the two were
angry and agitated with each other. She and another officer
were outnumbered by the four suspects. With only three pairs of
handcuffs, one suspect had not been restrained. Because Ferrin
was under arrest and the investigation was not yet complete,
Boteler necessarily had to devote her attention to matters other
than appellant's potentially explosive conduct. Any violence he
might direct against Ferrin could injure Boteler because she was
required to protect Ferrin and because she was standing between
the two men. These circumstances justified the pat-down of
appellant.
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Appellant cites Sakyi and argues that the presence of drugs
in a car can justify a pat-down of all its occupants only when
"suspicion is not readily attributed to any particular person in
the vehicle." See Sakyi, 160 F.3d at 169. Because Ferrin
claimed sole possession of the drugs found in the back seat,
appellant argues Boteler had to accept Ferrin's statement at
face value and had no basis for patting down appellant. Under
the Sakyi analysis, appellant argues that Ferrin's admission of
ownership allayed the officer's safety concerns.
Appellant incorrectly presupposes that the police officer
is bound by Ferrin's admission. To the contrary, the officer
was not obligated to accept Ferrin's statement of ownership.
For the officer to have done so and dispensed with further
investigation would have been a dereliction of duty.
In Logan v. Commonwealth, 29 Va. App. 353, 512 S.E.2d 160
(1999), the police were confronted with a similar situation. As
one of the officers approached the vehicle in which Logan was a
passenger, he saw a firearm in plain view in the middle of the
dashboard. See Logan, 29 Va. App. at 356, 512 S.E.2d at 161.
Although the driver claimed ownership of the weapon, it was in
plain view from outside the vehicle, and under the principles
set forth in Sakyi, a reasonable officer was free to conclude
that the weapon could have belonged to any of the vehicle's
occupants. See id. at 361-62, 512 S.E.2d at 164. Similarly,
despite Ferrin's admission, Boteler was free to conclude that
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appellant and the passengers were involved with the large
quantity of marijuana.
Under the standards set forth in Sakyi, we hold that the
totality of the circumstances provided the officers with the
reasonable suspicion necessary to frisk appellant for weapons.
Therefore, the trial court did not err in denying appellant's
motion to suppress and convicting him for possession of
marijuana.
For these reasons, we affirm the judgment of the trial
court.
Affirmed.
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