COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
CHRISTOPHER HARRELL
OPINION BY
v. Record No. 1794-98-1 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 3, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Benjamin A. Williams, Jr., Judge Designate
David J. Whitted, Assistant Public Defender,
for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Christopher Harrell (“appellant”) appeals the trial court’s
denial of his motion to suppress evidence obtained during an
investigative stop of a vehicle in which he was a passenger,
contending that the evidence was obtained in violation of his
Fourth Amendment rights. We agree and reverse the trial court’s
decision.
I.
FACTUAL BACKGROUND
On April 22, 1997, at approximately 4:30 p.m., Officer Johnny
Guy of the Suffolk Police Department stopped a two-door, 1988 Ford
after he observed the vehicle turn onto Camp Avenue without
activating a turn signal. At the time of the stop, the Ford
contained two occupants; appellant was seated in the front
passenger seat.
Officer Guy approached the driver, engaged him in
conversation and then asked him to step from the vehicle and stand
by Officer Jordan, who had arrived on the scene following the
stop. The driver was able to produce neither an operator’s
license nor any other identification. While speaking with the
driver, Guy noticed that the vehicle’s inspection sticker was
“crumpled up slightly,” as if “it was taken from one vehicle and
put on another one.”
Based on his observations, Guy decided to inspect the vehicle
identification number (“VIN”) located on the back of the
inspection sticker to determine whether it matched the vehicle’s
VIN. The sticker was located at the midpoint of the front
windshield. Thus, Guy could only inspect it by entering the front
seat of the vehicle. Guy asked appellant to step outside the
vehicle to give him free access to the sticker. After appellant
exited the vehicle, Guy asked him for permission to conduct a
pat-down. According to Guy, he did so “strictly for [his] safety”
as he would have to turn his back to the driver and appellant to
examine the sticker. 1 On cross-examination, Guy conceded that, at
no time during the encounter with appellant, did he have reason to
1
Guy specifically testified he wanted to pat appellant down
because:
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believe appellant was armed, noting, “I just wanted to make sure
that he didn’t have [a weapon].”
Appellant refused consent to the pat-down. Guy nonetheless
conducted the pat-down, touching something that felt like a
plastic bag inside one of the front pockets of appellant’s
sweatpants. Guy believed the item to be marijuana but did not
remove it from appellant’s pocket. Guy testified that he felt
nothing “that [he] thought would have been a weapon.” After
completing the pat-down, Guy asked appellant to stand at the rear
of the vehicle next to the driver and Officer Jordan.
Guy entered the vehicle and determined that the sticker did
not belong on the vehicle. As Guy walked past appellant to
retrieve a scraper with which to remove the sticker, appellant
approached Guy and “assured [him] that he didn’t have [any
contraband].” When Guy disclosed his suspicion that appellant was
carrying marijuana, appellant denied the accusation and offered to
show the officer the contents of his pockets, pulling several
items from the front pockets of his sweatpants.
None of the items resembled the object Guy had previously
felt, adding to the officer’s suspicion that appellant was hiding
contraband. On that ground, Guy requested consent to conduct a
second pat-down. Without waiting for a response, Guy again patted
with me getting inside the vehicle, there
being two people there, I would – I perceived
myself to be at a disadvantage, and I wanted
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appellant down and discovered that the item he previously felt was
no longer in appellant’s pocket. Guy continued the pat-down along
the length of appellant’s leg and ultimately felt what appeared to
be the plastic bag he had earlier identified, now located near the
elastic cuff of the pant leg. When Guy asked appellant to turn
around, ostensibly to retrieve the item, appellant began running
away, stating, “Oh, it’s going to be like that. Don’t do this.”
Guy subsequently caught appellant and placed him under arrest.
Upon a search of appellant’s person incident to arrest, police
found two bags containing cocaine in appellant’s pants.
The trial court denied appellant’s motion to suppress the
cocaine found on his person. Appellant subsequently entered a
plea of nolo contendere to a charge of possessing cocaine with the
intent to distribute in violation of Code § 18.2-248, reserving
his right to appeal the admission of the cocaine.
II.
LEGAL PRINCIPLES
In considering the trial court’s denial of a motion to
suppress, the burden is on appellant to show that the court’s
ruling constituted reversible error. See McGee v. Commonwealth,
25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc). In
such cases, we view the evidence in the light most favorable to
the Commonwealth, the party prevailing below. See Greene v.
to ensure that no one else other than myself
and Officer Jordan had any sort of weapons.
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Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994).
Ultimate questions of reasonable suspicion and probable cause
involve questions of both law and fact and are reviewed de novo on
appeal. See McGee, 25 Va. App. at 197, 487 S.E.2d at 261. We are
bound, however, 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.” Id. at 198,
487 S.E.2d at 261.
The Fourth Amendment ensures the right of people to be free
from unreasonable searches and seizures. See Terry v. Ohio, 392
U.S. 1, 9 (1968). “‘Whether a search . . . is unreasonable is
determined by balancing the individual’s right to be free from
arbitrary government intrusions against society’s countervailing
interest in preventing or detecting crime and in protecting its
law enforcement officers.’” Sattler v. Commonwealth, 20 Va. App.
366, 368, 457 S.E.2d 398, 399-400 (1995) (quoting Stanley v.
Commonwealth, 16 Va. App. 873, 875, 433 S.E.2d 512, 513 (1993)).
“Reasonableness is judged from the perspective of a reasonable
officer on the scene allowing for the need of split-second
decisions and without regard to the officer’s intent or
motivation.” Scott v. Commonwealth, 20 Va. App. 725, 727, 460
S.E.2d 610, 612 (1995).
An officer may conduct a pat-down search for weapons if the
officer can point to specific and articulable facts which
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reasonably lead him to conclude that criminal activity may be
afoot and that 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). 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). “Only where the officer can ‘point
to particular facts from which he 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 (quoting Sibron v.
New York, 392 U.S. 40, 64 (1968)). See Ybarra v. Illinois, 444
U.S. 85, 93-94 (1979) (stating that the United States Supreme
Court’s holding in Terry does not authorize “a generalized
‘cursory search for weapons’” and “does not permit a frisk for
weapons on less than reasonable belief or suspicion directed at
the person to be frisked”).
III.
ANALYSIS
Applying the foregoing principles to the evidence before the
trial court, we find that Officer Guy searched appellant in
violation of his Fourth Amendment rights and that the trial court
erred in refusing to suppress the cocaine found as a result of the
search. See Mapp v. Ohio, 367 U.S. 643, 655 (1961); Thomas v.
Commonwealth, 24 Va. App. 49, 54, 480 S.E.2d 135, 137 (1997) (en
banc).
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Suspicion that an individual may be armed and dangerous, the
threshold fact which must exist before a lawful pat-down may be
conducted after a Terry stop, is absent from this record. Indeed,
Guy admitted that he did not have any reason to believe appellant
was armed and dangerous at any point during his investigation.
That Guy believed he was placing himself in a disadvantageous
position when he entered the vehicle to examine the inspection
sticker is insufficient by itself to support the frisk when
nothing in appellant’s conduct suggested he was armed and
dangerous. See Toliver v. Commonwealth, 23 Va. App. 34, 37, 473
S.E.2d 722, 724 (1996); Payne v. Commonwealth, 14 Va. App. 86,
89-90, 414 S.E.2d 869, 870-71 (1992) (finding that an officer’s
non-consensual search for weapons violated the Fourth Amendment
when the officer had not observed the defendant engage in criminal
behavior, the officer had no information the defendant was
involved in criminal activity, the defendant willingly cooperated
with the officer’s instructions during the encounter, and there
was nothing to suggest the defendant possessed a concealed
weapon).
Furthermore, the basis for a frisk, concern for officer
safety, may be predicated on the circumstances attending the stop
where the circumstances give rise to a reasonable concern. See
Williams, 4 Va. App. at 67, 354 S.E.2d at 86-87 (stating that the
circumstances that may give rise to a reasonable inference of
dangerousness include the characteristics of the area where a stop
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occurs, the time at which the stop occurs, and suspicious conduct
on the part of the person stopped). However, no evidence of such
circumstances exists in the record.
This present case is distinguishable on its facts from Moore
v. Commonwealth, 25 Va. App. 277, 487 S.E.2d 864 (1997). In
Moore, we upheld the constitutionality of a pat-down based on the
circumstances of the stop and those confronting the officer. In
that case, we found the pat-down to be a “minimal intrusion” which
was necessary “to insure the [officer’s] safety” as he performed
his duties. See Moore, 25 Va. App. at 286-87, 487 S.E.2d at 869.
In Moore, the officer was alone on an interstate highway bridge
with three individuals whose vehicle he had stopped. See id. at
281, 487 S.E.2d at 866. Upon arresting the vehicle’s driver, the
officer was required to inventory the vehicle, a procedure which
required his full attention, making it problematic for the officer
to fully monitor the detained individuals. The officer was also
required to transport all three individuals from the bridge in his
cruiser. See id. at 286, 487 S.E.2d at 868. Because the cruiser
did not have a barrier between the front and rear seats, the
officer was left without protection from potential harm during the
transport. See id.
In the present case, Guy had back-up assistance to support
and protect him as he focused his attention on examining the
vehicle’s inspection sticker. The other officer was not only
present at the scene, he remained positioned next to appellant and
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the driver at the back of the vehicle as Guy entered the vehicle
to perform his duties. In light of the brevity and nature of the
encounter, the presence of another officer at the scene, and the
absence of conduct giving rise to a reasonable suspicion that
appellant was armed and dangerous, we find nothing risk-laden in
the circumstances attending the encounter between the police and
appellant.
For these reasons, we find that Guy’s search of appellant
violated his Fourth Amendment rights and that the trial court’s
denial of appellant’s motion to suppress was reversible error. We
accordingly reverse the conviction and remand this case for
further proceedings, if the Commonwealth should be so advised.
Reversed and remanded.
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