Welshman v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman,
Willis, Elder, Bray, Annunziata, Overton and Bumgardner
Argued at Richmond, Virginia

GORDON WAYNE WELSHMAN, S/K/A
GORDON WAYNE WELSHMAN, JR.
OPINION BY
v. Record No. 0818-96-3 JUDGE JOSEPH E. BAKER
JULY 21, 1998
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge

Clinton R. Shaw, Jr. (Office of the Public
Defender, on brief), for appellant.

Eugene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

Gordon Wayne Welshman (appellant) was convicted in a bench

trial in the Circuit Court for the City of Lynchburg (trial

court) for possession of cocaine with intent to distribute. On

appeal, he contended the trial court erroneously denied his

motion to suppress the cocaine and held the evidence sufficient

to prove he intended to distribute the cocaine. A divided panel

of this Court reversed and dismissed the conviction, holding the

cocaine upon which his conviction was based was discovered as the

result of an unreasonable seizure of his person, in violation of

the Fourth Amendment. See Welshman v. Commonwealth, 25 Va. App.

599, 491 S.E.2d 294 (1997). Upon rehearing en banc, we hold the

trial court properly denied appellant's motion to suppress and
the evidence is sufficient to prove appellant intended to

distribute the cocaine. Accordingly, we affirm his conviction.

During June 1995, Investigator Thomas of the Lynchburg

Police Department conducted ongoing surveillance in the 2100

block of Main Street, which was known as an open-air drug market.

Between January 1994 and August 11, 1995, the police "had [703]

calls in the [2100] block of Main Street," 136 of which were for

drug offenses. Sixty-eight of the drug offense calls directly

involved the residence at 2110 Main Street, which was a reputed

crack house. Police also received seventeen "shots fired" calls

for that block during the same period.
On June 29, 1995, Investigator Thomas used binoculars to

observe two individuals engaging in hand-to-hand transactions

with drivers and pedestrians in the 2100 block of Main Street.

He saw those two individuals carry white chunks of what appeared

to be crack cocaine in their hands and exchange the chunks for

cash. He believed the two were selling cocaine. Appellant,

along with about seven other people, had been standing in front

of the residence at 2110 Main Street for at least fifteen

minutes, but appellant was not visibly involved in any of the

apparent drug transactions.

Investigator Thomas radioed his observations to a team of

four officers, including Officer Duff, who approached the scene

to apprehend the two individuals suspected of selling cocaine.

It was about 8:25 p.m. and "was just barely light outside." When

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Investigator Thomas radioed the team, the two target individuals

were "in the middle of the street . . . making a transaction"

with a "stopped . . . vehicle." However, "when the officers

began approaching in their vehicle[,] both individuals ran back

into [the] little group where [appellant] was." This group was

on the sidewalk area in front of 2110 Main Street, between the

front porch and a van with its doors open parked in front of the

residence. Four or five people, "male and female and some

children," were on the front porch of the residence, and about

three people were inside the van. In addition, "[t]here were

other pedestrians within the block." Investigator Thomas

testified that the officers "always want to outnumber the

individuals we're getting out with, but in some cases we can't do

it." The officers "elected to go in with what they had," but

upon arriving at the scene, Officer Duff called for additional

officers.
"Due to the nature and reputation of the area and [Officer

Duff's] experience with the area, and, also some of the people

that [he] had observed there," he decided to direct everyone on

the sidewalk at the scene to lie "in a prone position

momentarily" for the safety of the officers and the civilians.

Duff also wanted to apprehend the target subjects before they had

a chance to dispose of any cocaine they may have possessed. The

officers intended to secure the two target individuals and the

scene "either by having people leave or making sure that . . .

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the people [who] decided to stay" had no weapons. Duff

previously had seen a pellet gun in the mailbox of the residence,

which was located only three to four feet from where appellant

was standing, and in the possession of one of the occupants of

the residence. He also was aware of several prior "shots fired"

calls involving that residence and knew police previously had

seen an individual firing a weapon in front of that residence.

The 2100 block "was known as a high crime, very volatile area."
As the officers were exiting the car, Officer Duff told

everyone on the sidewalk, including appellant, to get on the

ground and extend their arms out from their bodies. He said he

would have allowed anyone other than the target individuals to

leave the scene, but he did not inform them of this option.

Everyone complied with Officer Duff's directive. While other

officers secured the target subjects, Officer Duff noticed

appellant had not extended his arms as directed and instead had

kept them under his torso. Fearing appellant was reaching for a

weapon, Duff "immediately went to [appellant]" and again told him

to extend his arms. As Duff began to roll appellant over,

appellant complied by extending his arms. Duff saw nothing in

the area where appellant had been lying but was concerned about

the officers' safety and frisked appellant for weapons. When he

patted the exterior of appellant's left front pants pocket, he

detected an object that "felt like several smaller objects that

were hard and it felt like . . . they were wrapped in some type

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of baggy-type wrap." Without manipulating the contents of

appellant's pocket, Duff immediately concluded the objects were

crack cocaine. He then pulled from appellant's pocket a piece of

a brown paper bag containing five or six chunks of crack cocaine

weighing 1.44 grams. Other than appellant and the target

individuals, police did not frisk anyone else at the scene.

In a search of appellant incident to arrest, the officers

found $150 in cash, comprised of five $20 bills and one $50 bill.

They found no devices for ingesting cocaine in appellant's

possession. After Mirandizing appellant, Officer Duff asked him

if he smoked crack cocaine. Appellant said, "Do I look like I

smoke cocaine?" When Duff replied, "No," appellant said, "All

right then." Appellant said he was not holding the cocaine for

anyone else and denied having an intent to sell it.

At trial, Officer Duff qualified as an expert and testified

appellant's possession of 1.44 grams of crack cocaine was

inconsistent with possession for personal use. He testified that

crack cocaine was commonly sold in the Lynchburg area in $20 and

$40 rocks and that one gram of cocaine would cost $150 to $175.

Investigator Thomas testified that, in his experience, people

selling cocaine commonly carry several rocks in pieces of brown

paper or small pieces of cellophane, plastic wrappers or plastic

bags. Purchasers, by contrast, he testified, "usually just get

the rock and leave."

Appellant moved to suppress, contending the seizure of his

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person and the subsequent pat-down search and removal of the

cocaine from his pocket violated the United States and Virginia

Constitutions. The trial court denied the motion to suppress,

finding "the police officers in the case acted properly and had

reasonable probability or reasonable basis to believe that the

area involved was very dangerous; that it was a high crime area."

As a result, he held the officers' "actions were reasonable."

At trial, appellant moved to strike the Commonwealth's

evidence, but the trial court denied the motion and convicted

appellant of possessing cocaine with intent to distribute. The

trial court "[drew] the inference based on [appellant's] answers

[to] what the police officer asked him" that "[appellant] was not

a [cocaine] user."

Motion to Suppress

In reviewing a trial court's denial of a motion to suppress,

"the burden is upon [appellant] to show that this ruling, when

the evidence is considered most favorably to the Commonwealth,

constituted reversible error." Fore v. Commonwealth, 220 Va.

1007, 1010, 265 S.E.2d 729, 731 (1980). Determining whether

police may make a warrantless search or seizure involves issues

of both law and fact and is reviewed de novo on appeal. See

Ornelas v. United States, 517 U.S. 690, 696-97 (1996)

(articulating standard for reviewing determinations of reasonable

suspicion and probable cause). However, "[i]n performing such

analysis, we are bound by the trial court's findings of

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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) (citing Ornelas, 517 U.S. at

699).

Detention

The Commonwealth concedes appellant was seized within the

meaning of the Fourth Amendment when Officer Duff ordered him to

lie face down on the ground and extend his arms. The

Commonwealth also concedes the officers had no reason to believe

appellant had been engaged in criminal activity. The question on

appeal, therefore, is whether the officers' detention of

appellant nevertheless was constitutionally justified. We hold

that it was.
"The [F]ourth [A]mendment does not proscribe all seizures,

only those that are 'unreasonable.' Whether a seizure 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." Bethea v.

Commonwealth, 14 Va. App. 474, 476, 419 S.E.2d 249, 250 (1992)

(en banc), aff'd on other grounds, 245 Va. 416, 429 S.E.2d 211

(1993); see U.S. Const. amend. IV; Va. Const. art. I, § 10. The

validity of a seizure "'turns on an objective assessment of the

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officer's actions in light of the facts and circumstances

confronting him at the time,' and not on the officer's actual

state of mind at the time the challenged action was taken."

Maryland v. Macon, 472 U.S. 463, 470-71 (1985) (quoting Scott v.

United States, 436 U.S. 128, 136 (1978)).

Ordinarily, in the absence of consent, even a brief

detention must be based on at least a reasonable, articulable

suspicion the person seized is engaged in criminal activity.
See, e.g., McGee, 25 Va. App. at 198-99, 487 S.E.2d at 261-62.

However, as the United States Supreme Court has held, the absence

of probable cause or reasonable suspicion of criminal activity

does not necessarily render a detention unlawful. See Maryland

v. Wilson, 117 S. Ct. 882, 886 (1997); Michigan v. Summers, 452

U.S. 692, 705 (1981); see also United States v. Martinez-Fuerte,

428 U.S. 543, 556-62 (1976) (upholding border patrol stops of

vehicles at fixed checkpoint in absence of reasonable suspicion

that vehicle contained illegal aliens).

In Michigan v. Summers, 452 U.S. 692, for example, the Court
held that "a warrant to search for contraband founded on probable

cause implicitly carries with it the limited authority to detain

the occupants of the premises while a proper search is

conducted." Id. at 705 (footnote omitted). Among various

"legitimate law enforcement interest[s]" in detaining the

occupants, it emphasized the
importance . . . [of] minimizing the risk of
harm to the officers. . . . [T]he execution
of a warrant to search for narcotics is the

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 kind of transaction that may give rise to
sudden violence or frantic efforts to conceal
or destroy evidence. The risk of harm to
both the police and the occupants is
minimized if the officers routinely exercise
unquestioned command of the situation.

Id. at 702-03 (footnote omitted). Although the Court stressed

the importance of the existence of the search warrant to justify

the detention in that case, see id. at 701, it also noted its

holding did not "preclude the possibility that comparable police

conduct may be justified by exigent circumstances in the absence

of a warrant." Id. at 702 n.17.

In the more recent case of Wilson, 117 S. Ct. at 886, the

Court extended Pennsylvania v. Mimms, 434 U.S. 106 (1977), to

hold that a police officer making a routine traffic stop may

order a passenger out of the car for safety reasons, even if the

officer has no reason to suspect the passenger of criminal

behavior. See also Bethea, 14 Va. App. 474, 419 S.E.2d 249. The

Court noted the "reasonableness [of an officer's actions]

'depends "on a balance between the public interest and the

individual's right to personal security free from arbitrary

interference by law officers."'" Wilson, 117 S. Ct. at 885

(quoting Mimms, 434 U.S. at 109 (quoting United States v.

Brignoni-Ponce, 422 U.S. 873, 878 (1975))). "On the public

interest side of the balance," the Court identified a "weighty

interest in officer safety," advanced by depriving the occupants

of access to any weapons which might be concealed in the

passenger compartment. See id. at 885-86. It concluded that

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 danger to an officer from a traffic stop is
likely to be greater when there are
passengers in addition to the driver in the
stopped car. While there is not the same
basis for ordering the passengers out of the
car as there is for ordering the driver out,
the additional intrusion on the passenger is
minimal.

Id. at 886.

Under the reasoning of Summers and Wilson, we hold the

officers here were justified in ordering appellant to lie on the

ground briefly, both for his safety and the safety of the

officers and other bystanders. The officers lacked reasonable

suspicion or probable cause to believe appellant was engaged in

criminal activity and did not have an arrest warrant for the two

target individuals. However, they had probable cause to believe

the two target individuals were then engaged in selling cocaine

in plain view directly in front of a reputed crack house, about

which officers had received numerous "shots fired" complaints.

When the four officers first began to approach the scene, the two

target individuals were standing by a car in the middle of the

street. By the time the officers arrived, the two men had

retreated to the sidewalk into the group of about eight people,

of which appellant had been a part for at least fifteen minutes.

Once the target subjects had retreated into the group, that

group outnumbered the police officers by a ratio of two to one.

Other people, including children, were in close proximity.
Although the officers had not seen any weapons on the people

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at the scene, given the number of people in close proximity, the

reputation of the house and block for violence, see Brown v.

Commonwealth, 15 Va. App. 232, 234 n.1, 421 S.E.2d 911, 912 n.1

(1992) (recognizing that "presence in a high crime area" is a

factor which may be considered in determining whether an

investigatory stop is appropriate), and the nature of the crime

for which they sought to apprehend the target subjects, see,

e.g., Logan v. Commonwealth, 19 Va. App. 437, 445, 452 S.E.2d

364, 369 (1994) (en banc) (noting that relationship between
distribution of controlled substances and possession and use of

dangerous weapons "is now well recognized"), the evidence

supports the trial court's conclusion that the officers

reasonably feared for their safety and the safety of the

bystanders and properly ordered those people on the sidewalk with

the target subjects to lie on the ground.

We conclude the trial court did not err in denying the

motion to suppress. Requiring the officers to notify the members

of the group on the sidewalk that they were free to leave before

or while the officers apprehended the target subjects could have

posed an increased risk to the safety of the officers, the

members of the group on the sidewalk, and the other bystanders if

the target subjects had attempted to dispose of evidence, resist

arrest, or flee the scene. Therefore, the officers' order to the

bystanders on the sidewalk to lie on the ground "momentarily"

while the target subjects were taken into custody was not

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unreasonable. See Baker v. Monroe Township, 50 F.3d 1186,

1191-92 (3d Cir. 1995) (in federal civil rights action, holding

that police executing no-knock search warrant for drugs could

detain mother and her three children, who were climbing steps to

target apartment, to protect both the officers and those

detained); Willowby v. City of Philadelphia, 946 F. Supp. 369,

373-74 (E.D. Pa. 1996) (in federal civil rights action, holding

that police executing search warrant for drugs did not violate

constitutional rights of those present on porch of adjacent row

house by ordering them to "get down . . . in the interest of the

bystanders' and officers' safety") (footnote omitted).
Moreover, the officers briefly detained only those people in

immediate proximity to the target subjects and not those on the

nearby porch or in the van. In addition, Officer Duff testified

he intended to allow people to leave the scene immediately after

the target subjects had been secured and he would have frisked

only those who chose to stay at the scene.

Viewing the facts in the light most favorable to the

Commonwealth, we cannot say the brief detention of appellant

violated his rights under the United States or Virginia

Constitutions.
Frisk for Weapons

Appellant also contends Officer Duff violated his Fourth

Amendment rights when Duff frisked him for weapons. Again, we

disagree.

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 Under settled principles, once an officer has lawfully

detained an individual, "he is 'authorized to take such steps as

[are] reasonably necessary to protect [his and others'] personal

safety and to maintain the status quo during the course of the

stop.'" Servis v. Commonwealth, 6 Va. App. 507, 519, 371 S.E.2d

156, 162 (1988) (quoting United States v. Hensley, 469 U.S. 221,

235 (1985)). An officer may preserve the status quo by ordering

the person detained to place his hands where the officer can see

them. See Woodson v. Commonwealth, 14 Va. App. 787, 793-94, 421

S.E.2d 1, 5 (1992), aff'd, 245 Va. 401, 429 S.E.2d 27 (1993);

Bethea, 14 Va. App. at 478, 419 S.E.2d at 252.

Additional information may provide the basis for a frisk of

the person for weapons. An officer "may conduct a limited

pat-down search of the suspect's outer clothing to search for

weapons if the officer reasonably believes, based on specific and

articulable facts, that the suspect might be armed and

dangerous." Phillips v. Commonwealth, 17 Va. App. 27, 30, 434

S.E.2d 918, 920 (1993). The refusal of a person detained to show

his hands may provide just such a basis. See James v.

Commonwealth, 22 Va. App. 740, 745-46, 473 S.E.2d 90, 92 (1996)

(permitting frisk of passenger who appeared jittery and did not

respond to officer's order to keep hands in view). Additional

factors appropriate for consideration may include the reputation

of the neighborhood as a high-crime area. See Brown, 15 Va. App.

at 234 n.1, 421 S.E.2d at 912 n.1.

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 Officer Duff initially detained appellant for safety reasons

and did not have reasonable suspicion of criminal activity by

appellant. However, Officer Duff was lawfully there

investigating criminal activity that Investigator Thomas had

observed. Once appellant had been detained, Duff was entitled to

take reasonable steps to protect the safety of the officers, the

target individuals, and everyone else at or near the scene. In

determining what measures were appropriate, Duff was entitled to

consider the reputation of the immediate area for violence and

drug-related crime. See id. Duff attempted to maintain safety

in a minimally intrusive manner by ordering appellant and the

others on the sidewalk to lie prone and extend their arms from

their bodies so their hands would be in plain view. When

appellant refused Officer Duff's order to extend his hands from

his body, placing them under his torso instead, Duff had specific

and articulable facts giving rise to the reasonable belief

appellant "might be armed and dangerous." See id.; see also
United States v. Moorefield, 111 F.3d 10, 13-14 (3d Cir. 1997)

(upholding pat-down of passenger following his failure to obey

officer's order to place hands in view); Lansdown v.

Commonwealth, 226 Va. 204, 212-13, 308 S.E.2d 106, 111-12 (1983),

cert. denied, 465 U.S. 1104 (1984) (permitting frisk of van's

passenger for weapons where driver was stopped for multiple

traffic infractions including reckless driving and attempting to

elude a police officer and where passenger "individually did

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nothing to indicate he possessed a concealed weapon").

Appellant's subsequent compliance with Duff's order and

Duff's failure to find a weapon on the ground beneath appellant

did not remove the possibility appellant had a weapon on his

person and might again try to access it.

Under these facts, we conclude the frisk for weapons was not

an unreasonable search.

"Plain Feel" Doctrine
When Officer Duff felt the rocks of crack cocaine in

appellant's pocket, the plain feel doctrine of Minnesota v.

Dickerson, 508 U.S. 366 (1993), permitted their seizure. Under

that doctrine,
[i]f a police officer lawfully pats down a
suspect's outer clothing and feels an object
whose contour or mass makes its identity
immediately apparent, there has been no
invasion of the suspect's privacy beyond that
already authorized by the officer's search
for weapons; if the object is contraband, its
warrantless seizure would be justified by the
same practical considerations that inhere in
the plain view context.

Id. at 375-76.

Here, Officer Duff testified he identified the item when he

first felt it and did not have to manipulate it in order to

complete the identification. Therefore, viewed in the light most

favorable to the Commonwealth, the evidence supported the trial

court's denial of appellant's motion to suppress on this issue.

See also Ruffin v. Commonwealth, 13 Va. App. 206, 208-09, 409

S.E.2d 177, 178-79 (1991) (applying plain view doctrine to uphold

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seizure where officer conducting pat-down for weapons found item

he thought to be controlled substance).

Intent to Distribute

Appellant also challenges the sufficiency of the evidence to

prove intent to distribute. In evaluating such a challenge, we

view the record in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987). The credibility of a witness, the weight

accorded the testimony, and the inferences to be drawn from

proven facts are matters to be determined by the fact finder.
See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473,

476 (1989).

Circumstantial evidence may establish the elements of a

crime, provided it excludes every reasonable hypothesis of

innocence. See, e.g., Tucker v. Commonwealth, 18 Va. App. 141,

143, 442 S.E.2d 419, 420 (1994). However, "the Commonwealth need

only exclude reasonable hypotheses of innocence that flow from

the evidence, not those that spring from the imagination of the

defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433

S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is

reasonable is a question of fact, see Cantrell v. Commonwealth, 7

Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and a finding by

the trial court is binding on appeal unless plainly wrong. See
Martin, 4 Va. App. at 443, 358 S.E.2d at 418.

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 "Because direct proof of intent [to distribute drugs] is

often impossible, it must be shown by circumstantial evidence."

Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165

(1988). Such evidence may include the quantity of drugs and cash

possessed and whether appellant used drugs. See Poindexter v.

Commonwealth, 16 Va. App. 730, 734-35, 432 S.E.2d 527, 530

(1993). Possession of a large sum of money, especially in small

denominations, and the absence of any paraphernalia suggestive of

personal use, also are regularly recognized as factors indicating

an intent to distribute. See Colbert v. Commonwealth, 219 Va. 1,

4, 244 S.E.2d 748, 748-49 (1978).

Here, appellant possessed 1.44 grams of crack cocaine rocks

and $150 in cash, comprised of five $20 bills and one $50 bill.

Officer Duff, who was accepted by the court as an expert,

testified the quantity of cocaine found was inconsistent with

personal use and consistent with distribution. He testified

appellant's possession of the $20 bills also was consistent with

distribution of crack cocaine, which usually was sold in $20 and

$40 increments. Finally, police found no evidence of personal

use of cocaine, and appellant denied holding it for someone else.

These facts, combined with appellant's indignant response to

police when they asked if he smoked crack cocaine, permitted the

inference that he possessed the cocaine with the requisite intent

to distribute. The trial court, as the trier of fact, drew just

such an inference, and we cannot say it erred in doing so.

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Officer Duff admitted an addict could consume one gram of cocaine

in a day, and Investigator Thomas admitted appellant could have

purchased the drugs as they were packaged. However, no evidence

in the record showed appellant personally used cocaine, and

appellant's statement to Officer Duff negated such an inference.

Therefore, the trial court was entitled to conclude that the

only reasonable hypothesis flowing from the evidence was that

appellant intended to distribute the cocaine.
For these reasons, we hold the trial court did not err in

denying appellant's motion to suppress and in finding the

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evidence sufficient to prove he intended to distribute the

cocaine. Therefore, we affirm appellant's conviction.

Affirmed.

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Annunziata, J., with whom Benton and Elder, JJ., join,
dissenting.

The majority holds that police officers may seize a person

whom they have no reasonable, articulable basis to suspect of

criminal activity. Because I believe this holding is not

supported by Fourth Amendment law, I respectfully dissent.

Investigator Thomas observed two men conduct drug

transactions, then join a group of eight men, including

appellant, standing on a sidewalk in front of a reputed crack

house. Thomas did not see appellant do anything "except stand

there." At Thomas' direction, Officer Duff moved into the area

to apprehend the men involved in the drug transactions. Duff

wanted to "secure the two target suspects and then make the scene

secure, either by having people leave or making sure that there

were no weapons with the people that decided to stay." As he

approached the scene, Duff ordered the individuals on the

sidewalk, including appellant, to lie on the ground in a prone

position and extend their arms. After appellant assumed a prone

position, but kept his hands under his torso, Duff conducted a

pat-down search and discovered the cocaine used to support

appellant's conviction.
"[P]eople are not shorn of all Fourth Amendment protection

when they step from their homes onto the public sidewalks."

Delaware v. Prouse, 440 U.S. 648, 663 (1979). In holding that no

reasonable suspicion or probable cause was required to seize

appellant, the majority applies the principle that, "[w]hether a

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seizure 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." Bethea v. Commonwealth, 14 Va. App. 474,

476, 419 S.E.2d 249, 250 (1992) (en banc) (citing United States

v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)), aff'd on other

grounds, 245 Va. 416, 429 S.E.2d 211 (1993).
"For all but . . . narrowly defined intrusions, the

requisite 'balancing' has been performed in centuries of

precedent and is embodied in the principle that seizures are

'reasonable' only if supported by probable cause." Dunaway v.

New York, 442 U.S. 200, 214 (1979). The reasonableness of

seizures less intrusive than a traditional arrest, however,
involves a weighing of the gravity of the
public concerns served by the seizure, the
degree to which the seizure advances the
public interest, and the severity of the
interference with individual liberty. A
central concern in balancing these competing
considerations in a variety of settings has
been to assure that an individual's
reasonable expectation of privacy is not
subject to arbitrary invasions solely at the
unfettered discretion of officers in the
field. To this end, the Fourth Amendment
requires that a seizure must be based on
specific, objective facts indicating that
society's legitimate interests require the
seizure of the particular individual, or that
the seizure must be carried out pursuant to a
plan embodying explicit, neutral limitations
on the conduct of individual officers.

Brown v. Texas, 443 U.S. 47, 50-51 (1979) (citations omitted);

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see also Prouse, 440 U.S. at 654 (explaining that the balancing

test requires either individualized suspicion or other safeguards

to limit discretion); Lowe v. Commonwealth, 230 Va. 346, 350, 337

S.E.2d 273, 276 (1985) (citing Brown, 443 U.S. at 50-51)

(explaining Brown standard).

Applying this standard, the Supreme Court of the United

States and Virginia courts have repeatedly held that a

constitutionally valid seizure less intrusive than an arrest

requires either (1) reasonable, articulable suspicion that a

crime is being or has been committed, see, e.g., United States v.
Sokolow, 490 U.S. 1, 7 (1989) (explaining that an investigatory

stop under Terry v. Ohio, 392 U.S. 1 (1968), "requires 'some

minimum level of objective justification'" (quoting INS v.

Delgado, 466 U.S. 210, 217 (1984))); Brown, 433 U.S. at 51

(holding that stop of pedestrian requires reasonable, articulable

suspicion of criminal activity); Prouse, 440 U.S. at 663 (holding

that stop of automobile requires reasonable, articulable

suspicion of criminal activity); Leeth v. Commonwealth, 223 Va.
335, 340, 288 S.E.2d 475, 478 (1982) (citing Brown, 443 U.S. at

51) (holding that stop of automobile requires reasonable,

articulable suspicion of criminal activity); Simmons v.

Commonwealth, 217 Va. 552, 554, 231 S.E.2d 218, 220 (1977)

(citing Terry, 392 U.S. at 27) (holding that stop of pedestrian

must be supported by reasonable, articulable facts of criminal

activity); or (2) an explicit, neutral plan limiting the

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discretion of the officers in the field. See, e.g., Michigan

Dep't of State Police v. Sitz, 496 U.S. 444, 453 (1990)

(approving stop at traffic checkpoint selected pursuant to

guidelines and stopping every vehicle); United States v.

Martinez-Fuerte, 428 U.S. 543, 559 (1976) (approving permanent

immigration checkpoint stops involving limited discretionary

enforcement activity); Simmons v. Commonwealth, 238 Va. 200, 204,

380 S.E.2d 656, 658-59 (1989) (explaining that roadblock stops

"must be undertaken pursuant to an explicit plan or practice

which uses neutral criteria and limits the discretion of the

officers conducting the roadblock"); Lowe, 230 Va. at 352, 337
S.E.2d at 277 (approving roadblock stop employing neutral

criteria and limiting officers' discretion).

Prior to today, the Supreme Court of the United States and

Virginia courts have approved seizures without any objective,

particularized suspicion of wrongdoing in only two contexts.

First, in Michigan v. Summers, 452 U.S. 692, 705 (1981), the

Court held that police could, without objective suspicion, detain

the occupant of a house during a search conducted pursuant to a

valid warrant. See also Allen v. Commonwealth, 3 Va. App. 657,

661-62, 353 S.E.2d 162, 165 (1987) (applying Summers to

substantially identical facts). The Court explained that the

state's interest in officer safety outweighed the "incremental

intrusion on personal liberty [caused by the defendant's

detention] when the search of a home has been authorized by a

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valid warrant." Summers, 452 U.S. at 703.

Second, courts have held that police may, without objective

suspicion, order occupants of a lawfully stopped car to perform

certain actions. In Pennsylvania v. Mimms, 434 U.S. 106, 110-11

(1977) (per curiam), the Court held that police may order the

driver of a lawfully stopped car out of the vehicle. The Court

reasoned that the important value of officer safety outweighed

the "mere inconvenience" to the driver, an "additional intrusion

[which] can only be described as de minimis." Id. at 111. The

Court explained as follows: "The police have already lawfully

decided that the driver shall be briefly detained; the only

question is whether he shall spend that period sitting in the

driver's seat of his car or standing alongside it." Id. In a

series of decisions, this Court has applied Mimms to similar

orders by police, including orders for passengers to step out of

stopped vehicles. See Stanley v. Commonwealth, 16 Va. App. 873,

875, 433 S.E.2d 512, 513 (1993) (citing, inter alia, Mimms, 434

U.S. at 111); Thompson v. Commonwealth, 16 Va. App. 478, 481, 431
S.E.2d 72, 74 (1993) (citing Hatcher v. Commonwealth, 14 Va. App.

487, 491-92, 419 S.E.2d 256, 258-59 (1992)); Hatcher, 14 Va. App.

at 492, 419 S.E.2d at 259; Bethea, 14 Va. App. at 478, 419 S.E.2d

at 251-52.

Finally, in Maryland v. Wilson, 117 S. Ct. 882, 884 (1997),

the United States Supreme Court extended the Mimms rule to

passengers. The Court reasoned that, "as a practical matter, the

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passengers are already stopped by virtue of the stop of the

vehicle." Wilson, 117 S. Ct. at 886. The Court held that the

state's weighty interest in preventing violence to police

outweighed the minimal "additional intrusion" on a passenger's

rights. Id.

In the Summers and Wilson lines of cases, the detention of

the defendant represented an incremental, additional intrusion

following an antecedent search or seizure based on probable cause

or reasonable suspicion, such as the execution of a valid search

warrant or lawful stop. The first facet of the detentions

approved in the Summers and Wilson lines of cases is that the
challenged seizure rests on an antecedent determination of

probable cause or reasonable suspicion. See Wilson, 117 S. Ct.

at 884 (holding that the Mimms rule "that a police officer may as

a matter of course order the driver of a lawfully stopped car to

exit his vehicle[] extends to passengers as well"); Summers, 452

U.S. at 703 ("The existence of a search warrant . . . provides an

objective justification for the detention."); Mimms, 434 U.S. at
109 ("[W]e . . . deal only with the narrow question of whether

the order to get out of the car, issued after the driver was

lawfully detained, was reasonable and thus permissible under the

Fourth Amendment."); Harris v. Commonwealth, __ Va. App. __, __,

__ S.E.2d __, __ (1998) (citing Wilson, 117 S. Ct. at 886)

("Following a lawful traffic stop, the Fourth Amendment permits

the police to order the passengers to get out of the car pending

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the completion of the stop."); Stanley, 16 Va. App. at 875, 433

S.E.2d at 513 (citing, inter alia, Mimms, 434 U.S. at 111) ("In

the context of the lawful stop of an automobile, the balancing of

these interests may permit the police to require both the driver

and any passengers to step out of the vehicle."); Thompson, 16

Va. App. at 481, 431 S.E.2d at 74 (citing Hatcher, 14 Va. App. at

491-92, 419 S.E.2d at 258-59) ("Upon the lawful stop of an

automobile, we have recognized that the balancing of these

interests may permit the police to require both the driver and

any passengers to step out of the vehicle."); Hatcher, 14 Va.
App. at 492, 419 S.E.2d at 259 ("If a driver's maneuvers give

rise to probable cause to believe that a traffic infraction has

occurred, then effecting a brief detention that includes not only

the driver and his car but his passengers as well, seems a

legitimate law enforcement goal."); Bethea, 14 Va. App. at 478,

419 S.E.2d at 251-52 ("While Mimms involved the driver of the

vehicle, the principles upon which the decision is based

logically extend to encompass a passenger in a lawfully detained

vehicle."); see also New York v. Class, 475 U.S. 106, 117-18
(1986) (describing one of the three factors in Summers and Mimms

as the existence of "some probable cause focusing suspicion on

the individual affected by the search"). 1
1
In three cases, Virginia courts have approved police orders
for the occupant of a vehicle to perform certain actions on the
basis of reasonable, articulable suspicion. See Bethea v.
Commonwealth, 245 Va. 416, 419-20, 429 S.E.2d 211, 213 (1993)
(criticizing this Court's Mimms-based reasoning, but approving
order to passenger to get out of the vehicle because it was based

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 The second facet of the detentions approved in the Summers

and Wilson lines of cases is that the seizures at issue were

minimal incremental intrusions cumulative to the search or

seizure already supported by probable cause or reasonable,

articulable suspicion. See Wilson, 117 S. Ct. at 886 (reasoning

that "the additional intrusion on the passenger is minimal");

Summers, 452 U.S. at 703 ("[T]he detention represents only an

incremental intrusion on personal liberty when the search of a

home has been authorized by a valid warrant."); Mimms, 434 U.S.
at 109 ("We think this additional intrusion can only be described

as de minimis."); Harris, __ Va. App. at __, __ S.E.2d at __

("This authority over passengers at a lawful traffic stop is

deemed a `reasonable' seizure under the Fourth Amendment because

the `weighty [public] interest in officer safety' during traffic

stops, which `may be dangerous encounters,' sufficiently

outweighs the minimal additional intrusion upon the private

interests of passengers, who `are already stopped by virtue of

the [lawful] stop of the vehicle.'" (quoting Wilson, 117 S. Ct.

on reasonable, articulable suspicion); Pryor v. Commonwealth, 17
Va. App. 117, 118-19, 435 S.E.2d 417, 418-19 (1993) (en banc)
(reciting facts justifying order for passenger to get out of car,
and specifically disavowing reliance on our Bethea and Hatcher
line of cases); Woodson v. Commonwealth, 14 Va. App. 787, 792-94,
421 S.E.2d 1, 4-5 (1992) (explaining Bethea analysis, but
ultimately "find[ing] that the evidence was sufficient to support
a reasonable suspicion that [the defendant] was involved in
criminal activity"), aff'd on other grounds, 245 Va. 401, 429
S.E.2d 27 (1993) (holding that defendant was not seized within
the meaning of the Fourth Amendment by the police order to place
his hands on the steering wheel because he did not comply).

- 27 -
at 885-86) (alterations in Harris)); Hatcher, 14 Va. App. at 491,

419 S.E.2d at 259 ("Here, appellant was not ordered to exit the

vehicle but to remain beside it while Officer Reetz conducted his

brief follow-up investigation following his detention of the car

and its occupants. As was the case in Mimms, the intrusion on

appellant's privacy rights and freedom of movement was de minimis

[sic] . . . ."); Bethea, 14 Va. App. at 478, 419 S.E.2d at 252

("To comply with the request, the passenger need only exit the

vehicle, an act that amounts to no more than a mere

inconvenience. Like the driver, the passenger 'is being asked to

expose to view very little more of his person than is already

exposed.'" (quoting Mimms, 434 U.S. at 111)). In the two cases

which did not discuss the minimal, incremental nature of the

seizure, the seizure was not challenged by the defendant, and we

merely explained the permissibility of the order to exit the

vehicle before reversing on other grounds. See Stanley, 16 Va.

App. at 875, 433 S.E.2d at 513-14; Thompson, 16 Va. App. at 481,

431 S.E.2d at 74.

In stark contrast, this case has none of the distinguishing

features of Wilson, Summers, Mimms, or the Virginia cases
applying them. Prior to ordering appellant to the ground, Duff

had made no valid, antecedent determination of reasonable

suspicion or probable cause with respect to appellant. Instead,

as the Commonwealth concedes, the police had no individualized

suspicion of appellant whatsoever. In addition, Duff's seizure

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of appellant was not an additional increment of intrusion

incident to an otherwise justified search or seizure of

appellant, see Mimms, 434 U.S. at 111, appellant's home, see

Summers, 452 U.S. at 701, or a vehicle, which incidentally and

necessarily intruded on appellant's mobility. See Wilson, 117

S. Ct. at 886. Duff's order to appellant to lie on the ground

was the seizure, and it was not conducted as a component part of

any legal search or seizure. Finally, Duff's seizure of

appellant cannot reasonably be described as "a mere

inconvenience," Mimms, 434 U.S. at 111, "minimal," Wilson, 117
S. Ct. at 886, or "de minimis." Hatcher, 14 Va. App. at 491, 419

S.E.2d at 259. Rather than being ordered to step out of his car

or to remain in his house, appellant was ordered to lie face down

on the sidewalk with his arms extended from his body. As opposed

to the circumstances addressed in Wilson, Summers, and Mimms,

Duff did not order appellant to perform a commonplace action like

stepping out of his car but instead ordered appellant to submit

to complete police control.

Balancing the individual's right to be free from arbitrary

government intrusions against society's countervailing interest

in preventing and detecting crime and in protecting its law

enforcement officers, see Brignoni-Ponce, 422 U.S. at 878, I
would hold that Duff's seizure of appellant required reasonable,

articulable suspicion of appellant's involvement in criminal

activity. "In the absence of any basis for suspecting appellant

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of misconduct, the balance between the public interest and

appellant's right to personal security and privacy tilts in favor

of freedom from police interference." Brown, 443 U.S. at 52; see

also Moss v. Commonwealth, 7 Va. App. 305, 308, 373 S.E.2d 170,

172 (1988) (citing Brown, 443 U.S. at 52). The majority's

resolution of the balance in favor of police power violates the

"central concern in balancing these competing considerations":

"to assure that an individual's reasonable expectation of privacy

is not subject to arbitrary invasions solely at the unfettered

discretion of officers in the field." Brown, 443 U.S. at 50-51

(citing Prouse, 440 U.S. at 654-55; Brignoni-Ponce, 422 U.S. at

882). Given the Commonwealth's concession that Duff did not have

reasonable, articulable suspicion to seize appellant, I would

hold the seizure unreasonable.

The majority lists several facts in support of the officers'

fears for their safety, including the number of people at the

scene, the reputation of the area for violence, and the nature of

the crime. These factors, however, are relevant only to a

determination of whether a seizure is supported by reasonable,
2
articulable suspicion. They are of no consequence here because
2
The majority cites Brown v. Commonwealth, 15 Va. App. 232,
421 S.E.2d 911 (1992), and Logan v. Commonwealth, 19 Va. App.
437, 452 S.E.2d 364 (1994) (en banc), in support of the factors
it lists. In Brown, we held that an officer's characterization
of the park where the defendant was arrested as an "open drug
market" was admissible as evidence of possession of cocaine with
intent to distribute, 15 Va. App. at 235, 421 S.E.2d at 913, but
parenthetically noted in the footnote cited by the majority that
"the defendant's presence in a high crime area, standing alone,
does not provide the requisite degree of suspicion to justify an

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the majority does not premise its holding on the ground that the

officers had reasonable suspicion to order appellant to lie down.

Instead, it holds "[u]nder the reasoning of Summers and Wilson"

that the officers could seize appellant notwithstanding the fact

that "[t]he officers lacked reasonable suspicion or probable

cause to believe appellant was engaged in criminal activity and

did not have an arrest warrant for the two target individuals."

In his dissent in Wilson, Justice Stevens wrote, "How far

this ground-breaking decision will take us, I do not venture to

predict. I fear, however, that it may pose a more serious threat

to liberty than the Court realizes." 117 S. Ct. at 890. Today,

the majority takes the step foreseen by Justice Stevens and

expands the reasoning of Wilson far beyond its limited context.
The majority's holding that police may seize individuals without

reasonable suspicion or probable cause represents a radical

departure from well-established Fourth Amendment principles found

in the prior decisions of the Supreme Court of the United States

as well as the courts of Virginia. Accordingly, I dissent.

investigatory stop." Id. at 234 n.1, 421 S.E.2d at 912 n.1. In
Logan, we held that a broken rear vent car window constituted
reasonable, articulable suspicion of criminal activity. Logan,
19 Va. App. at 441-42, 452 S.E.2d at 367-68.

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