COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Richmond, Virginia
REGINALD LEE HALL
OPINION BY
v. Record No. 1286-95-3 JUDGE JAMES W. BENTON, JR.
APRIL 2, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
James J. Angel for appellant.
Richard H. Rizk, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Reginald Lee Hall was convicted of possession of cocaine in
violation of Code § 18.2-250. He contends that the police
officer searched his person in violation of the Fourth Amendment
of the United States Constitution. We agree and reverse the
conviction.
The evidence proved that Officers H. Wayne Duff and M. R.
Soyars saw a truck being driven at night in the City of Lynchburg
with only one operable headlight. The truck was on a street in
an area where Officer Duff had made arrests for drugs and found
weapons on the persons he arrested. The officers decided to stop
the truck.
Officer Soyars approached the truck and spoke with the
driver at the rear of the vehicle. Officer Duff stood on the
passenger side of the truck, where Hall was sitting. As Officer
Duff examined the interior of the truck with his flashlight, he
saw what appeared to be a small revolver in the middle of the
front seat. Officer Duff grabbed Hall, pulled him from the
truck, and made him place his hands on the rear of the truck.
While Hall remained at the rear of the truck with Officer
Soyars, Officer Duff retrieved the object and discovered that it
was a plastic toy gun. Officer Duff then conducted a "pat-down"
search of Hall because he "felt that there was a possibility that
there may be weapons." During the "pat-down" and subsequent
search, Officer Duff found a candy holder with a white substance
residue that was later tested and found to be cocaine.
Officer Duff arrested Hall for possession of cocaine. The
trial judge overruled Hall's motion to suppress the cocaine and
convicted Hall of possession of cocaine.
The United States Supreme Court has articulated "a narrowly
drawn authority to permit a reasonable search for weapons for the
protection of the police officer, where [the police officer] has
reason to believe that he is dealing with an armed and dangerous
individual." Terry v. Ohio, 392 U.S. 1, 27 (1968). The evidence
in this record proved that after Officer Duff removed Hall to the
rear of the truck and removed the object on the seat, he
discovered that it was a toy. Although Duff knew that he had
misjudged the circumstances upon which he had formed his
suspicion that Hall might be armed and dangerous, he nevertheless
frisked Hall for weapons.
Officer Duff did not articulate why he continued to believe
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that Hall was armed and dangerous. He articulated no reason why
his discovery that the object was a toy did not fully dispel his
suspicion of danger. In its brief, the Commonwealth asserts that
Officer Duff could have continued to believe Hall was armed and
dangerous because the stop occurred in a "well-known drug
market." We disagree. The fact that Hall was in a vehicle
travelling in or near a neighborhood frequented by individuals
who use illegal drugs is not a basis for concluding that Hall was
engaged in criminal conduct or dangerous. See Brown v. Texas,
443 U.S. 47, 52 (1979). See also Smith v. Commonwealth, 217 Va.
336, 337, 228 S.E.2d 562, 562-63 (1976).
"[T]housands of citizens live and go about
their legitimate day-to-day activities in
areas which surface . . . in court testimony,
as being high crime neighborhoods. The fact
that the events here at issue took place at
or near an allegedly 'high narcotics
activity' area does not objectively lend any
sinister connotation to facts that are
innocent on their face."
Riley v. Commonwealth, 13 Va. App. 494, 498, 412 S.E.2d 724,
726-27 (1992)(citation omitted).
We hold that after Duff discovered that the item was a toy,
he no longer had a reason to believe Hall was armed or dangerous.
Accordingly, we hold that the frisk was in violation of Hall's
Fourth Amendment rights.
The Commonwealth also argues that Hall lacks standing to
challenge the search because he told the police that the jacket
he was wearing was not his. The evidence proved that the officer
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found the pipe in the jacket; however, the container with the
residue that tested to be cocaine was found in Hall's front pants
pocket. Thus, even assuming Hall had no standing to object to a
search of the jacket the standing argument lacks merit.
The officer testified that when he found the pipe during the
unlawful frisk, Hall consented to the further search. Thus, the
testimony proved that Hall's consent to search was not an
independent source of the evidence. "[T]he evidence obtained
pursuant to . . . voluntary consent to search was come at by
exploitation of [the initial] illegality rather than by means
sufficiently distinguishable to be purged of the primary taint."
Commonwealth v. Ealy, 12 Va. App. 744, 757, 407 S.E.2d 681, 689
(1991) (citations omitted).
Accordingly, we reverse the trial judge's failure to
suppress the cocaine, reverse the conviction, and remand the case
for further proceedings if the Commonwealth be so advised.
Reversed and remanded.
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