COURT OF APPEALS OF VIRGINIA
Present: Judge Benton, Senior * Judge Cole and
Retired Judge Trabue
Argued at Richmond, Virginia
LEE EDWARD SATTLER
OPINION BY
v. Record No. 0146-94-2 JUDGE JAMES W. BENTON, JR.
MAY 16, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Robert G. Cabell, Jr., for appellant.
Kathleen B. Martin, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
This appeal arises from the trial judge's denial of a motion
to suppress evidence obtained during a warrantless search. Lee
Edward Sattler contends that the trial judge erred in holding
that a police officer lawfully searched Sattler before issuing a
summons for a traffic violation. We reverse the trial judge's
refusal to suppress the evidence.
The evidence presented at the suppression hearing proved
that a state police officer observed Sattler's automobile
abruptly turn from an interstate highway onto an exit. The
officer followed the automobile but did not signal Sattler to
stop because he had not decided to stop the driver. The officer
testified that as the automobile approached a service station he
*
Retired Judge Kenneth E. Trabue took part in the
consideration of this case by designation pursuant to Code
§ 17-116.01.
saw a radar detector device and made the decision to stop the
driver and issue a citation. When Sattler drove to the station's
fuel pump and exited his automobile, the officer parked his
vehicle behind Sattler's automobile and asked Sattler for his
driver's license, registration, and radar detector device. The
officer told Sattler that he would issue a summons for the radar
detector violation; however, he also told Sattler that he could
pump the gas, pay for it, and then move his automobile. The
officer moved his vehicle to a side area. When Sattler completed
the purchase and moved his automobile to join the officer, the
officer told Sattler to sit in the officer's vehicle but that he
would first "pat" Sattler for weapons. The officer testified
that he "pat[s] everybody down [for weapons] prior to them coming
back to [his] vehicle."
During the frisk for weapons, the officer felt an object in
Sattler's pocket. He said that when Sattler took a step back, he
reached into Sattler's pocket and retrieved a pipe. He then
arrested Sattler for possession of marijuana that he saw in the
pipe. After placing handcuffs on Sattler, the officer searched
Sattler's automobile and seized a bag of marijuana and psilocyn.
The trial judge found that the officer's search for weapons
was reasonable and refused to suppress the evidence. At trial,
where the evidence was admitted, Sattler was convicted of
possession of marijuana and possession of psilocyn.
The Fourth Amendment prohibits unreasonable searches and
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seizures. 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." Stanley v. Commonwealth, 16 Va. App. 873,
875, 433 S.E.2d 512, 513 (1993). To conduct a patdown search, a
police officer must be able to "'"point to specific and
articulable facts which, taken together with rational inferences
from those facts,"' reasonably lead him to conclude, 'in light of
his experience, that "criminal activity may be afoot" and that
the suspect "may be armed and presently dangerous."'" Id.
(citations omitted). In Stanley, we held that it was
unreasonable for police officers to conclude that a person on a
motor scooter was armed and dangerous because a police officer
saw a bulge in the person's pocket following a traffic stop. 16
Va. App. at 877, 433 S.E.2d at 515.
The evidence at the suppression hearing failed to prove that
the officer had specific and articulable facts upon which to
conclude that Sattler was armed and dangerous. The officer
initially detained Sattler solely for the purpose of issuing a
summons for a traffic infraction. Sattler was not under arrest.
The officer offered no reason to support a belief that Sattler
was armed or dangerous or that he possessed illegal drugs.
The officer searched Sattler solely because of his general
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policy of searching every person entering his vehicle. In every
encounter, "Terry requires reasonable, individualized suspicion
before a frisk for weapons can be conducted." Maryland v. Buie,
494 U.S. 325, 334 n.2 (1990). The officer's generalized policy
of frisking all persons does not satisfy the restrictions imposed
by Terry. "Indeed, if everyone is assumed to be armed and
dangerous until the officer is satisfied that he or she is not,
then officers would be able to frisk at will -- a result not
contemplated by the Fourth Amendment." State v. Garland, 636
A.2d 541, 548 (N.J. Super. Ct. App. Div. 1994).
Accordingly, we hold that the trial judge erred in finding
that the officer's search was reasonable and in refusing to
suppress the seized evidence.
Reversed and remanded.
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Cole, J., concurring.
I concur in the judgment reversing the trial court's refusal
to suppress the evidence. However, my opinion is based upon the
inadequate record in this case.
The operation of a motor vehicle equipped with a radar
detector to detect radar used by law enforcement personnel is
unlawful on the highways of the Commonwealth and constitutes a
traffic infraction. Code § 46.2-1079. Traffic infractions are
not felonies or misdemeanors but are violations of public order
and are not deemed criminal in nature. Code § 18.2-8. However,
Code § 46.2-937 provides that "[f]or purposes of arrest, traffic
infractions shall be treated as misdemeanors" and "the authority
and duties of arresting officers shall be the same for traffic
infractions as for misdemeanors." If the offense of possession
of a radar detector was a misdemeanor, the officer could have
searched the defendant incident to the arrest. See Leeth v.
Commonwealth, 223 Va. 335, 340-41, 288 S.E.2d 475, 478 (1982)
(holding that because the officer possessed probable cause, he
could search the car for a radar detector). None of these issues
was raised in the trial court or on appeal. The only issue
raised was the reasonableness of the Terry stop. The only reason
given for the patdown was the officer's personal policy of
frisking everyone who entered his police car. Based upon this
record, I join the majority opinion.
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