COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
DERECK LAMONT HOLMES, S/K/A
DERRICK LAMONT HOLMES
MEMORANDUM OPINION * BY
v. Record No. 0629-00-3 JUDGE ROBERT P. FRANK
JANUARY 30, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on brief), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Dereck Lamont Holmes (appellant) was convicted in a bench
trial of two counts of felonious assault and battery of a police
officer in violation of Code § 18.2-57(C), one count of impeding
a police officer in violation of Code § 18.2-460(C) and one
count of possession of cocaine in violation of Code § 18.2-250.
On appeal, he contends the trial court erred in finding the
evidence was sufficient to support his convictions and in
denying his motion to suppress. Finding no error, we affirm the
convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
On June 16, 1998, at 4:30 a.m., Danville Police Officer
L.R. Kennedy was on patrol when he saw a 1988 two-door Pontiac
with Virginia license plates driving backwards on Berryman
Avenue onto East Stokes Street. Kennedy stopped the vehicle.
While the officer performed field sobriety tests on the driver,
appellant, who was a passenger, got out of the car and moved to
the sidewalk. Officer Kennedy observed that appellant appeared
to be intoxicated. Appellant was staggering and had a dazed
look about his person and on his face.
Concerned for his safety while he dealt with the driver,
Kennedy asked appellant to get back in the car. Appellant did
not comply. Officer Kennedy repeated his request. He asked
appellant to get into the car between six and eight times before
appellant finally complied.
Officer Kennedy ultimately arrested the driver for driving
under the influence. The driver asked that Officer Kennedy
leave the vehicle on the side of the road. Officer Kennedy
approached the passenger side of the car and told appellant to
get out of the car so that he could perform an inventory search,
which he was required to do by department policy. Officer
Kennedy believed that appellant was intoxicated so he told
appellant he was going to check his sobriety. After about ten
to fifteen seconds, appellant got out of the vehicle and, when
he did so, Kennedy saw a large bulge in his right front pocket.
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The large bulge was approximately the size of a baseball. The
officer could not tell what was in appellant's pocket.
The bulge in appellant's pocket, as observed by Kennedy,
was "a large indiscriminate bulge." He stated, "It didn't
appear to have any corners or particular shape, but still it was
enough of a bulge that would stand out to a noticeable degree
that it would catch my attention." He said the bulge was
thicker than it was long. He agreed that the bulge could have
been the length and approximate thickness of a baseball, but
said he had seen pistols smaller than a baseball. As to whether
the object was flat or bulging out, Kennedy said the object was
bulging, but he could not tell whether it was flat, square, or
rectangular. Kennedy did not have an opportunity to search
inside appellant's pocket.
As appellant left the vehicle, he was still staggering.
Kennedy could smell alcohol "coming from his breath" and his
eyes were bloodshot and glassy. Officer Kennedy told appellant
to put his hands on top of the vehicle so he could perform a
pat-down for weapons. Appellant told Kennedy, "No," and then
put his right hand in his right front pocket, the same pocket
containing the bulge. Appellant made no aggressive motion until
Kennedy announced the pat-down. Officer Kennedy reached out to
stop him because he believed appellant "may have had a pistol in
his pocket." As Officer Kennedy reached out to grab appellant's
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hand, he made contact with appellant's pocket and felt a hard
object, but could not identify the object.
Appellant then bent his knees, squatting slightly, and came
up with both hands, shoving Kennedy in the chest with his right
hand. His left hand made contact with Officer Hyler. The two
officers were pushed back eight to twelve inches.
As both officers attempted to grab appellant, all three
fell to the sidewalk. A struggle that lasted for approximately
seven to ten minutes ensued. During the struggle, both officers
tried to handcuff appellant. Kennedy used chemical mace on
appellant, but appellant continued to struggle. Appellant had
both fists balled up but he was not striking the officers with
his fists. He was trying to pull free from their grasp.
Officer Kennedy was hit "with a few elbows and I was kneed a
couple of times, close to the groin area." Appellant, during
the struggle, also struck Officer Hyler in the chest with his
elbows.
The two officers managed to handcuff appellant in front,
and then, after a third officer arrived, they cuffed appellant's
hands behind his back. Officer Kennedy then searched appellant
and found lighters, tissues, change, papers, and a homemade
smoking device in appellant's right front pocket, the same
pocket where Kennedy initially saw the bulge.
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Appellant, while admitting to having tissues, a lighter,
and a crack pipe in his pocket, denied there was a bulge in his
pocket and denied reaching into the pocket.
When ruling on the suppression motion, the trial court
found:
Then he was finally ordered to step out
of the car, and due to his behavior and his
demeanor, the police had reason to believe
that he was probably under the influence of
alcohol or some other substance. Now, at
that point in time, the officer noticed that
the defendant had a bulge in his right front
pocket. After he saw the bulge, he told the
defendant that he was going to frisk him or
to pat him down. Now, at that point in
time, the officer had observed the defendant
had been staggering, he'd smelled the odor
of alcohol and when the defendant said "no",
up until that point I think that we have a
question here that a reasonable pat down
might be called into order. But the
defendant's behavior at that point took a
different turn. He initially began to move
his hand toward his right front pocket and,
in fact, reach into his pocket at which time
the officer reached out to stop the
defendant, believing that he might have had
a weapon and felt a hard object. I think at
that point the Court has to look at the
circumstances in determining the officers
behavior as to whether they were reasonable
or not: We are in the middle of the night,
a dark street, there has just occurred a
violation of the law and the behavior of the
defendant at that time became suspicious.
It was obvious that he was attempting to
avoid the officers touching him and when he
made a movement toward his pocket I think
that the officer had, at that point in time,
the right to protect himself, to ensure that
he could pursue his investigation further
without harm coming to himself.
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II. ANALYSIS
Appellant first contends the police did not have a
reasonable basis to believe he was carrying a weapon. He states
three reasons for this contention: 1) the officer only had a
generalized belief, 2) the bulge could not reasonably have been
thought to be a weapon, and 3) being drunk in public cannot
justify a pat-down, citing Lovelace v. Commonwealth, 258 Va.
588, 522 S.E.2d 856 (1999).
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); Alexander v. Commonwealth,
19 Va. App. 671, 674, 454 S.E.2d 39, 41
(1995). 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). "[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) (citing
Ornelas v. United States, 517 U.S. 690, 699,
116 S. Ct. 1657, 1659, 134 L.Ed.2d 911
(1996)). 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); see also Ornelas, 517 U.S. at 699,
116 S. Ct. at 1659.
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Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359
(1999).
"Once a police officer has properly detained a suspect for
questioning, 1 he may conduct a limited pat-down search for
weapons if he reasonably believes that the suspect might be
armed and dangerous." Williams v. Commonwealth, 4 Va. App. 53,
66, 354 S.E.2d 79, 86 (1987) (citations omitted).
It is not unreasonable for a police
officer to conduct a limited pat-down search
for weapons when the officer can point to
"specific and articulable facts" "which
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.'"
James v. Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92
(1996) (citations omitted).
"Among the circumstances to be
considered in connection with this issue are
the 'characteristics of the area' where the
stop occurs, the time of the stop, whether
late at night or not, as well as any
suspicious conduct of the person accosted
such as an obvious attempt to avoid officers
or any nervous conduct on the discovery of
their presence."
Williams, 4 Va. App. at 67, 354 S.E.2d at 86-87 (citation
omitted).
Appellant's argument presupposes there was a pat-down.
However, the record establishes that a pat-down did not occur.
1
Appellant does not contest validity of the stop or
detention or his removal from the vehicle.
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While the officer intended to pat appellant down, appellant's
actions prevented the officer from doing so. The trial court
found, and we agree, that upon appellant reaching into his
pocket that contained the bulge, the officer reached to grab
appellant's hand to protect himself and only incidentally
touched the bulge. We, therefore, need not address whether or
not the officer reasonably believed appellant might be armed and
dangerous. Once appellant pushed both officers away and engaged
in a struggle with the officers, the officers had probable cause
to arrest appellant for felony assault and battery. Further,
since appellant was staggering and had a dazed look, bloodshot
eyes, and an odor of alcohol about his person, the officers also
had probable cause to arrest appellant for being drunk in
public. 2 The subsequent search was valid as a search incident to
a lawful arrest.
"[T]he test of constitutional validity
[of a warrantless arrest and incidental
search] is whether . . . the arresting
officer had knowledge of sufficient facts
and circumstances to warrant a reasonable
man in believing that an offense has been
committed." Bryson v. Commonwealth, 211 Va.
85, 86-87, 175 S.E.2d 248, 250 (1970). To
establish probable cause, the Commonwealth
must show "'a probability or substantial
chance of criminal activity, not an actual
showing'" that a crime was committed. Ford
v. City of Newport News, 23 Va. App. 137,
143-44, 474 S.E.2d 848, 851 (1996) (quoting
2
Although public drunkenness is a Class 4 misdemeanor,
pursuant to Code § 19.2-74(A)(2), the police are authorized to
arrest the accused and not merely issue a summons.
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Illinois v. Gates, 462 U.S. 213, 243 n.13,
103 S. Ct. 2317, 2335 n.13, 76 L.Ed.2d 527
(1983)). Ordinarily, the Fourth Amendment
requires only that an objectively reasonable
basis exist for a search. See, e.g., Whren
v. United States, 517 U.S. 806, 812-13, 116
S. Ct. 1769, 1774, 135 L.Ed.2d 89 (1996).
"'[T]hat the officer does not have the state
of mind which is hypothecated by the reasons
which provide the legal justification for
the officer's action does not invalidate the
action taken as long as [all] the
circumstances, viewed objectively, justify
that action.'" Id. at 813, 116 S. Ct. at
1774 (quoting Scott v. United States, 436
U.S. 128, 138, 98 S. Ct. 1717, 1723, 56
L.Ed.2d 168 (1978)).
Debroux v. Commonwealth, 32 Va. App. 364, 381, 528 S.E.2d 151,
159, aff'd on reh'g en banc, 34 Va. App. 72, 537 S.E.2d 630
(2000).
In this case, because the officer did not pat-down
appellant and because the police found the cocaine during a
search incident to a lawful arrest, we affirm the trial court's
denial of the motion to suppress.
Appellant next contends the trial court erred in convicting
appellant of two counts of assault and battery of police
officers. Specifically, he argues no evidence indicated he
intentionally caused the officers bodily harm. He further
contends he had a right to resist an unlawful search.
Similarly, he contends the trial court erred in convicting him
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of "obstruction of justice" under Code § 18.2-460 because the
officers were not "lawfully engaged" in their duties. 3
As we stated in Perkins v. Commonwealth, 31 Va. App. 326,
523 S.E.2d 512 (2000):
An assault and battery is the unlawful
touching of another. See Gnadt v.
Commonwealth, 27 Va. App. 148, 151, 497
S.E.2d 887, 888 (1998). Assault and battery
is "the least touching of another, willfully
or in anger." Roger D. Groot, Criminal
Offenses and Defenses in Virginia 29 (4th
ed. 1998). The defendant does not have to
intend to do harm; a battery may also be
"done in a spirit of rudeness or insult."
Id. (footnote omitted). The touching need
not result in injury. See Gnadt, 27 Va.
App. at 151, 497 S.E.2d at 888. A touching
is not unlawful if the person consents or if
the touching is justified or excused. See
id.; Groot, supra, at 30 ("an intentional
touching which was not justified or excused
is a battery").
Id. at 330, 523 S.E.2d at 513.
3
Code § 18.2-460(C) states:
If any person by threats of bodily harm
or force knowingly attempts to intimidate or
impede a judge, magistrate, justice, juror,
witness, or any law-enforcement officer,
lawfully engaged in the discharge of his
duty, or to obstruct or impede the
administration of justice in any court
relating to a violation of or conspiracy to
violate § 18.2-248 or § 18.2-248.1 (a) (3),
(b) or (c), or relating to the violation of
or conspiracy to violate any violent felony
offense listed in subsection C of
§ 17.1-805, he shall be guilty of a Class 5
felony.
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Whether a touching is a battery depends on the intent of
the actor, not on the force applied. Wood v. Commonwealth, 149
Va. 401, 405, 140 S.E. 114, 115 (1927).
Appellant admits he pushed both officers. This act, alone,
is an unlawful, willful touching done "in a spirit of rudeness
or insult." Further, appellant engaged the officers in a
struggle that resulted in all three participants being thrown to
the ground. In the ensuing struggle, appellant kneed one
officer and elbowed both officers. The fact finder could
reasonably find an "unlawful, willful touching" that was "done
in a spirit of rudeness and insult."
As noted earlier, the police had probable cause to arrest
appellant for public drunkenness. While appellant relies on
Lovelace for his contention that the police cannot pat-down a
person suspected of committing a Class 4 misdemeanor, he
misreads Code § 18.2-460(C) set forth in footnote three above.
Further, Lovelace does not support appellant's argument.
Rather, it addresses "search incident to citation" as expounded
in Knowles v. Iowa, 525 U.S. 113 (1998). Lovelace, 258 Va. at
593-94, 522 S.E.2d at 858-59. In Lovelace, the Supreme Court of
Virginia opined that when a suspect is stopped for an offense
that only gives rise to a citation or summons, a "full
field-type search" is not allowed. Id. at 594, 522 S.E.2d at
859. The Court wrote, "Because the nature and duration of such
an encounter are significantly different and less threatening
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than in the case of an officer effecting a custodial arrest, the
rationales justifying a full field-type search are not
sufficient to authorize such a search incident to the issuance
of a citation." Id. Yet Lovelace, citing Knowles, did not bar
a "pat-down" in a citation situation under the proper
circumstances. Id. at 594, 522 S.E.2d at 858-59. The Court
wrote, "However, the Supreme Court recognized that the concern
for officer safety is not absent in a routine traffic stop and
may justify some additional intrusion. However, by itself, it
does not warrant the greater intrusion accompanying 'a full
field-type search.'" Id. at 594, 522 S.E.2d at 858 (citation
omitted).
The Court further opined:
We believe that the scope of these
further intrusions is limited to what is
necessary to answer the concerns raised by
the presence of either historical rationale.
In other words, an encounter between a
police officer and an individual that is
similar to a routine traffic stop and
results in the issuance of a citation or
summons may involve some degree of danger to
the officer or some need to preserve or
discover evidence sufficient to warrant an
additional intrusion, but it will not
necessarily justify a full field-type
search.
Id. at 594, 522 S.E.2d at 859.
We conclude from Lovelace that, even in a citation offense,
the officer may pat-down the suspect if the officer reasonably
believes that the suspect might be armed and dangerous.
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Assuming, without deciding, that appellant had a right to
resist an unlawful pat-down, we find the officers were "lawfully
engaged in the discharge of [their] duties." Appellant was
properly convicted of assault and battery on police officers and
impeding a police officer.
For these reasons, we affirm appellant's convictions.
Affirmed.
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