El-Amin v. Com.

Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and
Agee, JJ., and Carrico, S.J.

RAJAEE EL-AMIN

v. Record No. 040143 OPINION BY JUSTICE ELIZABETH B. LACY
January 14, 2005
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

A police officer conducted a pat down search of Rajaee

El-Amin because a gun was discovered on the person of El-

Amin's companion. El-Amin asserts that the officer had no

reason to suspect that El-Amin was armed and dangerous and,

therefore, that the search violated the Fourth Amendment.

Based on the totality of the circumstances, we conclude that

the search was reasonable and did not violate the Fourth

Amendment.

Facts

On the evening of August 4, 2000, the Richmond police

received an anonymous tip that six young black males were at

the corner of Front Street and Fifth Avenue smoking marijuana.

Officers Steven M. Kuzniewski and James H. Baldwin responded

to the dispatcher's call relaying this information. Although

observing no signs of drug or other criminal activity, the

officers approached four young black males walking one-half

block from the identified corner and asked to speak with them.

Two of the young men walked over to the police officers, while
El-Amin and another of the group (the fourth individual)

stayed further back but separate from each other. Moments

later, Officers David C. Williams and Mark Zilliox also

arrived in response to the call, and Williams immediately

observed the fourth individual turn away and shove his hands

into his waistband. Officer Williams drew his gun and asked

the young man to "stop, turn around, and face [him]." When

the fourth individual did not comply, Officer Williams tried

to conduct a pat-down search of his person. The young man

reached for his waistband, and Officer Baldwin had to secure

his left arm so that Officer Williams could continue the pat-

down search. Officer Williams felt what he believed to be a

gun, yelled "gun," and found a pellet gun in the fourth

individual's waistband.

Upon hearing his fellow officer yell "gun," Officer

Kuzniewski determined that, because the four individuals were

traveling in a "pack," for "safety reasons" he should pat down

the other members of the group. He told the other three

members of the group to approach and place their hands on the

nearest police cruiser for a pat-down search. Although he had

no particularized safety concerns as to El-Amin prior to

learning that the fourth individual had a gun, Officer

Kuzniewski conducted a pat-down search of El-Amin and found a

.38-caliber revolver. He arrested El-Amin for illegal

2
possession of a handgun as a juvenile. After the arrest,

Officer Zilliox searched El-Amin and discovered cocaine and

marijuana in his pockets. El-Amin was subsequently charged

with violations of Code § 18.2-248, possession of cocaine with

the intent to distribute, and Code § 18.2-308.4, possession of

a firearm while in possession of a controlled substance.

Proceedings

Prior to his trial, El-Amin filed a motion to suppress

the evidence claiming a violation of his rights under the

Fourth, Fifth, Sixth, and Fourteenth Amendments to the

Constitution of the United States. The trial court denied the

motion. El-Amin was convicted of the charges and sentenced to

a total of ten years imprisonment, with five years suspended.1

On appeal, a panel of the Court of Appeals reversed the

convictions holding that the trial court's denial of El-Amin's

motion to suppress was error.2 The Court of Appeals granted

the Commonwealth's motion for a rehearing en banc and vacated

the panel's opinion and order. The rehearing resulted in an

evenly divided vote which thereby affirmed the trial court's

1
The Conviction and Sentencing Order dated April 4, 2001
lists convictions of possession of a firearm while in
possession of cocaine and possession of cocaine with intent to
distribute, but the Court of Appeals noted this was a clerical
error because the trial judge reduced the intent to distribute
charge to mere possession, a violation of Code § 18.2-250.

3
judgment. El-Amin filed a timely appeal to this Court

asserting that the evidence obtained by the police from the

pat-down search of his person was obtained in violation of his

Fourth Amendment rights and Article 1, Section 10 of the

Constitution of Virginia.3

In the courts below, El-Amin argued that his Fourth

Amendment rights were violated initially when approached by

Officers Kuzniewski and Baldwin because the information

provided by the unidentified informant was insufficient to

justify a stop of the four young men. See Florida v. J.L.,

529 U.S. 266 (2000). At oral argument in this Court, El-Amin

abandoned that position and no longer contests the proposition

that his initial encounter with the police officers was

consensual.

El-Amin maintains, however, that he was

unconstitutionally seized and searched at the time Officer

Kuzniewski directed him to lean on the police car and

conducted a pat-down search. El-Amin contends that under

2
The Court of Appeals dismissed El-Amin's original appeal
because the transcripts were not timely filed, but later
granted El-Amin a delayed appeal.
3
The rights El-Amin asserts under the Fourth Amendment
are co-extensive with those rights afforded under Article 1,
Section 10 of the Constitution of Virginia. Lowe v.
Commonwealth, 230 Va. 346, 348, 337 S.E.2d 273, 274 (1985).
For purposes of this opinion we include El-Amin's state
constitutional rights in our discussion of his federal
constitutional rights.

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Terry v. Ohio, 392 U.S. 1 (1968), this search and seizure

required, at a minimum, that Officer Kuzniewski have a

reasonable articulable suspicion that El-Amin was engaged in

criminal activity and that he was a danger to the officer.

El-Amin contends that no such particularized suspicion existed

here, and, therefore, the search and seizure, based solely on

El-Amin's association or physical proximity to the other three

youths, was unconstitutional.

Discussion

The Fourth Amendment to the United States Constitution

provides that:

The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon
probable cause . . . and particularly describing the
place to be searched, and the persons or things to
be seized.

U.S. Const. amend. IV. "The basic purpose of this Amendment,

as recognized in countless decisions of [the United States

Supreme] Court, is to safeguard the privacy and security of

individuals against arbitrary invasions by governmental

officials." Camara v. Municipal Court, 387 U.S. 523, 528

(1967). The standard for a constitutional search or seizure

is reasonableness. Elkins v. United States, 364 U.S. 206, 221

(1960). The United States Supreme Court has identified

5
various circumstances in which a search and seizure complies

with the reasonableness requirement.

The Court has held that searches and seizures conducted

pursuant to a particularized warrant based on probable cause

as adjudged by a magistrate are reasonable. See Massachusetts

v. Sheppard, 468 U.S. 981, 987-91 (1984); McDonald v. United

States, 335 U.S. 451, 455 (1948). Recognizing that law

enforcement will not always be in a position to secure a

warrant prior to detaining or searching persons suspected of

criminal activity, the Court has held that searches and

seizures based on probable cause that the individual is

engaged in criminal activity are reasonable for purposes of

the Fourth Amendment. Whren v. United States, 517 U.S. 806,

819 (1996); United States v. Watson, 423 U.S. 411, 423-24

(1976). The Court has also concluded that a more limited stop

and search of a person, where based on a reasonable

articulable suspicion that he or she is, has, or is about to

engage in criminal activity and may be armed and dangerous, is

reasonable under the Fourth Amendment. Adams v. Williams, 407

U.S. 143, 146 (1972); Terry, 392 U.S. at 24. Furthermore, the

Court has held that the limited detention involved in

requiring a driver or passengers to step out of a vehicle

stopped for a traffic violation is reasonable for purposes of

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the Fourth Amendment. Maryland v. Wilson, 519 U.S. 408, 414-

15 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 109-11 (1977).

In reaching the conclusion that these searches and

seizures did not violate the Fourth Amendment, the Supreme

Court has employed a balancing test, weighing the "personal

security" interests of the individual against the public

purpose served by the search or seizure. Wilson, 519 U.S. at

411; Mimms, 434 U.S. at 109; Terry, 392 U.S. at 19-21. In

doing so, the Court identified law enforcement's

responsibility for criminal investigation and the need to

provide for the safety of the officers involved in such

investigations as a public purpose. Wilson, 519 U.S. at 413;

Mimms, 434 U.S. at 110-11; Terry, 392 U.S. at 22-24.

Balancing these public purposes and the individual's interest

in personal privacy, the Court concluded that the intrusions

were reasonable. Wilson, 519 U.S. at 414-15; Mimms, 434 U.S.

at 111; Terry, 392 U.S. at 31.

The Commonwealth suggests that in this case, Officer

Kuzniewski's legitimate concern for his safety and that of the

other police officers was sufficient to justify the pat down

search at issue and under these circumstances there is no need

for the requirement of particularized suspicion initially

addressed in Terry. See also Maryland v. Buie , 494 U.S. 325,

334 (1990) ("Terry requires reasonable individualized

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suspicion before a frisk for weapons can be conducted.");

Ybarra v. Illinois, 444 U.S. 85, 94 (1979) ("The 'narrow

scope' of the Terry exception does not permit a frisk for

weapons on less than reasonable belief or suspicion directed

at the person to be frisked.") In support of its position,

the Commonwealth points to a handful of cases from the federal

courts of appeal that the Commonwealth suggests have adopted a

"companion rule." United States v. Simmons, 567 F.2d 314 (7th

Cir. 1977); United States v. Poms, 484 F.2d 919 (4th Cir.

1973) (per curiam); United States v. Berryhill, 445 F.2d 1189

(9th Cir. 1971). That "rule" approves the search of the

companion of a person validly detained based solely on the

status of companion. We decline to adopt such a per se rule.4

The United States Supreme Court has not considered the

validity of a pat down search under circumstances such as

4
Furthermore, we disagree that these cases establish a
per se "companion rule" because the searches in each case were
sustained on grounds other than simple companionship.
Simmons, 567 F.2d at 320 (valid search of the area within
reach of a companion present during the arrest of a suspect
for a violent crime occurring the same night); Poms, 484 F.2d
at 921-22 (the search of a known associate of an arrestee
valid when the police knew the associate was likely armed and
the associate arrived at the arrestee's home during the
execution of a search warrant); Berryhill, 445 F.2d at 1193
(search of an arrestee's wife's purse valid when police
executed an arrest warrant for arrestee and found his wife in
the same car because arrestee could not raise wife's personal
Fourth Amendment rights and the purse was a "temporary
depository" of arrestee's property).

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those presented in this case.5 Nevertheless, prior cases of

that Court are instructive. In Terry, the Supreme Court was

faced with a factual situation that involved "an entire rubric

of police conduct – necessarily swift action predicated upon

the on-the-spot observations of the officer on the beat." 392

U.S. at 20. The Court recognized the need for police officers

in such situations to be able to protect themselves and to

avoid unnecessary risks when they suspect an individual may be

armed and dangerous. Under such circumstances, the Court in

Terry determined that a pat down search did not require that

an officer be "absolutely certain" that an individual was

armed prior to search. "[T]he issue is whether a reasonably

prudent [person] in the circumstances would be warranted in

the belief that his safety or that of others is in danger."

392 U.S. at 27.

Applying these concepts to the case at bar, we conclude

that Officer Kuzniewski was warranted in his belief that his

5
In Ybarra v. Illinois, the Supreme Court held that the
police improperly searched a patron at a bar while executing a
search warrant for the bartender and the premises, stating
that "a person's mere propinquity to others suspected of
criminal activity, does not, without more, give rise to
probable cause to search that person." 444 U.S. at 96.
Ybarra is not dispositive here because in Ybarra the officers
did not consider the patron and bartender as part of a group,
the officers had no reason to believe that they were subject
to any particular danger from any of the patrons in the bar,
and simply told all patrons that they were conducting a
" 'cursory search for weapons.' " Id. at 341.

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safety and the safety of others was in danger from El-Amin.

The encounter took place in the evening in a high crime area.

Officer Kuzniewski believed that the four individuals were a

group.6 Although El-Amin and the fourth individual did not

engage in conversation with the officers during the initial

consensual encounter, they remained within six feet of the

officers and did not attempt to withdraw from the area of the

encounter, further supporting the officers' perception that

the four individuals were a group.

Officer Kuzniewski testified that prior to learning that

the fourth member of the group had a gun, El-Amin's actions

did not give rise to any safety concerns. However, on the

totality of facts presented here, upon learning that the

fourth individual had a hand gun, Officer Kuzniewski was

warranted in inferring that the inherent tendency toward

violence demonstrated by one group member carrying a gun

raised reasonable and particularized safety concerns as to

other members of the same group. The circumstances in this

case support the officer's objectively reasonable apprehension

that, upon discovery of a weapon on the person of one member

of the group, the other members of the group might also be

armed and dangerous.

6
Although El-Amin disputes the characterization of the
four individuals as a group, the trial court found, as a

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 In reaching this conclusion, we are careful to dispel any

implication that El-Amin's companionship status alone was

sufficient to authorize a pat down search or that an officer's

generalized concern for his safety alone would validate such a

search under the Fourth Amendment. The totality of the facts

in this case – place, time, discovery of a weapon, and group

activity – validates the pat down search under the principles

utilized by the Supreme Court when considering Fourth

Amendment challenges to searches and seizures.

For the reasons stated, the pat down search of El-Amin

following discovery of a weapon on his companion did not

violate El-Amin's Fourth Amendment rights. Therefore, the

trial court did not err in refusing to suppress the evidence

found as a result of the pat-down search, and we will affirm

his convictions.

Affirmed.

matter of fact, that they were a group.

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