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.
4
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
7
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
10
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.
11