COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Powell and Senior Judge Coleman
Argued at Richmond, Virginia, and by teleconference
COREY TAYVON SMITH
OPINION BY
v. Record No. 0892-08-2 JUDGE LARRY G. ELDER
OCTOBER 6, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Richard D. Taylor, Jr., Judge
Jessica M. Bulos, Assistant Appellate Defender (Office of the
Appellate Defender, on briefs), for appellant.
Susan M. Harris, Assistant Attorney General (Robert F. McDonnell,
Attorney General; William C. Mims, Attorney General, on briefs),
for appellee.
Corey Tayvon Smith (appellant) appeals from his conviction for possession of a firearm
by a convicted felon, rendered on his conditional guilty plea. On appeal, he contends the trial
court erroneously denied his motion to suppress the fruits of a search of his person following a
traffic stop of the car in which he was a passenger. We hold the evidence, viewed in the light
most favorable to the Commonwealth, fails to support the trial court’s ruling. Thus, we reverse
the challenged conviction and remand for further proceedings consistent with this opinion.
I.
BACKGROUND
On October 18, 2006, Richmond Police Detective Timothy Neville obtained a warrant for
appellant’s arrest for possession of a firearm by a convicted felon, based on an incident that had
occurred that day. Richmond Police Officer Roger Harris arrested appellant on that warrant.
Officer Harris then entered information about appellant’s arrest into the department’s
computerized PISTOL database, after which PISTOL included the alert “probably armed” in
reference to appellant. 1 PISTOL is a computerized system that is maintained by the police
department and is accessible to officers in the field through the computers in their cars.
“[O]fficers who come in contact with people who are probably armed narcotics sellers/users”
may have such information entered into the PISTOL database so that, during a subsequent
encounter with any such person, other officers in the field may consult the database for “officer
safety” purposes.
On June 21, 2007, appellant entered an Alford plea to the charge of possessing a firearm
after having been convicted of a felony, based on the October 18, 2006 offense for which Officer
Harris had entered the information in PISTOL. Appellant also entered an Alford plea to a charge
of possession of cocaine with an intent to distribute, which had an offense date of March 13,
2007. 2 The trial court sentenced appellant to ten years for the cocaine offense and five years for
the firearm offense but suspended all but three months of that time on certain conditions
including supervised probation.
At an unspecified time on September 18, 2007, 3 eleven months after the offense date for
appellant’s firearm possession conviction and six months after the offense date for appellant’s
possession-with-intent-to-distribute conviction, two off-duty police officers, Hedman and Moore,
were working at Hillside Court in south Richmond, a Richmond Redevelopment and Housing
Authority (RRHA) property. Their purpose was to “[e]nforce trespassing [restrictions] in
1
The record does not make clear whether Officer Harris chose to include the alert
“probably armed” or whether it was generated by PISTOL automatically when Officer Harris
entered the information about the firearm arrest.
2
The record contains no information about the events that led to this drug charge.
3
The trial record indicates that the warrant for appellant’s arrest was issued at 10:27 p.m.,
but it does not indicate when the officers first stopped the vehicle in which appellant was riding.
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Hillside.” While on routine patrol there, the officers observed a vehicle with a rear brake light
out, and they activated their emergency equipment and effected a traffic stop of the vehicle. As
part of their duty to prevent trespassing, they obtained identification from the car’s two
occupants, the driver and appellant, who was “the rear seat passenger” and was sitting “behind
the driver’s seat.” The officers determined neither had any outstanding warrants. However,
when Officer Hedman checked the interdepartmental PISTOL system, appellant’s name “came
back with an alert, ‘probably armed and a narcotics seller/user.’” “[O]nce [the officers] saw the
alert for ‘probably armed,’ they immediately addressed that, . . . for officer safety . . . .”
Officer Moore asked appellant to step out of the vehicle, and appellant complied. Officer
Moore then asked appellant “if he had any weapons on him,” and appellant said he did not.
Officer Moore responded, “I’m going to pat you [down] and make sure,” to which appellant
responded, “[Y]ou’re not going to search me.” When Officer Moore began patting appellant
down, he felt a gun in appellant’s left front pocket 4 and asked appellant about it. Appellant first
failed to respond and then said the item was a lighter. Officer Moore then pulled a two-shot
Derringer from appellant’s pocket. At that time, Officer Hedman had not yet determined
whether he would issue the driver a summons for the nonfunctioning brake light and the traffic
stop had not yet been concluded.
Appellant moved to suppress the firearm, arguing information that he had possessed a
firearm eleven months earlier on October 18, 2006, was insufficient to provide reasonable
suspicion to believe he was armed and dangerous at the time of the traffic stop on September 18,
2007. The Commonwealth countered that the officers “should be able to rely on” the
information in “[their] own system . . . when they are out in the field doing their work.” The trial
4
Officer Moore did not testify, but appellant did not object to the admission of this
evidence through the testimony of Officer Hedman.
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court ruled that, given “the officer receiving information with regards to the fact that this person
had been known to carry firearms,” the officer “did not act impermissibly in conducting a pat
down . . . for purposes of the officer’s safety.”
After appellant entered a conditional plea of guilty to the offense and was sentenced, he
noted this appeal. Following briefing and oral argument in this Court, we ordered counsel for
both parties to submit supplemental briefs addressing “the effect, if any,” of the decisions in
Herring v. United States, 555 U.S. ___, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), and Montejo v.
Louisiana, 556 U.S. ___, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009), on the question before the
Court on appeal. Following the filing of those supplemental briefs, both counsel also presented
supplemental oral argument.
II.
ANALYSIS
On appeal of the denial of a motion to suppress, we view the evidence in the light most
favorable to the Commonwealth. Mills v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d
718, 723 (1992). “[W]e are bound by the trial court’s findings of historical fact[, whether
express or implicit,] 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). We review de novo the trial court’s application of defined legal standards such
as whether probable cause or reasonable suspicion supported a seizure or search. Ornelas v.
United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911, 920 (1996).
Under settled constitutional principles, a law enforcement officer may conduct a Terry
investigatory stop of an individual if the officer “reasonably suspects that the person . . . is
committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. ___, ___, 129
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S. Ct. 781, 784, 172 L. Ed. 2d 694, 700 (2009) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968)). Additionally, once the officer has conducted a valid stop, he may frisk
the person for weapons if he “reasonably suspect[s] that the person stopped is armed and
dangerous.” Id. In cases in which the stop is based on reasonable suspicion of a
contemporaneous crime, the nature of the crime suspected may be sufficient to support a
concomitant frisk for weapons. See, e.g., Terry, 392 U.S. at 28, 88 S. Ct. at 1883, 20 L. Ed. 2d at
910 (noting the suspect’s actions “were consistent with [the officer’s] hypothesis that these men
were contemplating a daylight robbery—which, it is reasonable to assume, would be likely to
involve the use of weapons”); Jones v. Commonwealth, 272 Va. 692, 701 n.3, 636 S.E.2d 403,
407 n.3 (2006) (‘“[I] t is reasonable for an officer to believe a person may be armed and
dangerous when the person is suspected of being involved in a drug transaction.’” (quoting
United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005))). In other cases, the basis for
the stop will add little or nothing to the totality-of-the-circumstances analysis required to support
a weapons frisk, and more will be required to provide reasonable suspicion to believe the suspect
may be armed and dangerous. See McCain v. Commonwealth, 275 Va. 546, 554, 659 S.E.2d
512, 517 (2008) (“An officer may not automatically search a driver or his passengers pursuant to
the issuance of a traffic citation . . . , but he may frisk the driver and passengers for weapons if he
develops reasonable suspicion during the traffic . . . stop to believe the particular person to be
frisked is armed and dangerous.”); Harris v. Commonwealth, 262 Va. 407, 417, 551 S.E.2d 606,
611 (2001) (holding that trespassing is “an offense not generally associated with the wrongdoer
being armed”); see also 4 Wayne R. LaFave, Search and Seizure § 9.6(a), at 625-27 (4th ed.
2003) (discussing the types of offenses various jurisdictions have held are likely and unlikely to
give rise to reasonable suspicion for a weapons frisk).
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The United States Supreme Court has concluded that when a law enforcement officer
conducts a Terry stop of a vehicle to investigate a traffic violation, the Fourth Amendment
permits the officer to detain not only the driver but also the passengers for the duration of the
stop, as long as the duration of the stop is reasonable. Brendlin v. California, 551 U.S. 249,
255-58, 127 S. Ct. 2400, 2406-07, 168 L. Ed. 2d 132, 138-40 (2007). Most recently, in Johnson,
555 U.S. ___, 129 S. Ct. 781, 172 L. Ed. 2d 694, the Court has clarified the application of
Terry’s stop-and-frisk principles to traffic stops, holding as follows:
[I]n a traffic-stop setting, the first Terry condition – a lawful
investigatory stop – is met whenever it is lawful for police to
detain an automobile and its occupants pending inquiry into a
vehicular violation. The police need not have, in addition, cause to
believe any occupant of the vehicle is involved in criminal activity.
To justify a pat down of the driver or a passenger during a traffic
stop, however, just as in the case of a pedestrian reasonably
suspected of criminal activity, the police must harbor reasonable
suspicion that the person subjected to the frisk is armed and
dangerous. 5
Id. at ___, 129 S. Ct. at 784, 172 L. Ed. 2d at 700 (footnote added).
5
The Commonwealth contends on brief that the Court also held in Johnson “there were
reasonable grounds to suspect the defendant was armed and dangerous.” As factual support for
this conclusion, the Commonwealth notes the defendant in Johnson “told police he had spent
time in prison for burglary and had been out about a year, wore gang-related garb, mentioned he
was from a city known to police as a home base for the Crips gang, and had a [portable police]
scanner in his pocket.” The United States Supreme Court set out these facts in reciting the
procedural history of the case and later, in its analysis, stated that the officer “surely was not
constitutionally required to give Johnson an opportunity to depart the scene after he exited the
vehicle without first ensuring that, in doing so, she was not permitting a dangerous person to get
behind her.” 555 U.S. at ___, 129 S. Ct. at 788, 172 L. Ed. 2d at 704-05. In a footnote following
that sentence, however, the Court observed (a) that the Arizona Court of Appeals had assumed
without deciding the officer had reasonable suspicion to believe Johnson was armed and
dangerous and (b) that the United States Supreme Court’s decision in Johnson “[did] not
foreclose the appeals court’s consideration of that issue on remand.” Id. at ___ n.2, 129 S. Ct. at
788 n.2, 172 L. Ed. 2d at 705 n.2. Construed together, these statements compel the conclusion
that the Court did not decide whether the facts in that case provided reasonable suspicion to
believe the defendant was armed and dangerous. Although holding the Constitution did not
require the officer to allow Johnson “to depart the scene without ensuring . . . she was not
permitting a dangerous person to get behind her,” id. at ___, 129 S. Ct. at 788, 172 L. Ed. 2d at
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The “authority” to frisk for weapons during a stop must be “narrowly drawn.” Terry, 392
U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.
The officer need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or
that of others was in danger. And in determining whether the
officer acted reasonably in such circumstances, due weight must be
given, not to his inchoate and unparticularized suspicion or
“hunch,” but to the specific reasonable inferences which he is
entitled to draw from the facts in light of his experience.
Id. (citations and footnote omitted); see United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct.
744, 750-51, 151 L. Ed. 2d 740, 749-50 (2002). In assessing the totality of the circumstances
supporting reasonable suspicion,
the police officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion. . . . Anything less would
invite intrusions upon constitutionally guaranteed rights based on
nothing more substantial than inarticulate hunches, a result [the
United States Supreme] Court has consistently refused to sanction.
Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906 (emphasis added); see Arvizu,
534 U.S. at 273, 122 S. Ct. at 750, 151 L. Ed. 2d at 749 (reiterating that the officer must be able
to articulate the “‘particularized and objective basis’” which he believes supports the frisk
(quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629
(1981))).
The officer’s reasonable suspicion must apply to the particular individual to be frisked,
e.g. Michigan v. Summers, 452 U.S. 692, 699 n.9, 101 S. Ct. 2587, 2592 n.9, 69 L. Ed. 2d 340,
347 n.9 (1981) (citing Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979)),
and the officer must reasonably suspect the person is “armed and presently dangerous to the
704-05, the Supreme Court did not decide whether the facts established a reasonable, articulable
suspicion to believe defendant Johnson was such a person.
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officer or to others,” Terry, 392 U.S. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908 (emphasis
added). Circumstances relevant in this analysis include the characteristics of the area
surrounding the stop, the time of the stop, the specific conduct of the suspect individual, whether
a bulge in his clothing suggests the presence of a weapon, the character of the offense under
suspicion, the suspect’s criminal history, if known, and the unique perspective of a police officer
trained and experienced in the detection of crime. See McCain, 275 Va. at 554, 659 S.E.2d at
517; Troncoso v. Commonwealth, 12 Va. App. 942, 945, 947, 407 S.E.2d 349, 350-51 (1991)
(holding the sighting of a large bulge under the clothing of a person stopped for a traffic
infraction, coupled with nervousness, fidgeting, perspiring, and furtive efforts to cover the bulge,
provided reasonable suspicion for a weapons frisk); State v. Valentine, 636 A.2d 505, 510-11
(N.J. 1994) (“[A] police officer’s knowledge of a suspect’s criminal history, especially where
that history involves weapons offenses, is a relevant factor in judging the reasonableness of a
Terry frisk.”).
In sum, “‘[e]ven in high crime areas, where the possibility that any given individual is
armed is significant, Terry requires reasonable, individualized[, articulated] suspicion [that the
individual may be presently armed and dangerous] before a frisk for weapons can be
conducted.’” McCain, 275 Va. at 554, 659 S.E.2d at 517 (quoting Maryland v. Buie, 494 U.S.
325, 334 n.2, 110 S. Ct. 1093, 1098 n.2, 108 L. Ed. 2d 276, 286 n.2 (1990)) (emphasis added);
see Terry, 392 U.S. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908.
Here, the record failed to demonstrate Officers Hedman and Moore had reasonable
suspicion for the frisk based on personal knowledge and contemporaneous observations, and the
Commonwealth does not contend otherwise. The factual basis for the stop was an equipment
violation—a nonfunctioning brake light—committed by the vehicle’s driver. The record
contains no evidence that the stop occurred late at night or even after dark. It also contains no
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evidence concerning the character of the neighborhood, beyond the fact that it was an
RRHA-owned property that sought to avoid problems with trespassers, as demonstrated by the
employment of off-duty police officers to enforce trespassing restrictions. 6 Cf. Harris, 262 Va.
at 417, 551 S.E.2d at 611 (in assessing the reasonableness of a stop and frisk on the premises of a
public housing development where the evidence established a “long-term” “drug elimination
program” was in place, observing this evidence did not indicate whether the program had been
successful or whether the drug problem persisted). Although the officers also wished to
investigate whether appellant and the driver might be trespassing, trespassing is a minor offense,
and the record neither contains evidence nor supports an inference indicating that trespassers in
general, or trespassers on this property in particular, were likely to be armed. See id. Further,
neither appellant nor the driver had any outstanding warrants, and the record gives no indication
the officers saw any signs of weapons, drugs or other contraband on the car’s occupants or in the
vehicle. It also gives no indication that they observed appellant or the driver engage in any
furtive behavior tending to indicate the presence of a weapon or some sort of contraband or other
criminal activity. Finally, appellant was cooperative until he declined Officer Moore’s request to
frisk him and responded negatively to Officer Moore’s statement that he would conduct a frisk
with or without appellant’s consent.
6
The Commonwealth, on brief, cites to an unpublished decision of this Court and a
published decision of a federal district court in support of the assertion that the neighborhood at
issue here “is a high-crime area.” However, the evidence offered in those cases is not evidence
in the present case. Further, those cases involved events that occurred in 2004 and 2005, see
Swann v. City of Richmond, 498 F. Supp. 2d 847 (E.D. Va. 2007); Taylor v. Commonwealth,
No. 0159-06-2 (Va. Ct. App. Feb. 20, 2007), more than two years prior to the events in
appellant’s case, and would not support a finding regarding the character of the neighborhood at
the time of the stop of appellant on September 18, 2007. The Commonwealth conceded in
supplemental oral argument that the record in this case is devoid of evidence that Hillside Court
was “a high crime area” on the date at issue.
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Thus, we examine whether sufficient additional information existed upon which the
officers were entitled to rely to provide reasonable suspicion for a weapons frisk. We conclude
the holding of United States v. Hensley, 469 U.S. 221, 229-33, 105 S. Ct. 675, 681-82, 83
L. Ed. 2d 604, 612-15 (1985), permits imputation of the knowledge of the officers who entered
the information in the police department’s PISTOL system to Officers Hedman and Moore for
purposes of assessing whether they had reasonable suspicion for the frisk. In Hensley, the Court
held that where officers issue a flyer indicating they have reasonable suspicion to stop a suspect,
and other officers, who lack sufficient personal knowledge to provide reasonable suspicion,
“objective[ly] rel[y]” on the flyer to make a stop, the validity of the stop depends upon whether
the officers issuing the flyer in fact had the requisite reasonable suspicion. Id. at 232, 105 S. Ct.
at 682, 83 L. Ed. 2d at 614; see Reed v. Commonwealth, 36 Va. App. 260, 266, 549 S.E.2d 616,
619 (2001) (applying Hensley to hold the arresting officer “was entitled to rely on information
communicated to him by his fellow law enforcement officers”); White v. Commonwealth, 24
Va. App. 234, 240, 481 S.E.2d 486, 489 (approving aggregation of police information under
“collective knowledge” principles), reaching the same result on other grounds, 25 Va. App. 662,
492 S.E.2d 451 (1997) (en banc).
We hold the imputation-of-knowledge principles used in Hensley to determine whether
reasonable suspicion existed for a stop also apply to determining whether an individual, already
being detained in the course of a legitimate stop, may be subjected to a weapons frisk. We also
hold the PISTOL system’s alert listing appellant as “probably armed,” implying justification for
a weapons frisk, is the computer equivalent of the paper flyer in Hensley. See LaFave, supra,
§ 9.5(i), at n.510 (4th ed. Supp. 2008-2009) (“Hensley no doubt applies to transferring of
information by computer, as well, but in such circumstances the officer must act reasonably as to
his interpretation of the [information] received via computer.”); see also Duckett v. United
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States, 886 A.2d 548, 550-52 (D.C. 2005) (implicitly approving an officer’s use of vehicle
registration information obtained from two different computerized databases—the national
“NCIC” database including, inter alia, information about stolen vehicles, and the local police
database, “WALES,” containing vehicle registration data updated on a weekly basis—but
holding the officer could not rely blindly on the results of a search of those databases indicating
they found “NO RECORD” of the specific vehicle information entered for purposes of
establishing reasonable suspicion for a traffic stop). Thus, for purposes of determining whether a
violation of the Fourth Amendment occurred, 7 Officers Hedman and Moore, like the officers in
Hensley, could rise no higher than the facts and circumstances known to the officers who entered
the information into the PISTOL system. Here, like in Hensley, we hold the information proved
to be within the knowledge of the officers performing the PISTOL data entry—coupled with any
personal knowledge Officers Hedman and Moore acquired during the course of the September
18, 2007 traffic stop—was insufficient to provide reasonable suspicion for the frisk.
The information Officer Hedman obtained about appellant from PISTOL was that
appellant was “probably armed and a narcotics seller/user.” The only information in the record
proved to be known by Officer Harris, the person who entered the information leading to the
alert, “probably armed,” was that appellant had been arrested on a warrant for possession of a
firearm by a convicted felon, based on an act of possession that had occurred eleven months prior
to the September 18, 2007 traffic stop. Although the Commonwealth offered evidence at trial
that appellant was convicted for the firearm offense after the information was entered into
PISTOL and before the encounter at issue in this appeal, 8 the record contains no indication that
7
We consider infra at pages 15-21 whether the exclusionary rule or its good faith
exception apply.
8
Appellant entered an Alford plea.
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the fact of appellant’s conviction for the firearm offense was known to the data entry officer or to
the detective who observed the offense and obtained the arrest warrant. It also contains no
indication that appellant’s conviction for the firearm offense had any impact on the alert that had
already been entered in PISTOL. Thus, we consider only the information known to the data
entry officer at the time he entered the information into the database—that appellant had been
arrested on the warrant for the firearm offense, which had occurred eleven months prior to the
traffic stop at issue here.
As to the drug-related portion of the alert, Officers Hedman and Moore did not articulate
any reliance on it in determining whether to frisk appellant. Nevertheless, we assume Officer
Moore considered this part of the alert, as well. We assume further that this part of the alert was
based on appellant’s act of possessing cocaine with an intent to distribute six months prior to the
instant firearm offense and for which appellant was convicted prior to his arrest for the instant
firearm offense. We note, however, that the record fails to indicate who entered the information
about the drug offense or when. In the absence of any such evidence, we can infer at most only
that this information was entered into PISTOL in the same way as the information regarding the
previous incident of firearm possession in October 2006—after appellant’s arrest for the drug
offense but before his conviction.
In sum, the most this record establishes the data entry officers knew was that appellant
had been (1) arrested on a warrant for possession of a firearm by a convicted felon for an act of
possession alleged 9 to have occurred eleven months prior to the instant offense and (2) arrested
for possessing cocaine with an intent to distribute for an act alleged to have occurred six months
prior to the instant offense. The record contains no indication appellant was in possession of a
9
A magistrate had found probable cause to issue the warrant but no conviction had yet
been rendered on the charge.
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firearm on the date of the cocaine possession offense in March 2007 or at any other time after the
date on which he was alleged to have committed the previous firearm possession offense in
October 2006.
Thus, the issue is whether police who encounter a passenger in the course of a routine
traffic stop have reasonable suspicion to believe he may be armed and dangerous when they
learn he has no warrants outstanding but that he was previously arrested on a warrant for
possession of a firearm by a convicted felon based on an act of possession that occurred eleven
months earlier and previously arrested for possessing cocaine with an intent to distribute based
on an act of possession that occurred six months earlier. We hold that, in the absence of some
contemporaneous indication that the individual might be carrying a weapon, these facts do not
provide reasonable suspicion to believe he may be presently armed and dangerous. Absent
additional circumstances, “an officer’s knowledge of a suspect’s criminal history alone is not
sufficient to justify the initial stop of a suspect” or, absent special circumstances such as a
lengthy or closely contemporaneous criminal history, “[sufficient] to justify a frisk of a suspect
once stopped . . . .” Valentine, 636 A.2d at 510-11 (involving prior incident of firearm
possession); United States v. Williams, 962 F.2d 1218, 1223 (6th Cir. 1992) (noting evidence
that a passenger had acted as a drug courier and often carried a weapon “was at le[a]st ten
months old” and thus “was not recent,” but that contemporaneous evidence in the stopped
vehicle—white powder suspected to be cocaine and an empty 9 mm. magazine for a
semi-automatic handgun—coupled with the passenger’s “vehement refusal to allow [the officer]
to touch the purse” provided the requisite reasonable suspicion to “frisk” the purse (emphasis
added)). Prior involvement with guns and drugs is an appropriate factor for consideration in the
totality-of-the-circumstances analysis but is insufficient, standing alone, to provide reasonable
suspicion for a weapons frisk. An adequate temporal or other connection must be shown before
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reasonable suspicion may be found to exist. See Williams, 962 F.2d at 1223; United States v.
Stachowiak, 521 F.3d 852, 856-57 (8th Cir. 2008) (where police stopped the suspect’s car after
observing a traffic infraction and had received information from a reliable confidential informant
two weeks earlier that he had seen appellant with a firearm during the previous month and knew
appellant had been engaging in the armed sales of narcotics regularly for at least six months prior
to that time, the informant’s information was not too stale and, coupled with evidence that the
suspect made a furtive gesture at the time of the stop, provided reasonable suspicion for a
weapons frisk); cf. Johnson v. Commonwealth, 259 Va. 654, 671, 529 S.E.2d 769, 778 (2000)
(“[A] warrant will be tested for ‘staleness’ by considering whether the facts alleged in the
warrant provided probable cause to believe, at the time the search actually was conducted, that
the search conducted pursuant to the warrant would lead to the discovery of evidence of criminal
activity.” (emphasis added)); Sowers v. Commonwealth, 49 Va. App. 588, 601, 643 S.E.2d 506,
512 (2007) (noting “[p]robable cause [for the issuance of a warrant] may be diminished by the
passage of time between when the supporting facts occurred and when the police issue the
affidavit”). Unless the evidence establishes an additional factual basis for believing the suspect
may be presently armed and dangerous—evidence in combination which may include a lengthy
criminal history, habitual involvement with firearms, involvement with drug distribution, furtive
gestures, a suspicious bulge, or something similar, none of which were present here—the officer
lacks reasonable suspicion for a frisk.
Thus, when Officers Hedman and Moore encountered appellant during the course of a
routine traffic stop on an RRHA property, they had no more than an inchoate suspicion or hunch
that appellant might be armed. Here, like in McCain,
such a hunch does not rise to the level of reasonable suspicion.
The officers’ interaction with [appellant] during the traffic stop in
no way supported this hunch, because the officers did not observe
or notice any [weapons,] drugs, odor of drugs, or drug
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paraphernalia in the vehicle. Further, the officers did not notice
any physical or mental impairment that would indicate drug use by
[appellant], and there were no physical or other characteristics
observed by the officers[, such as nervousness, furtive gestures, a
bulge in appellant’s clothing, or a refusal to remove his hands from
his pockets,] that indicated [appellant] might be armed and
dangerous. . . . [Appellant] identified himself when requested, did
not make any furtive movements, and cooperated fully with the
police officers until [Officer Moore] asked permission to do a
pat-down search.
McCain, 275 Va. at 555, 659 S.E.2d at 517. Although appellant, unlike McCain, was known to
the officers to have had a prior arrest on a warrant for possessing a firearm and a separate prior
arrest for possessing cocaine with an intent to distribute, the acts leading to these convictions
occurred, respectively, eleven and six months earlier and provided no more than a hunch that
appellant was engaged in any related illegal activities at the time of the traffic stop. This
evidence, viewed in its totality, failed to provide reasonable suspicion to believe appellant may
have been armed and dangerous. If we were to reach a contrary conclusion in this case, it would
logically follow that an individual arrested for illegally possessing a firearm and possessing
drugs with an intent to distribute would forever thereafter be subject to a weapons frisk if
stopped for a minor traffic infraction, regardless of whether police had any contemporaneous
evidence of ongoing involvement with illegal drugs or weapons.
We hold further that, as appellant avers, the recent decision in Herring, 555 U.S. ___, 129
S. Ct. 695, 172 L. Ed. 2d 496, does not provide an alternate ground for affirming the trial court’s
ruling in this case. 10 In Herring, a majority of the Court, by a vote of five to four, intimated that
10
Based on the recent decision in Whitehead v. Commonwealth, 278 Va. 105, 677 S.E.2d
265, petition for reh’g filed, No. 080775 (July 6, 2009), appellant contends in his supplemental
brief that any consideration of Herring’s ruling concerning application of the exclusionary rule’s
good faith exception as an alternative basis for affirming is procedurally “questionable.” In
Whitehead, the Virginia Supreme Court ruled that “[c]ases in which the party seeking affirmance
failed to present the argument in the trial court, such that the trial court did not have an
opportunity to rule on the argument, are not ‘proper cases’ for the application of the doctrine
[permitting affirmance on alternate grounds].” Id. at 114, 677 S.E.2d at 270. As appellant
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appropriate application of the exclusionary rule might be more limited than previously held.
Herring involved negligent record-keeping regarding the existence of an outstanding warrant in
one jurisdiction, which led to an arrest without probable cause in another jurisdiction. Id. at ___,
129 S. Ct. at 698-99, 172 L. Ed. 2d at 502-03 (“accept[ing] the parties’ assumption that there was
a Fourth Amendment violation”). In holding the good faith exception to the exclusionary rule
applied and that the fruits of the arrest were admissible, the Supreme Court relied on its 1984
decision in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), in
which it first recognized a good faith exception. Herring, 555 U.S. at ___, 129 S. Ct. at 699-702,
172 L. Ed. 2d at 503-07. The Court cited Leon as holding that “[w]hen police act under a
warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the
police acted [in ‘good faith’—] ‘in objectively reasonable reliance’ on the subsequently
invalidated search warrant.” Id. at ___, 129 S. Ct. at 701, 172 L. Ed. 2d at 505 (quoting Leon,
468 U.S. at 922 & n.23, 104 S. Ct. at 3420 & n.23, 82 L. Ed. 2d at 698 & n.23) (emphasis
added). It noted its subsequent extension of the good faith exception to “warrantless
conceded at supplemental oral argument, however, Whitehead is distinguishable from this case
because it involved factual issues on which the trial court had not made findings. We conclude
Whitehead’s rationale prohibits only arguments addressing discrete elements of a crime or
separate doctrines of adjudication that require additional fact-finding. See Brown v.
Commonwealth, 270 Va. 414, 421 n.2, 620 S.E.2d 760, 764 n.2 (2005) (refusing to apply the
doctrine of inevitable discovery as an alternative means of overcoming the lack of probable
cause); Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963) (refusing to apply the
right-result-wrong-reason doctrine because “[t]o do so, we would have to do more than just give
a different but correct reason for affirming” and would instead have to “recognize and uphold a
different defense . . . that is not before us on this appeal”), cited with approval in Whitehead, 278
Va. at 114-15, 677 S.E.2d at 270; see also Driscoll v. Commonwealth, 14 Va. App. 449, 452,
417 S.E.2d 312, 313-14 (1992) (discussing the parameters of the rule as set out in various
Virginia Supreme Court cases). In this case, the prosecutor argued in the trial court that the
“police [department]’s own system” was “inherently [re]liable[e]” and that “they should be able
to rely on [it],” which we hold was sufficient to place the issue of good faith before the trial
court. Further, no additional factual findings are required to permit us to conclude that the
exclusionary rule’s good faith exception is inapplicable in this case. Thus, we conclude
Whitehead does not prevent us from considering this issue.
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administrative searches performed in good-faith reliance on a statute later declared
unconstitutional,” to a warrant that was “invalid because a judge forgot to make ‘clerical
corrections’” to it, and “to police who reasonably relied on mistaken information in a court’s
database that an arrest warrant was outstanding.” Id. at ___, 129 S. Ct. at 698, 701, 172
L. Ed. 2d at 502, 505-06 (emphasis added). It concluded that an error about the existence of an
outstanding warrant in a police database in a different county also was subject to the good faith
exception. Id. In reaching this conclusion, the Court discussed the purpose and applicability of
the exclusionary rule, holding as follows:
Our cases establish that . . . suppression is not an automatic
consequence of a Fourth Amendment violation. Instead, the
question turns on the culpability of the police and the potential of
exclusion to deter wrongful police conduct.
* * * * * * *
To trigger the exclusionary rule, police conduct must be
sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by
the justice system.
Id. at ___, 129 S. Ct. at 698-702, 172 L. Ed. 2d at 502-07. The Court held the error in Herring—
the faulty record-keeping about whether a warrant remained outstanding in one county, which
led to an erroneous arrest in a second county—“was the result of isolated negligence attenuated
from the arrest” and that, “in these circumstances[,] the jury should not be barred from
considering all the evidence.” Id. at ___, 129 S. Ct. at 698, 172 L. Ed. 2d at 502; see also Logan
v. Commonwealth, 53 Va. App. 520, 524-26, 673 S.E.2d 496, 498-99 (2009) (applying Herring’s
exclusionary rule and good faith discussion in the unique context of probation violation
proceedings, in which the exclusionary rule applies “if the defendant proves ‘bad faith on the
part of the police’” (quoting Anderson v. Commonwealth, 251 Va. 437, 440, 470 S.E.2d 862,
863 (1996))). The Court specifically noted that “[t]he Coffee County officers did nothing
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improper. Indeed, the error [in the Dale County database] was noticed so quickly because
Coffee County requested a faxed confirmation of the warrant.” Herring, 555 U.S. at ___, 129
S. Ct. at 700, 172 L. Ed. 2d at 504.
Despite the Court’s language in Herring intimating a narrow application of the
exclusionary rule, it gave no indication that it sanctioned an extension of the good faith exception
beyond the context of Leon, which involved a search conducted pursuant to a subsequently
invalidated warrant, or Herring, which involved the erroneous belief, based on the attenuated
negligence of police in a different county, that an arrest warrant remained outstanding, other than
as previously applied in the unique context of administrative searches performed in good faith
reliance on a statute later declared unconstitutional. Herring, 555 U.S. at ___, 129 S. Ct. at 701,
172 L. Ed. 2d at 505-06 (citing Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 34
(1987)). The Court’s rulings in two other cases—Hensley and Arizona v. Gant, 556 U.S. ___,
129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009)—support the conclusion that the Court did not intend
in Herring to extend the good faith exception to admit the fruits of a warrantless frisk or search
based on the searching police officer’s honest but erroneous belief about what the Fourth
Amendment requires to establish the necessary reasonable suspicion or probable cause.
In Hensley, decided in 1985 just six months after Leon, police made a Terry stop which
the Court held violated the Fourth Amendment. 469 U.S. at 229-30, 105 S. Ct. at 681, 83
L. Ed. 2d at 612-13. The decision in Hensley specifically mentioned that good faith might
insulate the arresting officers from civil suit, but it gave no indication whatsoever that good faith
principles might apply to assessing the Fourth Amendment validity of a warrantless seizure for
purposes of a criminal trial, and it ruled the failure to suppress the evidence was error. Id. at
232, 105 S. Ct. at 682, 83 L. Ed. 2d at 614.
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Similarly, in Gant, decided in April 2009 just three months after Herring, the Court
addressed another case involving wholly warrantless Fourth Amendment activity and held the
search at issue was unconstitutional. In doing so, the Court noted that because a view of the law
contrary to what the Court held in Gant “has been widely accepted, the doctrine of qualified
immunity will shield officers from liability for searches conducted in reasonable reliance on that
understanding.” 556 U.S. at ___ n.11, 129 S. Ct. at 1723 n.11, 173 L. Ed. 2d at 500 n.11.
Nevertheless, just like in Hensley, neither the majority nor the dissent in Gant made any mention
of good faith principles in reference to the criminal trial suppression issue, and the majority
affirmed the lower court’s exclusion of the evidence. Id. at ___ & n.11, 129 S. Ct. at 1723-24 &
n.11, 173 L. Ed. 2d at 501 & n.11; see Guzman v. City of Chicago, 535 F.3d 393, 399 (7th Cir.
2009) (citing Gant as authority that the Court’s decision in Herring does not mean “the
exclusionary rule is necessarily on life support”). In sum, the Court held implicitly that although
the officers conducting the search relied in good faith on existing case law, this reliance did not
excuse the Fourth Amendment violation, and application of the exclusionary rule was justified.
From these rulings, we conclude that, despite the breadth of some of the Court’s language
in Herring, it did not narrow the exclusionary rule beyond the bounds previously defined and that
the good faith exception does not apply to a police officer’s honest but erroneous legal
conclusion that a particular set of facts provides him with the necessary reasonable suspicion or
probable cause for a seizure or search. In deciding Herring, the Court merely discussed the
rationale for the exclusionary rule to determine whether the officers’ mistake about the existence
of a warrant fell more appropriately under general exclusionary rule principles or, instead, under
the rule’s good faith exception as applied to some searches made pursuant to defective warrants.
See also Montejo, 555 U.S. at __, ___, 129 S. Ct. at 2082, 2090, 173 L. Ed. 2d at 960, 968
(discussing the rationale for the exclusionary rule as set out in Herring and concluding that it did
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not justify retention of “the rule . . . in Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1401, 89
L. Ed. 2d 631 (1986), forbidding police to initiate interrogation of a criminal defendant once he
has requested counsel at an arraignment or similar proceeding” because the costs of the rule
outweighed its benefits in light of the related protections provided “[u]nder the
Miranda-Edwards-Minnick line of cases”).
Further, the general exclusionary rule principles set out in Herring support application of
the rule in this case because the officers’ error in frisking appellant did not result from “isolated
negligence attenuated from the arrest,” i.e., faulty record-keeping in a different jurisdiction.
Herring, 555 U.S. at ___, 129 S. Ct. at 698, 699, 172 L. Ed. 2d at 502, 503. Instead, it was
caused by conduct which occurred within a single police department and which was “sufficiently
deliberate that exclusion can meaningfully deter it” and “sufficiently culpable that such
deterrence is worth the price paid by the justice system.” Id. at ___, 129 S. Ct. at 702, 172
L. Ed. 2d at 507; see United States v. Green, No. 1:08-CR-0041, 2009 U.S. Dist. LEXIS 6860, at
*28-29 (M.D. Pa. Jan. 30, 2009) (noting the Supreme Court “clearly restricted the reach of
Herring’s limitation on the exclusionary rule to police misconduct that is ‘attenuated’ from the
arrest” and holding that the conduct of the officers conducting the pat down of Green without
reasonable suspicion, although “nowhere near as culpable as that of Mapp [v. Ohio, 367 U.S.
643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961)],” in which the Court first applied the exclusionary
rule to the states, was conduct “that may still be deterred through application of the exclusionary
rule”).
Here, nothing in the officers’ contemporaneous dealings with appellant, a passenger, in
the course of a routine traffic stop led them to believe he personally was committing or was
about to commit a crime or that he was armed and dangerous, and a warrant check revealed no
outstanding warrants for appellant. Nevertheless, the officers on the scene relied on nonspecific
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information in their PISTOL database indicating that appellant was “probably armed and a
narcotics seller/user.” The record contains nothing showing the entry indicated the source of the
information, any particular event upon which the information was based, or when any such event
had occurred. Absent some contemporaneous corroboration, this information indicated, at most,
that the officers should be especially cautious in their dealings with appellant; without more
contextual information, no reasonable officer could have concluded under the Fourth
Amendment that these facts supported a weapons frisk.
When we impute to Officers Hedman and Moore the information known to the data entry
officers, we reach the same result. The officers who entered the data into PISTOL were not
shown to have done so based on any more information than that appellant had been arrested for
possession of a firearm by a convicted felon for an incident that had occurred eleven months
earlier and possession of cocaine with an intent to distribute for an incident that had occurred six
months earlier. Absent any contemporaneous indication that appellant possessed a weapon or
drugs, this stale arrest information was similarly insufficient to permit a reasonable officer to
conclude a weapons frisk was justified.
Under either informational scenario, the conduct of the officers was “sufficiently
deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence
is worth the price paid by the justice system.” Herring, 555 U.S. at ___, 129 S. Ct. at 702, 172
L. Ed. 2d at 507. To hold that an officer who receives vague information like “probably armed
and a narcotics seller/user” from the PISTOL system is entitled to rely unconditionally on that
information to provide reasonable suspicion for a stop or frisk would encourage negligent
behavior or worse on the part of those designing the database system, those entering the data, or
those relying on it to provide reasonable suspicion or probable cause for police action.
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III.
For these reasons, we hold the trial court erroneously denied appellant’s motion to
suppress the fruits of a search of his person following a traffic stop of the car in which he was a
passenger. Thus, we reverse the challenged conviction and remand for further proceedings
consistent with this opinion.
Reversed and remanded.
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