McCracken v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder,
Annunziata, Bumgardner, Frank, Humphreys, Clements,
Agee, Felton and Kelsey
Argued at Richmond, Virginia

BENJAMIN WAYNE McCRACKEN
OPINION BY
v. Record No. 2912-00-3 JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 26, 2002
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Nicholas E. Persin, Judge

John B. Coleman (Scyphers & Austin, P.C., on
brief), for appellant.

Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

A jury convicted Benjamin Wayne McCracken of possession of

marijuana and two counts of assault and battery of a law

enforcement officer. He contends the trial court erroneously

admitted evidence obtained when a deputy sheriff illegally

entered a home, frisked the defendant, and found marijuana in

his pocket. He maintains he lawfully used reasonable force to

resist his arrest because it was unlawful.

A panel of this court held that the trial court erred in

admitting unlawfully seized marijuana and reversed the

conviction of possession of marijuana. The panel held the
defendant was not entitled to resist his arrest and affirmed the

two convictions for assault and battery of a law enforcement

officer. We granted a petition for rehearing en banc and stayed

the mandate of the panel decision. Upon rehearing en banc, we

affirm the trial court.

On appeal of the denial of a motion to suppress, we view

the evidence in the light most favorable to the Commonwealth.

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," McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc), but we review de novo the

trial court's application of legal standards such as reasonable

suspicion to the particular facts of the case. See Ornelas v.

United States, 517 U.S. 690, 699 (1996).

The defendant and Teresa Fields had lived together for

almost three years in a house owned by Fields. During an

argument, Fields called the 911 emergency dispatcher to have the

defendant removed from her residence. When Deputies Dollar and

Sexton responded to the "domestic disturbance" the couple were

still arguing, but the situation had not escalated to violence.

The defendant agreed to move out of Fields' house, and the

deputies remained for forty-five minutes and helped him remove

his belongings. The defendant went to stay with his mother.

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 After the defendant arrived there, he telephoned Fields,

and the two renewed their argument. When that call ended, the

defendant's mother telephoned Fields and warned her that the

defendant was going to her house. Fields called the 911

emergency dispatcher a second time and reported the defendant

was returning. The dispatcher instructed her to lock her doors

and dispatched Deputies Dollar and Sexton to the "domestic

call."

When Deputy Dollar arrived at Fields' house, the back door

was locked, neighbors were in the front yard screaming, and the

deputy heard Fields and the defendant arguing inside the house.

The front door was partially open, but the screen door was

closed. The deputy drew his weapon, pushed open the screen

door, and entered.

The defendant and Fields were standing four to six feet

apart. The deputy saw nothing in their hands. He holstered his

weapon, but as he looked over the defendant, he noticed a bulge

in his right front pants pocket. He asked the defendant to

place his hands on the wall so he could make sure the defendant

did not have any weapons. The defendant did not comply and kept

moving around the room despite repeated requests to put his

hands on the wall. Finally, the defendant stopped and put his

hands on the back of a love seat.

While the defendant leaned against the love seat, the

deputy patted the defendant's front right pocket and felt a

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hard, rigid object in it. The deputy reached into the pocket

for the hard object, but first uncovered a plastic baggie

containing plant matter, which had been on top of the hard

object. The deputy believed the bag contained marijuana. He

told the defendant he was under arrest for possession of it and

instructed the defendant to put his hands behind his back.

Again the defendant disregarded instructions. He "kept easing

away," and then stated he wanted his Skoal and his gun. The

defendant started toward the kitchen at a fast pace.

Deputy Dollar told the defendant to stop and grabbed hold

of him. The defendant resisted; the two began to scuffle, and

then to fight. During the altercation the defendant kicked the

deputy, struck him in the face, and began choking him with a

headlock hold. At that point, Deputy Sexton arrived. While he

tried to break the defendant's hold on Dollar, the defendant

elbowed Sexton in the ribs. Eventually, the two deputies

subdued the defendant and handcuffed him. 1

Before opening the screen door, the deputy had probable

cause to believe the defendant was trespassing, Code § 18.2-119. 2

1
Later searches revealed a rifle behind the bedroom door,
five feet from the site of the struggle, and a folding knife in
the defendant's right front pants pocket.
2
Code § 18.2-119 provides:

If any person without authority of law goes
upon or remains upon the lands, buildings or
premises of another . . . after having been
forbidden to do so, either orally or in

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The deputies responded to the initial domestic disturbance call

because Teresa Fields wanted the defendant removed from her

house. Fields was the owner of the residence, and she could

properly revoke the defendant's permission to be on the

property. He left voluntarily the first time, but ninety

minutes later he returned to her house causing Fields to place a

second call to the 911 emergency dispatcher. When the deputy

responded, neighbors were screaming, and the deputy heard the

defendant inside arguing with Fields. "In determining whether

probable cause exists courts will test what the totality of the

circumstances meant to police officers trained in analyzing the

observed conduct for purposes of crime control." Hollis v.

Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976).

As a trespasser, defendant had no justifiable expectation

of privacy in Fields' home and therefore no standing to contest

the entry of the house. See Woodson v. Commonwealth, 25

Va. App. 621, 626, 491 S.E.2d 743, 745 (1997) ("We hold that

appellant was not lawfully on the premises and that, as a

trespasser, he lacks the privacy interest necessary to claim a

Fourth Amendment violation."). 3

writing, by the owner, lessee, custodian or
other person lawfully in charge thereof
. . . he shall be guilty of a Class 1
misdemeanor.
3
The deputy was answering a complaint, a call for
assistance from the homeowner, and he was entering the property
of the complainant, not of the defendant. The deputy was not

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 The deputy entered armed with probable cause to believe the

defendant was trespassing. "If an officer has probable cause to

believe that an individual has committed even a very minor

criminal offense in his presence, he may, without violating the

Fourth Amendment, arrest the offender." Atwater v. City of Lago

Vista, 532 U.S. 318, 354 (2001). When an officer has probable

cause to arrest, he may conduct a search prior to the arrest.

Cardwell v. Lewis, 417 U.S. 583, 595 (1974).

The argument between Fields and the defendant could easily

have escalated if the deputy had not acted immediately upon

noticing the bulge in the defendant's pocket. Domestic

disturbances have a low flash point, and "violence may be

lurking and explode with little warning." Fletcher v. Town of

Clinton, 196 F.3d 41, 50 (1st Cir. 1999). 4

making a warrantless arrest of the defendant in his home as in
Payton v. New York, 445 U.S. 573, 574 (1980). Nor was the
homeowner prosecuted with evidence seized in the home while
executing an arrest warrant for someone else as in Steagald v.
United States, 451 U.S. 204, 205 (1981).
4
In recognition of the difficulty of protecting against
domestic violence, the General Assembly increased the duties of
law-enforcement officers when responding to such incidents. See
Code § 19.2-81.3. Police are entitled to arrest without a
warrant though the violation does not occur in their presence.
They must arrest "the primary physical aggressor" if they
develop probable cause unless special circumstances exist. The
police must make a written report of any incident in which they
have probable cause that "family abuse" occurred and written
explanation of the special circumstances if they do not arrest.
Finally, if the officer has probable cause to believe that a
danger of acts of family abuse exists, he "shall seek an
emergency protective order . . . ." "Family abuse" not only
includes violence and force resulting in bodily injury, but it

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 After initially resisting, the defendant placed his hands

on the love seat and permitted the officer to pat down the

defendant's pants pocket. At that point, the deputy was

lawfully taking "such steps as [were] reasonably necessary to

protect [his and others'] personal safety . . . ." United

States v. Hensley, 469 U.S. 221, 235 (1985). The marijuana

found in the course of that lawful search was properly admitted

in evidence.

While a person is entitled to use reasonable force to

resist an unlawful arrest, he is not entitled to resist a lawful

arrest. Brown v. Commonwealth, 27 Va. App. 111, 116-17, 497

S.E.2d 527, 529-30 (1998). The deputies arrested on probable

cause to believe the defendant was trespassing and possessed

marijuana, thus the defendant had no right to resist this lawful

arrest.

A lawful arrest, when made with unlawful force, may be

resisted. Palmer v. Commonwealth, 143 Va. 592, 602-03, 130 S.E.

398, 401 (1925); Foote v. Commonwealth, 11 Va. App. 61, 66, 396

S.E.2d 851, 856 (1990). "[A]n arrest utilizing excessive force

is a battery because that touching is not justified or excused

and therefore is unlawful." Gnadt v. Commonwealth, 27 Va. App.

148, 151, 497 S.E.2d 887, 888 (1998). The officers in this case

also includes a threat that places one in reasonable
apprehension of bodily injury. See Code § 16.1-228.

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used reasonable force to subdue the defendant when he refused to

submit. The deputies did not use excessive force by ratcheting

the force employed when nothing less brought the defendant under

control. The defendant was not entitled to resist his lawful

arrest made with lawful force.

We conclude the conduct of the deputy sheriffs in

responding to this series of events was reasonable under the

totality of the circumstances. Accordingly, we affirm.

Affirmed.

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Benton, J., dissenting.

I.

The evidence proved that Benjamin McCracken and Teresa

Fields lived together in the house for nearly three years.

Fields testified that on April 8, 2000, McCracken was asleep

when she began cleaning the house. After the cleaning noise

awakened McCracken, Fields and McCracken argued. Fields

testified that she "had an excruciating headache, . . . was ill,

irritable." When she became tired of arguing, she called the

police dispatcher, who sent two officers to the residence at

midday in response to Fields' telephone call. One of the

officers testified that they responded to a complaint of "verbal

arguing." No evidence indicates Fields told the dispatcher or

the officers she wanted the officers to remove McCracken from

the house.

When the police arrived, McCracken was putting various

personal possessions in his car. Fields and McCracken explained

that "they'd had [a] verbal argument and that [there] had been

no assault." When asked if he was able to calm the situation,

the officer responded, "It seemed to have been not very

escalated." The officers remained while McCracken gathered some

of his personal possessions and put them in his car. One

officer described the situation as "very peaceful" and said they

helped McCracken load some of his possessions. The other

officer testified that McCracken was "very friendly, [that

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McCracken] agreed to leave, and [that] there were no problems

whatsoever." Fields testified that she and McCracken declined

"to fill out any type of papers to keep each other away" and

said "there was no purpose for that."

McCracken went to his mother's residence with some of his

personal possessions and later telephoned Fields. During that

conversation, McCracken and Fields were both agitated.

McCracken's mother later telephoned Fields to inform her that

McCracken was returning to collect more of his personal

possessions. Before McCracken arrived at the residence, Fields

telephoned the police dispatcher and requested that the officers

return to her home. Fields testified that she "overreacted" and

telephoned for the officers to return because she had to go to

work. She expected to be late arriving at work and did not want

to be further delayed by an argument with McCracken. She

testified that when McCracken arrived he told her "he was there

to pick up some of his belongings."

The officers returned to the residence about an hour and a

half after they had left the residence. The first officer to

arrive testified that before entering the residence, he heard

neighbors hollering something to him. Fields' sister testified

that, when she saw the officer having difficulty opening the

screen door, she called to him that "the front door drags." The

officer testified that he heard Fields and McCracken "verbally

arguing back and forth when he walked up on the porch." Fields

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testified, however, that she was talking to McCracken and that

they were not arguing. The officer drew his weapon and walked

into the house without knocking.

II.

McCracken contends the officers had neither probable cause

to believe a crime was being committed nor exigent circumstances

to justify their entry. The Commonwealth responds the "officers

had probable cause at the time of their warrantless entry to

believe that cognizable exigent circumstances were present"

because of a "domestic" dispute.

The United States Supreme Court has held that, "absent

probable cause and exigent circumstances, warrantless [entries

and] arrests in the home are prohibited by the Fourth

Amendment." Welsh v. Wisconsin, 466 U.S. 740, 741 (1984);

Payton v. New York, 445 U.S. 573, 590 (1980). "[W]arrantless

entries into dwellings, followed by searches, seizures, and

arrests therein . . . are presumed to be unreasonable, in Fourth

Amendment terms, casting upon the police a heavy burden of

proving justification by exigent circumstances." Verez v.

Commonwealth, 230 Va. 405, 410, 337 S.E.2d 749, 752-53 (1985);

Welsh, 446 U.S. at 750. Furthermore, "[e]xigent circumstances

justify a warrantless entry . . . only when the police have

probable cause to obtain a search warrant." Alexander v.

Commonwealth, 19 Va. App. 671, 674, 454 S.E.2d 39, 41 (1995).

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 The trial judge found that the officers acted reasonably in

entering the residence and denied the motion to suppress. His

findings included the following:

There is no question or at least I haven't
heard any evidence that would cause the
Court to believe that the first call was not
made by her complaining about the conduct of
[McCracken]. The officers responded. When
they got there, evidently a reasonable
inference would be that . . . Fields and
[McCracken] had come to some sort of
agreement. The officers testified that
there was no fighting or arguing, that he
was in the process of removing his property.
He was cooperative, he was loading his
vehicle, his personal items, some of his
stereo equipment. The officers even
assisted him. So there is no evidence of
any ill feeling or ill will from the first
call. But the fact remains that . . .
Fields called for help the first time. . . .
Shortly thereafter, an hour or hour and a
half later, a second call comes in. And the
evidence is unrebutted that [McCracken] is
back on her property where he was living
with her. And the Jury has heard evidence
that there was screaming on the outside, one
of the officers heard it, the other one
didn't. Officer Sexton says he didn't. And
when they go inside of the house, the Court
is of the opinion that that was reasonable.
I mean, here you had a second call where the
officers thought [McCracken] was leaving and
was cooperative and left. Now he's back on
the scene. And the owner of the property is
calling the officers again for assistance.
They respond. They come in, they observe,
they know there's been prior problems.

We have held that a call to the police dispatcher for

assistance does not, without more, give rise to probable cause

to believe a crime is occurring. Id. at 674-75, 454 S.E.2d at

41. The evidence proved that when the police arrived in

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response to the first call from Fields, McCracken had made no

threats. Indeed, Fields had not even expressed fear of

McCracken when she first called the police dispatcher. She

testified that when the dispatcher specifically "asked [her] if

[McCracken] was hitting [her] or being physical," she "told him

no, that it was just verbal." Although McCracken and Fields had

had an argument, the officers testified that matters were

peaceful and non-threatening.

The evidence also proved that when Fields called the police

on the second occasion, McCracken had not arrived. Fields knew

the police dispatcher and told him "that [her problem with

McCracken] was just verbal." She testified that she reported no

crime, that she expected no trouble from McCracken, and that she

wanted the officers there because she had to go to work and did

not want to be delayed by an argument with McCracken. Thus, she

had not given the police dispatcher or the officers any basis to

believe McCracken would do anything other than continue to

gather his property. "Probable cause for police officers to

enter a person's [residence] must be based on more than

speculation, suspicion, or surmise that a crime might be in

progress." Id. at 674, 454 S.E.2d at 41. The officers could

not reasonably infer from either their first visit to the house

or the call to return to the house that when McCracken returned

to remove more of his property he either posed any threat to

Fields or would commit a crime. Simply put, this evidence

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failed to prove the officer had probable cause to believe a

crime had been or was being committed when he made the

warrantless entry into the home.

Although the majority contends that McCracken had committed

a trespass and had no expectation of privacy in the residence,

no evidence supports that hypothesis. The Commonwealth never

suggested at trial that McCracken committed a trespass or lacked

standing. Moreover, the trial judge made no finding that

McCracken committed a trespass or lacked standing. Indeed,

prior to this hearing en banc, the Commonwealth never argued

trespass or the lack of standing. I substantially agree,

therefore, with the discussion in Part I(A) of Judge Elder's

concurring and dissenting opinion that we have no basis to

consider, in the first instance, these issues on appeal.

In addition, the evidence proved that when the prosecutor

asked Fields, "who actually owns the home where this incident

took place?," Fields responded, "My father. He give it to me

and my [minor] daughter." Although the evidence did not

indicate whether Fields and McCracken paid rent to Fields'

father, the evidence also did not prove McCracken had been

barred by anyone from entering the house. Significantly, Fields

did not testify that she had barred McCracken from returning to

the house. Instead, she testified she told the dispatcher, whom

she knew, that McCracken had never physically abused her, and

she further testified she wanted the police there solely to

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prevent another argument which would delay her departure to

work. Indeed, when McCracken initially left with some of his

possessions, Fields told the officers it was not necessary for

her "to fill out any type of papers to keep each other away from

each other." The trial judge specifically found that Fields and

McCracken "had come to some sort of agreement" before the

officers initially arrived and before McCracken went to his

mother's residence. Thus, the evidence proved that when

McCracken returned to the house in which he had lived for three

years, he had not been barred from the premises, and he used his

key to enter the house to gather his possessions. The

assertions of trespass and lack of standing at this stage of the

proceedings are an after the fact rationale unfounded by the

evidence.

The principle is well established that "no amount of

probable cause can justify a warrantless [entry into a home]

. . . absent 'exigent circumstances.'" Coolidge v. New

Hampshire, 403 U.S. 443, 468 (1971); Payton, 445 U.S. at 590.

"Before agents of the government may invade the sanctity of the

home, the burden is on the government to demonstrate exigent

circumstances that overcome the presumption of unreasonableness

that attaches to all warrantless home entries." Welsh, 466 U.S.

at 750. The evidence proved that McCracken had never physically

abused Fields and that she had no fear of him. Moreover, Fields

did not tell the police dispatcher McCracken had threatened her.

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She testified she has known the dispatcher "for years" and told

the dispatcher her only concern was the arguments. She merely

wanted someone there to prevent another argument. Although the

trial judge could believe the officer's testimony that he heard

argument and disbelieve Fields' testimony that she and McCracken

were not arguing, the mere occurrence of an argument is not

indicative of a threat to life or serious injury. The officer

had no other basis to believe an emergency existed. Indeed, the

officers earlier had witnessed McCracken's conduct at the home

and testified that the situation was "peaceful."

As in Shannon v. Commonwealth, 18 Va. App. 31, 34, 441

S.E.2d 225, 226, aff'd on reh'g en banc, 19 Va. App. 145, 449

S.E.2d 584 (1994), and Alexander, this evidence contains no

basis upon which the police officers could have concluded that

an emergency existed. Thus, the Commonwealth failed to meet its

"heavy burden" of proving exigent circumstances existed

justifying the warrantless entry. Alexander, 19 Va. App. at

674, 454 S.E.2d at 41.

III.

"At the very core [of the Fourth Amendment] stands the

right of a [person] to retreat into his [or her] own home and

there be free from unreasonable governmental intrusion."

Silverman v. United States, 365 U.S. 505, 511 (1961). "It is

axiomatic that the 'physical entry of the home is the chief evil

against which the wording of the Fourth Amendment is directed.'"

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Welsh, 466 U.S. at 748 (citation omitted). "In terms that apply

equally to seizures of property and to seizures of persons, the

Fourth Amendment has drawn a firm line at the entrance to the

house." Payton, 445 U.S. at 590. Thus, the Supreme Court has

reiterated that it "held in Payton . . . that a suspect should

not be arrested in his house without an arrest warrant, even

though there is probable cause to arrest him." Minnesota v.

Olson, 495 U.S. 91, 95 (1990).

Unlike in United States v. Moore, 483 F.2d 1361, 1364 (9th

Cir. 1973), where "[t]he warrantless arrest was . . . lawful, in

itself," id. at 1364, here it was not. The officer's

warrantless entry to McCracken's residence presumptively was

constitutionally unlawful, Payton, 445 U.S. at 586, and could

not support an arrest even upon probable cause. See Olson and

Payton. See also Horton v. California, 496 U.S. 128, 137 n.7

(1990). The principle is well established and long standing

that an unlawful, warrantless entry by a police officer into a

residence renders void the power to arrest even if probable

cause arises upon a discovery inside the residence after the

unlawful entry. Johnson v. United States, 333 U.S. 10, 15-17

(1948); Welsh, 466 U.S. at 748-50; Payton, 445 U.S. at 588-90.

See also Jefferson v. Commonwealth, 27 Va. App. 1, 18, 497

S.E.2d 474, 482-83 (1998) (holding that the "arrest of appellant

. . . executed after the officer entered the curtilage of

appellant's home without a warrant . . . violated the Fourth

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Amendment"). The purpose of these decisions, holding the

arrests to be void, is "to protect [the] home from entry."

Olson, 495 U.S. at 95.

An officer gaining access to private living
quarters under color of his office and of
the law which he personifies must then have
some valid basis in law for the intrusion.
Any other rule would undermine "the right of
the people to be secure in their persons,
houses, papers, and effects," and would
obliterate one of the most fundamental
distinctions between our form of government,
where officers are under the law, and the
police-state where they are the law.

Johnson, 333 U.S. at 17 (footnote omitted).

"It has long been held in Virginia that where an officer

attempts an unlawful arrest, the officer is an aggressor which

gives the arrestee the right to use self-defense to resist so

long as the force used is reasonable." Brown v. Commonwealth,

27 Va. App. 111, 116-17, 497 S.E.2d 527, 530 (1998). This

principle of law treats the unlawful arrest as an unauthorized

touching and, thus, a battery against the attempted arrestee.

The Supreme Court, therefore, has held that where an officer

attempts an unlawful arrest, the arrestee "could resist with

such reasonable force as was necessary to repel that being

exercised by the officer in that undertaking." Broaddus v.

Standard Drug Co., 211 Va. 645, 652, 179 S.E.2d 497, 503 (1971).

Thus, for example, in further contrast to Moore, where the Ninth

Circuit indicated an arrestee may only resist unlawful arrests

that are the result of "bad faith, unreasonable force, or

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provocative conduct on the part of the arresting officer,"

Moore, 483 F.2d at 1365, Virginia decisions hold that even if a

police officer acts in "good faith" an arrestee may still resist

an unlawful arrest. Brown, 27 Va. App. at 118, 497 S.E.2d at

530.

The evidence proved that McCracken initially resisted being

searched and then attempted to maneuver his way around the

officer after the officer sought to arrest him. Because the

attempt to search and arrest McCracken was made after the

officer had unlawfully entered the home without a warrant,

McCracken had a right to use reasonable force to resist any of

the officer's conduct. The encounter escalated to a physical

altercation only when the officer jumped onto McCracken's back.

The events that gave rise to the search and arrest all

occurred within the home, after the officers had unlawfully

entered the home and upon the officer's discovery of evidence

within the home during that unlawful entry. This is precisely

the circumstance the Supreme Court's decision in Payton barred

by holding that "'physical entry of the home is the chief evil

against which the wording of the Fourth Amendment is directed.'"

445 U.S. at 585 (citation omitted). The rule in Payton was

derived from the "overriding respect for the sanctity of the

home that has been embedded in our traditions since the origins

of the Republic." Id. at 601. By drawing a line at the

entrance to a home, the Fourth Amendment protects the physical

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integrity of the home. As the Court noted in Johnson, "officers

. . . thrust[ing] themselves into a home is . . . a grave

concern not only to the individual but to a society which

chooses to dwell in reasonable security and freedom from

surveillance." 333 U.S. at 14. Based on the unlawful entry,

McCracken was not unreasonable in his attempt to resist the

unlawful arrest and did not use excessive force in resisting.

IV.

For these reasons, I would hold that the officer's

warrantless entry into the residence violated the Fourth

Amendment. The officer's unlawful entry negated his authority

to search McCracken and make an arrest for events occurring

inside the home. 5 Therefore, I would reverse all the convictions

and dismiss the indictments. See Alexander, 19 Va. App. at 675,

454 S.E.2d at 41.

5
Although I would hold that the officer's warrantless entry
was presumptively unlawful and negated his power to arrest, I
agree with the portion of Part I(B) of Judge Elder's concurring
and dissenting opinion which indicates that the circumstances
did not provide the officer with a reasonable, articulable
suspicion that McCracken was armed and dangerous. "An officer
may not, simply by observing some item causing a 'bulge' in
one's clothing, conduct a general frisk where the nature of the
bulge or the surrounding circumstances do not reasonably support
the conclusion that . . . the person is armed and dangerous."
Stanley v. Commonwealth, 16 Va. App. 873, 877, 433 S.E.2d 512,
515 (1993). As we noted in Stanley, these facts would
impermissibly sanction an officer "in patting down anyone who
happened to be carrying a checkbook or wallet in his pants
pocket." 16 Va. App. at 877, 433 S.E.2d at 515.

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Elder, J., concurring, in part, in the judgment and dissenting,
in part.

For the reasons that follow, I concur in the majority's

affirmance of appellant's two convictions for assault and

battery on a law enforcement officer but dissent from its

affirmance of his conviction for marijuana possession. I

substantially concur in the majority's recitation of the

relevant facts.

I.

A.

TRESPASS

The majority concludes the search of appellant was valid as

incident to arrest because Deputy Dollar had probable cause to

arrest for trespass before he conducted the search. I recognize

the principle that an appellate court may affirm the judgment of

the trial court when it has reached the right result for the

wrong reason. See, e.g., Driscoll v. Commonwealth, 14 Va. App.

449, 452, 417 S.E.2d 312, 313 (1992). However, this principle

requires that both "the correct reason and its factual basis

were presented at trial." McLellan v. Commonwealth, 37 Va. App.

144, 155, 554 S.E.2d 699, 704 (2001). Because the existence of

probable cause to arrest for trespass or any other crime was not

raised at trial as a basis for justifying Deputy Dollar's search

of appellant and because no challenge was made to appellant's

standing to contest Deputy Dollar's entry, I would hold that

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neither of these grounds may serve as the basis for this Court's

affirmance of appellant's convictions.

In the trial court, the Commonwealth argued that the deputy

had a right

to do a frisk search . . . to protect
himself because . . . he didn't know what he
was looking at coming in on that second
call. And once he found an object in the
pocket, he had the right to take that object
out and that turned out to be the marijuana.
It's a valid frisk, it's a valid arrest
. . . .

Appellant argued the police lacked probable cause to enter and

also lacked the articulable suspicion necessary to justify a

weapons frisk. The trial court ruled that, based on the events

occurring during the deputies' first and second trips to the

residence, they had the right to "do[] a pat down to ensure

their own safety." The court expressly found that Teresa Fields

was the owner of the house, a subsidiary factual finding

relevant to the issue of whether a trespass occurred. However,

neither party mentioned whether appellant was a trespasser or

had standing to contest Deputy Dollar's entry of the residence,

and the trial court gave no indication that it considered these

issues or made any of the additional factual findings critical

to their resolution.

Thus, I would hold that neither the existence of probable

cause to arrest appellant for trespassing nor his alleged lack

of standing to contest Deputy Dollar's entry of the residence,

- 22 -
provides a valid basis for affirming appellant's convictions and

would consider only the arguments advanced in the trial court.

Based on these arguments, for the reasons that follow, I would

reverse appellant's conviction for marijuana possession and

affirm his convictions for assault and battery on a law

enforcement officer.

B.

WEAPONS FRISK

In order for an officer to conduct a weapons frisk, two

conditions must exist. First, the officer must rightly be in

the presence of the party frisked so as to be endangered if the

person is armed. See, e.g., 4 Wayne R. LaFave, Search and

Seizure § 9.5, at 246 (3d ed. 1996). Second, the officer must

be able to point to "'specific and articulable facts'" "which

reasonably lead[] him to conclude, in light of his experience,

. . . that the suspect 'may be armed and presently dangerous.'"

Lansdown v. Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110

(1983) (quoting Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S. Ct.

1868, 1880, 1884, 20 L. Ed. 2d 889 (1968)).

In assessing whether a particular person may be armed and

dangerous, an officer may consider "characteristics of the area

surrounding the stop, the time of the stop, the specific conduct

of the suspect individual, the character of the offense under

suspicion, and the unique perspective of a police officer

trained and experienced in the detection of crime." Christian

- 23 -
v. Commonwealth, 33 Va. App. 704, 714, 536 S.E.2d 477, 482

(2000) (en banc) (footnote omitted). "An officer may not,

simply by observing some item causing a 'bulge' in one's

clothing, conduct a general frisk where the nature of the bulge

or the surrounding circumstances do not reasonably support the

conclusion that . . . the person is armed and dangerous."

Stanley v. Commonwealth, 16 Va. App. 873, 877, 433 S.E.2d 512,

515 (1993); see also United States v. Wilson, 953 F.2d 116, 125

(4th Cir. 1991) (holding that, absent additional evidence,

seeing "a bulge [in clothing of person at airport] is not the

sort of observation that has any significance"). Compare

Stanley, 16 Va. App. at 876, 433 S.E.2d at 514 (holding the

Fourth Amendment "does not legitimize a patdown search of

someone stopped for a routine traffic offense simply because he

is carrying an item the size and configuration of a wallet or

checkbook in his front pants pocket"), with Troncoso v.

Commonwealth, 12 Va. App. 942, 945, 407 S.E.2d 349, 350-51

(1991) (holding that if bulge observed in stomach area of driver

during routine traffic stop is accompanied by fidgeting,

nervousness, and effort to conceal bulge, officer's belief that

subject may be armed and dangerous is reasonable).

Here, Deputy Dollar responded to Fields' second 911 call

and entered her residence through an unlocked door only after he

encountered neighbors in the front yard yelling and heard

arguing inside the residence. Thus, Deputy Dollar was rightly

- 24 -
in appellant's presence. Nevertheless, the evidence did not

provide Deputy Dollar with reasonable, articulable suspicion to

conclude that the object in appellant's pocket may have been a

weapon. Although Deputy Dollar was responding to a 911

"domestic call" at Fields' residence for the second time that

day, the first call involved only "verbal arguing," was "not

very escalated," and resolved peacefully with no indication that

either party possessed a weapon or was predisposed to use

violence toward the other or toward the deputies. When Deputy

Dollar returned the second time, neighbors were in the front

yard yelling, and Dollar heard the parties inside "verbally

arguing back and forth" while he stood on the front porch, but

Dollar did not testify that he overheard either party threaten

the other or that he heard anything indicating physical violence

or abuse.

When Dollar entered unannounced, he immediately saw Fields

and appellant standing at least four feet apart, he noticed

nothing unusual about Fields' appearance, and he saw nothing in

either party's hands. Although he noticed appellant's right

front pocket was "bulging" and concluded that appellant had

"something" inside his pocket, Dollar articulated no specific

basis for believing that "something" might be a weapon. Before

Deputy Dollar attempted to frisk appellant for weapons,

appellant engaged in no additional behavior and made no

- 25 -
statements tending to indicate that he was armed and presently

posed a danger to Fields or Deputy Dollar.

Thus, I would conclude Deputy Dollar lacked reasonable

articulable suspicion to believe appellant was both armed and

presently dangerous when Dollar told appellant he intended to

frisk appellant for weapons. I recognize that domestic disputes

often are fraught with danger for both their participants and

the law enforcement officers trying to diffuse them. See, e.g.,

Fletcher v. Town of Clinton, 196 F.3d 41, 50 (1st Cir. 1999)

(noting that in domestic disputes, "violence may be lurking and

explode with little warning"). Nevertheless, I am unwilling to

hold that an officer responding to a verbal domestic dispute may

frisk a party to the dispute solely because that party has an

unidentified "bulge" in his pocket. Accordingly, I would hold

that Deputy Dollar's frisk of appellant and search of his pocket

were unreasonable and that the fruits of that search should have

been suppressed. Because no evidence other than the illegally

seized marijuana supported appellant's conviction for marijuana

possession, I would reverse that conviction and dismiss the

underlying charge.

C.

ASSAULT AND BATTERY ON A LAW ENFORCEMENT OFFICER

"An unlawful arrest or an arrest utilizing excessive force

is a battery because that touching is not justified or excused

and therefore is unlawful." Gnadt v. Commonwealth, 27 Va. App.

- 26 -
148, 151, 497 S.E.2d 887, 888 (1998). In either case, the

arrestee may use reasonable force to resist the arrest. See

Palmer v. Commonwealth, 143 Va. 592, 602-03, 130 S.E. 398, 401

(1925); Foote v. Commonwealth, 11 Va. App. 61, 69, 396 S.E.2d

851, 856 (1990). Here, I would hold appellant was not entitled

to use reasonable force to resist his arrest because the arrest

was not unlawful in the sense required to permit him to resist

the arrest, and I concur in the majority's conclusion that the

officers used no more force than was necessary to effect the

arrest.

"In Virginia, . . . [t]he lawfulness of an attempted arrest

[for purposes of assessing an arrestee's right to resist the

arrest] is determined by [Code §§ 19.2-77, 19.2-81, and

19.2-100]." Brown v. Commonwealth, 27 Va. App. 111, 116, 497

S.E.2d 527, 530 (1998); see also Johnson v. United States, 333

U.S. 10, 15 & n.5, 68 S. Ct. 367, 370 & n.5, 92 L. Ed. 436, 441

& n.5 (1948) (in reviewing reasonableness of search claimed

constitutional as incident to arrest, holding state law

"determine[s] whether the arrest itself was lawful"). Code

§ 19.2-81, the statute applicable here, provides in pertinent

part that a sheriff's deputy "may arrest, without a warrant, any

person who commits any crime in the presence of the officer and

any person whom he has reasonable grounds or probable cause to

suspect of having committed a felony not in his presence."

Thus, "[t]he dispositive question is whether the officers had

- 27 -
probable cause to arrest . . . ." Smith v. Commonwealth, 30

Va. App. 737, 740, 519 S.E.2d 831, 832 (1999).

No Virginia appellate decision holds that an arrest is

unlawful for purposes of entitling the arrestee to resist the

arrest simply because the evidence which provides probable cause

for the arrest is obtained in a search or seizure that is

unreasonable under the Fourth Amendment. Cf. Commonwealth v.

Hill, 264 Va. ___, ___, 570 S.E.2d 805, ___ (Nov. 1, 2002) (in

holding no right exists to resist an unlawful detention without

revisiting the continuing validity of the right to resist an

unlawful arrest, noting that "'"[c]lose questions as to whether

an officer possesses articulable suspicion must be resolved in

the courtroom and not fought out on the streets"'" (quoting

State v. Wiegmann, 714 A.2d 841, 849-50 (Md. 1998) (quoting

State v. Blackman, 617 A.2d 619, 630 (Md. Ct. Spec. App.

1992)))). Further, the Ninth Circuit Court of Appeals has held

that an arrest flowing from an unreasonable search which yields

marijuana is not "unlawful" in the sense required to permit the

arrestee to resist. United States v. Moore, 483 F.2d 1361,

1364-65 (9th Cir. 1973). As that court explained,

[t]he privilege [to resist] is available
only if the arrest was "unlawful." The
parties agree that appellant was arrested
after the agents discovered the marihuana in
his suitcase [while conducting an
unreasonable search]. The agents then had
probable cause to believe that a felony was
being committed in their presence. The
warrantless arrest was therefore lawful, in

- 28 -
 itself. It was "unlawful" only in the
exclusionary-rule sense that it was "fruit"
of the prior unlawful search. We have been
cited no authority, and have found none,
that permits resistance to an arrest that is
unlawful only in this derivative sense.

Id. (emphasis added).

The court in Moore examined "[t]he purposes of the

privilege [to resist an unlawful arrest]," which it cited as

"deter[ring] abuses of police authority" and "preserv[ing] the

sense of personal liberty and integrity . . . by protecting from

punishment persons who reasonably resist unlawful intrusions by

government agents." Id. at 1365. It concluded that "the

resolution of often difficult issues relating to the lawfulness

of the search [upon which the challenged arrest was based] are

surely best left to subsequent court proceedings." Id.; see

also Hill, 264 Va. at ___, 570 S.E.2d at ___. As a result, the

court was "unwilling," under the facts of that case, "to

initiate . . . an extension of the privilege [to resist]" an

arrest that was unlawful only in a "derivative sense." 6 Moore,

483 F.2d at 1365.

6
The court indicated in Moore that it might be willing to
extend the right to resist an arrest supported by probable cause
if the arrestee "claim[ed] . . . bad faith, unreasonable force,
or provocative conduct on the part of the arresting officer."
473 F.2d at 1365; see also United States v. Span, 970 F.2d 573,
579-80 (9th Cir. 1992).
Assuming that whether the officer acted in bad faith would
be relevant under Virginia law, see Brown, 27 Va. App. at 116,
497 S.E.2d at 530 (holding that where officer makes arrest
without valid warrant or probable cause, arrest is unlawful and
whether officer acted in good faith is irrelevant to arrestee's

- 29 -
 Similarly, in appellant's case, the arrest was unlawful

only in a "derivative sense." Id. Assuming the entry and the

weapons frisk violated the Fourth Amendment's prohibition

against unreasonable searches and seizures, the evidence

establishes that "appellant was arrested after [Deputy Dollar]

discovered the mari[j]uana in his [pocket]. [Deputy Dollar]

then had probable cause to believe that a [crime] was being

committed in [his] presence. The warrantless arrest was

therefore lawful, in itself," even if unlawful in a "derivative

sense." Id. at 1364-65; see Code § 19.2-81. Assuming without

deciding that appellant would have been privileged to use

reasonable force to resist the entry or the weapons frisk or

both, but see Hill, 264 Va. at ___, 570 S.E.2d at ___, appellant

lost the privilege to resist his subsequent arrest once Deputy

Dollar discovered marijuana in his possession, even if Dollar's

right to resist that unlawful arrest); Foote, 11 Va. App. at 67,
396 S.E.2d at 855 (holding that where officer makes arrest based
on radio transmission regarding existence of charges against
particular person in another jurisdiction but does not obtain
name or reasonably accurate description of person to confirm
arrestee is the person wanted, arrest is unlawful and whether
officer acted in good faith is irrelevant to arrestee's right to
resist that unlawful arrest), no evidence established that
Deputy Dollar acted in bad faith. As counsel for appellant
conceded in argument, "I don't need to come in here to Court and
say, bad cop, bad cop, [I] don't believe that. The simple fact
is these two officers have nine months of experience between
them. . . . I think what happened was, adrenalin[e] took over,
. . . and the Fourth Amendment went out the window."
Further, as discussed in the majority opinion, Virginia law
recognizes a right to resist an arrest involving excessive
force, and this right did not apply under the facts of this
case.

- 30 -
discovery of the marijuana resulted from an unreasonable entry

and search.

- 31 -
 II.

In sum, I would hold that, although Deputy Dollar was

rightly in appellant's presence, the weapons frisk violated the

Fourth Amendment because the presence of a bulge in appellant's

pocket was insufficient under the facts of this case to provide

reasonable suspicion that appellant was armed and dangerous.

However, I would also hold that appellant had no right to resist

his arrest for possession of marijuana. Thus, I concur in the

majority's affirmance of appellant's two convictions for assault

and battery of a law enforcement officer but dissent from its

affirmance of the conviction for marijuana possession.

- 32 -
 Wednesday 12th

June, 2002.

Benjamin Wayne McCracken, Appellant,

against Record No. 2912-00-3
Circuit Court Nos. CR00-259, CR00-260 and
CR00-262

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On May 28, 2002 came the appellant, by court-appointed

counsel, and filed a petition praying that the Court set aside

the judgment rendered herein on May 14, 2002, and grant a

rehearing en banc thereof.

On consideration whereof, the petition for rehearing en

banc is granted, the mandate entered herein on May 14, 2002 is

stayed pending the decision of the Court en banc, and the appeal

is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule

5A:35. The appellant shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously
rendered by the Court in this matter. It is further ordered that

the

appellant shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.

A Copy,

- 33 -
 Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

- 34 -
 COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia

BENJAMIN WAYNE McCRACKEN
MEMORANDUM OPINION * BY
v. Record No. 2912-00-3 JUDGE LARRY G. ELDER
MAY 14, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Nicholas E. Persin, Judge

John B. Coleman (Scyphers & Austin, P.C., on
brief), for appellant.

Virginia B. Theisen, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.

Benjamin Wayne McCracken (appellant) appeals from his jury

trial convictions for marijuana possession and two counts of

assault and battery on a law enforcement officer. On appeal, he

contends the trial court erroneously denied his motion to

suppress because the officer's warrantless entry and weapons

frisk violated the Fourth Amendment proscription against
unreasonable searches and seizures. As a result, appellant

argues, his arrest for marijuana possession was unlawful.

Because the arrest was unlawful and because the officers used

excessive force in effecting the arrest, he contends, he was

entitled to use reasonable force to resist.

We hold in Part II.A. that the trial court erred in refusing

to suppress the marijuana discovered in the weapons frisk and to

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.

- 35 -
dismiss the marijuana possession charge. However, we hold in

Part II.B. that appellant was not entitled to resist the

warrantless arrest, which was based on probable cause and met the

requirements of Code § 19.2-81. Thus, we reverse and dismiss

appellant's conviction for marijuana possession and affirm his

two convictions for assault and battery on a law enforcement

officer. 7

I.

BACKGROUND
As of April 8, 2000, appellant and Teresa Fields were

romantically involved and had resided together in Fields'

residence for about two-and-one-half years. That morning, Fields

and appellant had an argument, and around noon, Fields called 911

to have appellant removed from her residence. Uniformed

Sheriff's Deputies Resinol L. Dollar, Jr., and Jason D. Sexton

responded to the "[911] domestic disturbance call at Teresa

Fields' residence." Upon their arrival, the deputies heard

"verbal arguing." Appellant was "irritable," but "[t]here was no

violent confrontation[]," and Deputy Dollar said the situation

"seemed to have been not very escalated." Appellant "agreed to

leave" and go stay with his mother. The deputies supervised

appellant's collection of his belongings, and they told Fields to

7
For the reasons set out in his attached opinion, Judge
Benton "substantially concur[s]" in both the reasoning and
result of Part II.A., which reverses and dismisses appellant's
conviction for marijuana possession. Judge Bumgardner concurs
in the result of Part II.B., which affirms appellant's
convictions for assault and battery. Thus, the marijuana
possession conviction is reversed and dismissed by Judges Elder
and Benton, with Judge Bumgardner dissenting, and the assault
and battery convictions are affirmed by Judges Elder and

- 36 -
call them "if [she] had anymore trouble." After forty-five

minutes to an hour, appellant and the deputies departed.

After appellant arrived at his mother's residence, appellant

telephoned Fields. During that conversation, appellant and

Fields were "still agitated," "upset" and "very angry." Shortly

after the conversation ended, appellant's mother called Fields to

tell her that appellant was on his way back to Fields' residence.

Fields then called 911 a second time and told the dispatcher that

appellant was on his way back to her house. The dispatcher told

her to "lock [her] doors," and he notified Deputies Dollar and

Sexton to return to Fields' residence on a "domestic call."
When Deputy Dollar arrived, he found neighbors in the front

yard "screaming" and "hollering," and he also "could hear [Fields

and appellant inside the house] verbally arguing back and forth."

Knowing that Fields had "called [the 911 dispatcher] for

assistance," Deputy Dollar drew his weapon, pointed it at the

ground, and entered the residence, without knocking, through the

closed screen and partially open "main door."

Upon entering, Dollar saw Fields and appellant standing four

to six feet apart. Dollar noticed nothing odd about Fields'

condition or appearance. Appellant had nothing in his hands, but

Dollar saw a bulge in appellant's right front pants pocket, and

he asked appellant to place his hands on the wall so that Dollar

could "make sure [appellant] didn't have any weapons." Appellant

kept moving away from Dollar but finally put his hands on the

back of a love seat.

Bumgardner, with Judge Benton dissenting.

- 37 -
 While appellant leaned on the love seat, Dollar put one of

his hands in the center of appellant's back, holstered his weapon

and patted the bulge in appellant's pocket. The bulge was "a

hard rigid object." When Dollar attempted to retrieve the

object, he instead pulled out a baggie containing 2.1 grams of

marijuana which had been on top of the hard object, and he asked

appellant what he had found. Appellant "was becoming very

agitated" and "jerked away" from Dollar, and Dollar was unable to

"retrieve the rigid object out of [appellant's] pocket after

that."
Dollar told appellant he was under arrest for marijuana

possession, but appellant resisted Dollar's instructions to put

his hands behind his back. Appellant "kept easing away" and told

Dollar he was "just there to get some more of his belongings,"

including "his gun." Appellant then "started going from the

living room to the kitchen at a real quick pace, going toward the

back of the house."

Deputy Dollar told appellant to stop, "[got] ahold of

[appellant]" from behind and "[tried] to subdue him." Appellant

resisted, despite Dollar's verbal instructions. Dollar then used

his baton, striking appellant on the thigh and leg, but appellant

"was still fighting and kicking and trying to push off the wall

back toward [Dollar]." Deputy Dollar then slipped while still

holding onto appellant's waist, and appellant "struck [him]

across the face when [Deputy Dollar] fell." Appellant put Dollar

"in a sort of choking headlock" which covered Dollar's nose and

mouth. Dollar was unable to breathe and "was getting very

concerned for [his] safety."

- 38 -
 About that time, Deputy Sexton arrived and saw appellant and

Deputy Dollar on the floor of the kitchen. When Sexton attempted

to get appellant to release his hold on Deputy Dollar, appellant

"threw his left elbow back and struck [Sexton] in the ribs."

Sexton then sprayed appellant with pepper spray in an effort to

get appellant to release Deputy Dollar. Appellant, recognizing

Sexton was a law enforcement officer, said, "'That tear gas ain't

shit, cop,' and then he returned his attention to Deputy Dollar."

Deputy Dollar managed to grab one of appellant's arms.

While Deputy Sexton held appellant's other arm, appellant kicked

the right side of Sexton's face and his right knee. Appellant

was "doing his best to keep Deputy Dollar from [handcuffing]

him," but the deputies finally succeeded and transported him to

the jail.
A search of Fields' residence revealed a rifle belonging to

appellant was behind the door of the bedroom located five feet

from the site in the kitchen where the struggle took place. A

search of appellant at the jail revealed a folding knife in his

right front pocket, the same pocket in which Deputy Dollar had

felt the hard object and from which he had recovered the baggie

of marijuana.

II.

ANALYSIS

A.

WEAPONS FRISK

Appellant contends that the trial court erroneously denied

his motion to suppress the marijuana because both Dollar's second

entry of Fields' residence and his frisk of appellant for weapons

- 39 -
were unreasonable. Assuming, for purposes of analyzing the

frisk, that Deputy Dollar's second entry of Fields' residence was

reasonable, we nevertheless hold that the frisk violated the

Fourth Amendment because Dollar lacked reasonable suspicion to

believe appellant was armed and dangerous.

On appeal of the denial of a motion to suppress, we view the

evidence in the light most favorable to the Commonwealth.

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," McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc), but we review de novo the trial

court's application of legal standards such as reasonable

suspicion to the particular facts of the case, see Ornelas v.

United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134

L. Ed. 2d 911 (1996).

In order for an officer to conduct a weapons frisk, two

conditions must exist. First, the officer must rightly be in the

presence of the party frisked so as to be endangered if the

person is armed. See, e.g., 4 Wayne R. LaFave, Search and

Seizure § 9.5, at 246 (3d ed. 1996). Second, the officer must be

able to point to "'specific and articulable facts'" "which

reasonably lead[] him to conclude, in light of his experience,

. . . that the suspect 'may be armed and presently dangerous.'"

Lansdown v. Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110

(1983) (quoting Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S. Ct.

1868, 1880, 1884, 20 L. Ed. 2d 889 (1968)).

- 40 -
 In assessing whether a particular person may be armed and

dangerous, an officer may consider "characteristics of the area

surrounding the stop, the time of the stop, the specific conduct

of the suspect individual, the character of the offense under

suspicion, and the unique perspective of a police officer trained

and experienced in the detection of crime." Christian v.

Commonwealth, 33 Va. App. 704, 714, 536 S.E.2d 477, 482 (2000)

(en banc) (footnote omitted). "An officer may not, simply by

observing some item causing a 'bulge' in one's clothing, conduct

a general frisk where the nature of the bulge or the surrounding

circumstances do not reasonably support the conclusion that . . .

the person is armed and dangerous." Stanley v. Commonwealth, 16

Va. App. 873, 877, 433 S.E.2d 512, 515 (1993); see also United

States v. Wilson, 953 F.2d 116, 125 (4th Cir. 1991) (holding

that, absent additional evidence, seeing "a bulge [in clothing of

person at airport] is not the sort of observation that has any

significance"). Compare Stanley, 16 Va. App. at 876, 433 S.E.2d

at 514 (holding the Fourth Amendment "does not legitimize a

patdown search of someone stopped for a routine traffic offense

simply because he is carrying an item the size and configuration

of a wallet or checkbook in his front pants pocket"), with
Troncoso v. Commonwealth, 12 Va. App. 942, 945, 407 S.E.2d 349,

350-51 (1991) (holding that if bulge observed in stomach area of

driver during routine traffic stop is accompanied by fidgeting,

nervousness, and effort to conceal bulge, officer's belief that

subject may be armed and dangerous is reasonable).

Here, assuming without deciding that Deputy Dollar was

rightly in the presence of appellant when he entered Fields'

- 41 -
residence in response to her second 911 call, the evidence did

not provide Deputy Dollar with reasonable, articulable suspicion

to conclude that the object in appellant's pocket may have been a

weapon. Although Deputy Dollar was responding to a 911 "domestic

call" at Fields' residence for the second time that day, the

first call involved only "verbal arguing," was "not very

escalated," and resolved peacefully with no indication that

either party possessed a weapon or was predisposed to use

violence toward the other or toward the deputies. When Deputy

Dollar returned the second time, neighbors were in the front

yard yelling, and Dollar heard the parties inside "verbally

arguing back and forth" while he stood on the front porch, but

Dollar did not testify that he overheard either party threaten

the other or that he heard anything indicating physical violence

or abuse.
When Dollar entered unannounced, he immediately saw Fields

and appellant standing at least four feet apart, he noticed

nothing unusual about Fields' appearance, and he saw nothing in

either party's hands. Although he noticed appellant's right

front pocket was "bulging" and concluded that appellant had

"something" inside his pocket, Dollar articulated no specific

basis for believing that "something" might be a weapon. Before

Deputy Dollar attempted to frisk appellant for weapons, appellant

engaged in no additional behavior and made no statements tending

to indicate that he was armed and presently posed a danger to

Fields or Deputy Dollar.

Thus, we conclude Deputy Dollar lacked reasonable

articulable suspicion to believe appellant was both armed and

- 42 -
presently dangerous when Dollar told appellant he intended to

frisk appellant for weapons. We recognize that domestic disputes

often are fraught with danger for both their participants and the

law enforcement officers trying to diffuse them. See, e.g.,

Fletcher v. Town of Clinton, 196 F.3d 41, 50 (1st Cir. 1999)

(noting that in domestic disputes, "violence may be lurking and

explode with little warning"). Nevertheless, we are unwilling to

hold that an officer responding to a verbal domestic dispute may

frisk a party to the dispute solely because that party has an

unidentified "bulge" in his pocket. Accordingly, we hold that

Deputy Dollar's frisk of appellant and search of his pocket were

unreasonable and that the fruits of that search should have been

suppressed. Because no evidence other than the illegally seized

marijuana supported appellant's conviction for marijuana

possession, we reverse that conviction and dismiss the underlying

charge.
B.

ASSAULT AND BATTERY ON A LAW ENFORCEMENT OFFICER 8
"An unlawful arrest or an arrest utilizing excessive force

is a battery because that touching is not justified or excused

8
Part II.B. represents the opinion only of Judge Elder.
Judge Bumgardner concurs only in the resulting affirmance of the
assault and battery convictions.

- 43 -
and therefore is unlawful." Gnadt v. Commonwealth, 27 Va. App.

148, 151, 497 S.E.2d 887, 888 (1998). In either case, the

arrestee may use reasonable force to resist the arrest. See

Palmer v. Commonwealth, 143 Va. 592, 602-03, 130 S.E. 398, 401

(1925); Foote v. Commonwealth, 11 Va. App. 61, 69, 396 S.E.2d

851, 856 (1990). Here, appellant was not entitled to use

reasonable force to resist his arrest (1) because the arrest was

not unlawful in the sense required to permit him to resist the

arrest and (2) because the evidence, viewed in the light most

favorable to the Commonwealth, establishes that the officers used

no more force than was necessary to effect that arrest.
1. Lawfulness of Arrest

"In Virginia, . . . [t]he lawfulness of an attempted arrest

[for purposes of assessing an arrestee's right to resist the

arrest] is determined by [Code §§ 19.2-77, 19.2-81, and

19.2-100]." Brown v. Commonwealth, 27 Va. App. 111, 116, 497

S.E.2d 527, 530 (1998); see also Johnson v. United States, 333

U.S. 10, 15 & n.5, 68 S. Ct. 367, 370 & n.5, 92 L. Ed. 436, 441 &

n.5 (1948) (in reviewing reasonableness of search claimed

constitutional as incident to arrest, holding state law

"determine[s] whether the arrest itself was lawful"). Code

§ 19.2-81, the statute applicable here, provides in pertinent

part that a sheriff's deputy "may arrest, without a warrant, any

person who commits any crime in the presence of the officer and

any person whom he has reasonable grounds or probable cause to

suspect of having committed a felony not in his presence." Thus,

"[t]he dispositive question is whether the officers had probable

- 44 -
cause to arrest . . . ." Smith v. Commonwealth, 30 Va. App. 737,

740, 519 S.E.2d 831, 832 (1999).

No Virginia appellate decision holds that an arrest is

unlawful for purposes of entitling the arrestee to resist the

arrest simply because the evidence which provides probable cause

for the arrest is obtained in a search or seizure that is

unreasonable under the Fourth Amendment. Cf. Hill v.

Commonwealth, 37 Va. App. 1, 553 S.E.2d 529 (2001) (holding

detention not based on reasonable suspicion or probable cause was

illegal and detainee was entitled to use reasonable force to

resist). Further, the Ninth Circuit Court of Appeals has held

that an arrest flowing from an unreasonable search which yields

marijuana is not "unlawful" in the sense required to permit the
arrestee to resist. United States v. Moore, 483 F.2d 1361,

1364-65 (9th Cir. 1973). As that Court explained,

[t]he privilege [to resist] is available only
if the arrest was "unlawful." The parties
agree that appellant was arrested after the
agents discovered the marihuana in his
suitcase [while conducting an unreasonable
search]. The agents then had probable cause
to believe that a felony was being committed
in their presence. The warrantless arrest
was therefore lawful, in itself. It was
"unlawful" only in the exclusionary-rule
sense that it was "fruit" of the prior
unlawful search. We have been cited no
authority, and have found none,

- 45 -
 that permits resistance to an arrest that is
unlawful only in this derivative sense.

Id. (emphasis added).

The Court in Moore examined "[t]he purposes of the privilege

[to resist an unlawful arrest]," which it cited as "deter[ring]

abuses of police authority" and "preserv[ing] the sense of

personal liberty and integrity . . . by protecting from

punishment persons who reasonably resist unlawful intrusions by

government agents." Id. at 1365. It concluded that "the

resolution of often difficult issues relating to the lawfulness

of the search [upon which the challenged arrest was based] are

surely best left to subsequent court proceedings." Id. As a

result, the Court was "unwilling," under the facts of that case,

"to initiate . . . an extension of the privilege [to resist]" an

arrest that was unlawful only in a "derivative sense." 9 Id.

Similarly, in appellant's case, the arrest was unlawful only

in a "derivative sense." Id. Assuming the entry and the weapons

9
The Court indicated in Moore that it might be willing to
extend the right to resist an arrest supported by probable cause
if the arrestee "claim[ed] . . . bad faith, unreasonable force,
or provocative conduct on the part of the arresting officer."
473 F.2d at 1365; see also United States v. Span, 970 F.2d 573,
579-80 (9th Cir. 1992).
Assuming that whether the officer acted in bad faith is
relevant under Virginia law, see Brown, 27 Va. App. at 116, 497
S.E.2d at 530; Foote, 11 Va. App. at 67, 396 S.E.2d at 855, no
evidence established that Deputy Dollar acted in bad faith. As
counsel for appellant conceded in argument, "I don't need to come
in here to Court and say, bad cop, bad cop, [I] don't believe
that. The simple fact is these two officers have nine months of
experience between them. . . . I think what happened was,
adrenalin[e] took over, . . . and the Fourth Amendment went out
the window."

Further, as discussed infra in the text, Virginia law
recognizes a right to resist an arrest involving excessive force,
and this right did not apply under the facts of this case.

- 46 -
frisk violated the Fourth Amendment's prohibition against

unreasonable searches and seizures, the evidence establishes that

"appellant was arrested after [Deputy Dollar] discovered the

mari[j]uana in his [pocket]. [Deputy Dollar] then had probable

cause to believe that a [crime] was being committed in [his]

presence. The warrantless arrest was therefore lawful, in

itself," even if unlawful in a "derivative sense." Id. at

1364-65; see Code § 19.2-81. Assuming without deciding that

appellant would have been privileged to use reasonable force to

resist the entry or the weapons frisk or both, see Hill, 37 Va.
App. at 6-7, 553 S.E.2d at 532, appellant lost the privilege to

resist his subsequent arrest once Deputy Dollar discovered

marijuana in his possession, even if Dollar's discovery of the

marijuana resulted from an unreasonable entry and search.

2. Force Used to Effect the Arrest

"[W]hen an officer attempts to arrest a person charged with

a felony and uses more force than is reasonably necessary to make

the arrest, the officer himself becomes a wrongdoer and the

person whose arrest is sought, if himself without fault, can

resist such excessive force . . . ." Palmer, 143 Va. at 602-03,

130 S.E. at 401. Whether the force used is reasonable is a mixed

question of law and fact. See Brown, 27 Va. App. at 117, 497

S.E.2d at 530. In reviewing the factual predicate for the trial

court's ruling, we view the evidence in the light most favorable

to the Commonwealth. See Smith, 30 Va. App. at 740, 519 S.E.2d

at 832.

None of Deputy Dollar's or Deputy Sexton's actions

constituted excessive force in light of appellant's attempts to

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resist. Fields testified that Deputy Dollar pushed appellant's

head into a window unnecessarily while frisking appellant for

weapons. However, the fact finder was entitled to reject Fields'

explanation as to how the window was broken and to conclude that

the damage occurred either prior to Dollar's encounter with

appellant or, if during the encounter, in an accidental fashion.

Further, even accepting Fields' testimony as to what occurred

during the weapons frisk, Fields admitted that appellant refused

to comply with Deputy Dollar's request to him to remain still

during the frisk, permitting the inference that Dollar was simply

attempting to maintain control of appellant and did not use

unreasonable force in doing so. Finally, Deputy Dollar's use of

force during the weapons frisk did not entitle appellant to

resist the subsequent arrest for marijuana possession by

assaulting and battering the deputies. Assuming without deciding

appellant was entitled to resist the frisk because it was not

supported by reasonable suspicion, see Hill, 37 Va. App. at 6-7,
553 S.E.2d at 532, the arrest itself was based on probable cause

resulting from Dollar's discovery of the marijuana.

When Deputy Dollar told appellant he was placing appellant

under arrest, appellant refused to submit to Deputy Dollar's

authority. Instead, appellant said he was "just there to get

some more of his belongings," including "his gun," and he walked

to the back of the house "at a real quick pace." When Deputy

Dollar "[got] ahold of [appellant]" from behind, appellant

refused to cooperate, despite Dollar's verbal instructions and

efforts to subdue appellant physically. Only then did Dollar use

his baton, striking appellant on the thigh and leg, but appellant

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"was still fighting and kicking." When Deputy Dollar slipped,

appellant struck him across the face and placed him in a "choking

headlock" which restricted Dollar's ability to breathe.

Dollar was very concerned for his safety at that time, as

was Deputy Sexton when he entered the kitchen and found appellant

had Deputy Dollar in a headlock. As Deputy Sexton attempted to

assist Dollar, appellant struck Sexton in the ribs. Sexton then

sprayed appellant with pepper spray in an effort to get appellant

to release Dollar. Appellant, clearly recognizing Sexton as a

law enforcement officer, said, "That tear gas ain't shit, cop,"

and continued to resist. When Dollar managed to wriggle free and

the deputies tried again to subdue appellant, appellant kicked

Sexton in the face and knee. Thus, the evidence supported a

finding that, by that point in the altercation, appellant had

assaulted and battered both deputies, who had exercised only as

much force as was necessary to subdue appellant and take him into

custody.
Because the deputies did not use excessive force to arrest

and subdue appellant, the amount of force they did use did not

entitle appellant to resist.

III.

For these reasons, we hold the weapons frisk violated the

Fourth Amendment because the presence of a bulge in appellant's

pocket was insufficient under the facts of this case to provide

reasonable suspicion that appellant was armed and dangerous.

However, appellant had no right to resist his arrest for

possession of marijuana. Thus, we reverse and dismiss the

- 49 -
marijuana possession conviction and affirm the two convictions

for assault and battery of a law enforcement officer.

Affirmed, in part,
and reversed and dismissed, in part.

- 50 -
Benton, J., concurring, in part, and dissenting, in part.

I substantially concur in Parts I. and II.A. and, therefore,

I concur in reversing the conviction for possession of marijuana

and dismissing the underlying charge. I do not join in the

remainder of the opinion. For the reasons that follow, I would

also reverse and dismiss the assault and battery convictions.

I.

The evidence proved that Benjamin McCracken and Teresa

Fields lived together for nearly three years in a house Fields'

father owned. Fields testified that she and McCracken argued

about noise she made while cleaning the house and that she called

the police because she "had an excruciating headache, . . .

was ill, irritable" and tired of arguing. Midday, on April 8,

2000, two officers went to the residence in response to Fields'

telephone call. One of the officers testified that they

responded to a complaint of "verbal arguing." No other evidence

proved that Fields told the police anything else during her

initial telephone call.
When the police arrived, McCracken was putting various

personal items in his car. Fields and McCracken explained that

"they'd had [a] verbal argument and that [there] had been no

assault." When asked if he was able to calm the situation, the

officer responded, "It seemed to have been not very escalated."

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The officers remained while McCracken gathered some of his

personal belongings and put them in his car. One officer

described the situation as "very peaceful" and said they helped

McCracken load some of his items. The other officer testified

that McCracken was "very friendly, he agreed to leave, and there

were no problems whatsoever." Fields testified that she and

McCracken declined "to fill out any type of papers to keep each

other away" and said "there was no purpose for that."

McCracken went to his mother's residence and later

telephoned Fields. During that conversation, McCracken and

Fields were both agitated. McCracken's mother then telephoned

Fields to inform her that McCracken was returning to collect more

of his belongings. Before McCracken arrived at the residence,

Fields telephoned the police dispatcher and requested that the

officers return to her home. The officers received the second

call about an hour and a half after they had left the residence.

Fields testified that she wanted the officers to return because

she had to go to work and did not want to be delayed by an

argument with McCracken.
The first officer to arrive testified that before entering

the residence, he heard neighbors hollering something to him.

Fields' sister testified that when she saw the officer having

difficulty opening the screen door, she called to him that "the

front door drags." The officer testified that he heard Fields

and McCracken "verbally arguing back and forth when he walked up

on the porch." Fields testified, however, that she was talking

to McCracken and that they were not arguing. The officer drew

his weapon and walked into the house without knocking.
 II.

McCracken contends the officers did not have either probable

cause to believe a crime was being committed or exigent

circumstances to justify their entry. The Commonwealth responds

the "officers had probable cause at the time of their warrantless

entry to believe that cognizable exigent circumstances were

present."

The United States Supreme Court has held that, "absent

probable cause and exigent circumstances, warrantless [entries

and] arrests in the home are prohibited by the Fourth Amendment."

Welsh v. Wisconsin, 466 U.S. 740, 741 (1984); Payton v. New York,

445 U.S. 573, 590 (1980). "[W]arrantless entries into dwellings,

followed by searches, seizures, and arrests therein . . . are

presumed to be unreasonable, in Fourth Amendment terms, casting

upon the police a heavy burden of proving justification by

exigent circumstances." Verez v. Commonwealth, 230 Va. 405, 410,

337 S.E.2d 749, 752-53 (1985); Welsh, 446 U.S. at 750.

Furthermore, "[e]xigent circumstances justify a warrantless entry

. . . only when the police have probable cause to obtain a search

warrant." Alexander v. Commonwealth, 19 Va. App. 671, 674, 454

S.E.2d 39, 41 (1995).

- 53 -
 The trial judge found that the officers acted reasonably in

entering the residence and denied the motion to suppress. His

findings included the following:

There is no question or at least I haven't
heard any evidence that would cause the
Court to believe that the first call was not
made by her complaining about the conduct of
[McCracken]. The officers responded. When
they got there, evidently a reasonable
inference would be that . . . Fields and
[McCracken] had come to some sort of
agreement. The officers testified that
there was no fighting or arguing, that he
was in the process of removing his property.
He was cooperative, he was loading his
vehicle, his personal items, some of his
stereo equipment. The officers even
assisted him. So there is no evidence of
any ill feeling or ill will from the first
call. But the fact remains that . . .
Fields called for help the first time. . . .
Shortly thereafter, an hour or hour and a
half later, a second call comes in. And the
evidence is unrebutted that [McCracken] is
back on her property where he was living
with her. And the Jury has heard evidence
that there was screaming on the outside, one
of the officers heard it, the other one
didn't. Officer Sexton says he didn't. And
when they go inside of the house, the Court
is of the opinion that that was reasonable.
I mean, here you had a second call where the
officers thought [McCracken] was leaving and
was cooperative and left. Now he's back on
the scene. And the owner of the property is
calling the officers again for assistance.
They respond. They come in, they observe,
they know there's been prior problems.

We have held that a call to the police dispatcher for

assistance does not, without more, give rise to probable cause to

believe a crime is occurring. Id. at 674-75, 454 S.E.2d at 41.

Indeed, the evidence proved that when Fields called the police on

the second occasion, McCracken had not arrived. Fields knew the
- 54 -
police dispatcher and told him "that [her problem with McCracken]

was just verbal." She testified that she reported no crime, that

she expected no trouble from McCracken, and that she wanted the

officers there because she had to go to work and did not want to

be delayed by an argument with McCracken. Thus, she had not

given the police dispatcher or the officers any basis to believe

McCracken would do anything other than continue to gather his

property. "Probable cause for police officers to enter a

person's [residence] must be based on more than speculation,

suspicion, or surmise that a crime might be in progress." Id.

The evidence also proved that when the police arrived in

response to the first call from Fields, McCracken had made no

threats. Although he and Fields had had an argument, the

officers testified that matters were peaceful and non-

threatening. The evidence proved Fields had not even expressed

fear of McCracken when she first called the police. Thus, the

officers could not reasonably infer from their first visit to the

house or the call before their second visit to the house that

when McCracken returned to remove more of his property he either

posed any threat to Fields or would commit a crime. Simply put,

this evidence failed to prove the officer had probable cause to

believe a crime had been or was being committed when he made the

warrentless entry into the home.

In addition, the principle is well established that "no

amount of probable cause can justify a warrantless [entry into a

home] . . . absent 'exigent circumstances.'" Coolidge v. New

Hampshire, 403 U.S. 443, 468 (1971); Payton, 445 U.S. at 590.

"Before agents of the government may invade the sanctity of the

- 55 -
home, the burden is on the government to demonstrate exigent

circumstances that overcome the presumption of unreasonableness

that attaches to all warrantless home entries." Welsh, 466 U.S.

at 750. The evidence proved that McCracken had never physically

abused Fields and that she had no fear of him. Moreover, Fields

did not tell the police dispatcher McCracken had threatened her.

She testified she has known the dispatcher "for years" and told

him her only concern was the arguments. She merely wanted

someone there to prevent another argument. Although the trial

judge could believe the officer's testimony that he heard

argument and disbelieve Fields' testimony that she and McCracken

were not arguing, the mere occurrence of an argument is not

indicative of a threat to life or serious injury. The officer

had no other basis to believe an emergency existed. As in
Shannon v. Commonwealth, 18 Va. App. 31, 34, 441 S.E.2d 225, 226,

aff'd on reh'g en banc, 19 Va. App. 145, 449 S.E.2d 584 (1994),

and Alexander, this evidence contains no basis upon which the

police officers could have concluded that an emergency existed.

Thus, the Commonwealth failed to meet its "heavy burden" of

proving exigent circumstances existed justifying the warrantless

entry. Alexander, 19 Va. App. at 674, 454 S.E.2d at 41.

III.

"At the very core [of the Fourth Amendment] stands the right

of a [person] to retreat into his [or her] own home and there be

free from unreasonable governmental intrusion." Silverman v.

United States, 365 U.S. 505, 511 (1961). "It is axiomatic that

the 'physical entry of the home is the chief evil against which

the wording of the Fourth Amendment is directed.'" Welsh, 466

- 56 -
U.S. at 748 (citation omitted). "In terms that apply equally to

seizures of property and to seizures of persons, the Fourth

Amendment has drawn a firm line at the entrance to the house."

Payton, 445 U.S. at 589-90. Thus, the Supreme Court has

reiterated that it "held in Payton . . . that a suspect should

not be arrested in his house without an arrest warrant, even

though there is probable cause to arrest him." Minnesota v.

Olson, 495 U.S. 91, 95 (1990).

Indeed, the principle is well established and long standing

that an unlawful, warrantless entry by a police officer into a

residence renders void an arrest which is founded upon a

discovery inside the residence after the unlawful entry. Johnson

v. United States, 333 U.S. 10, 15-17 (1948); see also Welsh, 466

U.S. at 748-50; Payton, 445 U.S. at 588-90; Jefferson v.

Commonwealth, 27 Va. App. 1, 18, 497 S.E.2d 474, 482-83 (1998)

(holding that the "arrest of appellant . . . executed after the

officer entered the curtilage of appellant's home without a

warrant . . . violated the Fourth Amendment"). The purpose of

these decisions, holding the arrests to be void, is "to protect

[the] home from entry." Olson, 495 U.S. at 95.

An officer gaining access to private living
quarters under color of his office and of
the law which he personifies must then have
some valid basis in law for the intrusion.
Any other rule would undermine "the right of
the people to be secure in their persons,
houses, papers, and effects," and would
obliterate one of the most fundamental
distinctions between our form of government,
where officers are under the law, and the
police-state where they are the law.

Johnson, 333 U.S. at 17 (footnote omitted).

- 57 -
 "It has long been held in Virginia that where an officer

attempts an unlawful arrest, the officer is an aggressor which

gives the arrestee the right to use self-defense to resist so

long as the force used is reasonable." See Brown v.

Commonwealth, 27 Va. App. 111, 116-17, 497 S.E.2d 527, 530

(1998). This principle of law treats the unlawful arrest as an

unauthorized touching and, thus, a battery against the attempted

arrestee. Thus, the Supreme Court has held that where an officer

attempts an unlawful arrest, the arrestee "could resist with such

reasonable force as was necessary to repel that being exercised

by the officer in that undertaking." Broaddus v. Standard Drug

Co., 211 Va. 645, 652, 179 S.E.2d 497, 503 (1971).

The evidence proved that McCracken initially resisted being

searched and then attempted to maneuver his way around the

officer after the officer sought to arrest him. Because the

arrest of McCracken was made after the police had unlawfully

entered the home without a warrant, McCracken had a right to use

reasonable force to resist any of the officer's conduct. The

encounter escalated to a physical altercation only when the

officer jumped onto McCracken's back. See Hill v. Commonwealth,

37 Va. App. 1, 7, 533 S.E.2d 529, 532 (2001) (holding that

striking an officer after being assaulted by the officer during

an unlawful arrest was not excessive force).

The events that gave rise to the search and arrest all

occurred within the home, after the officers had unlawfully

entered the home and upon the officer's discovery of evidence

within the home during that unlawful entry. This is precisely

the circumstance the Supreme Court's decision in Payton barred by

- 58 -
holding that "'physical entry of the home is the chief evil

against which the wording of the Fourth Amendment is directed.'"

445 U.S. at 585 (citation omitted). The rule in Payton was

derived from the "overriding respect for the sanctity of the home

that has been embedded in our traditions since the origins of the

Republic." Id. at 601. By drawing a line at the entrance to a

home, the Fourth Amendment protects the physical integrity of the

home. As the Court noted in Johnson, "officers . . . thrust[ing]

themselves into a home is . . . a grave concern not only to the

individual but to a society which chooses to dwell in reasonable

security and freedom from surveillance." 333 U.S. at 14. Based

on the unlawful entry, McCracken was not unreasonable in his

attempt to resist the unlawful arrest and did not use excessive

force in resisting.
IV.

For these reasons, I would hold that the officer's

warrantless entry into the residence violated the Fourth

Amendment. That unlawful entry negated the officer's authority

to make an arrest for events occurring inside the home.

Therefore, I would reverse all the convictions and dismiss the

indictments. See Alexander, 19 Va. App. at 675, 454 S.E.2d at

41.

- 59 -
Bumgardner, J., dissenting, in part, and concurring, in part.

I do not believe the police acted unreasonably and,

therefore, conclude the trial court did not err. While I concur

in the decision to affirm the convictions of assault and battery,

I do not join that opinion.

Police officers responded to a domestic disturbance call

from Teresa Fields because she wanted the defendant removed from

her house. The defendant left voluntarily the first time.

Ninety minutes later, Fields placed a second call to the 911

emergency dispatcher because the defendant was returning to her

house. When the officers responded, neighbors were screaming

that the defendant was inside, and the officers heard him inside

arguing.
If the first officer had not entered Fields' house

immediately and investigated the domestic disturbance complaint,

he would have been derelict. Before entering the front door, the

officer had probable cause to believe the defendant was

trespassing, Code § 18.2-119, and at least, reasonable suspicion

of assault on a family member, Code § 18.2-57.2. 10

After the officer entered, he saw the bulge in the

defendant's pocket. The defendant did not cooperate and refused

to put his hands on the wall. When the defendant finally

10
In recognition of the difficulty of protecting against
domestic violence, the General Assembly increased the duties of
law-enforcement officers when responding to such incidents. See
Code § 19.2-81.3. Police are entitled to arrest without a
warrant when the violation does not occur in their presence.
They must arrest "the primary physical aggressor" if they develop
probable cause unless special circumstances exist. The police
must make written report of any incident in which they have
probable cause that "family abuse" occurred and written
explanation of the special circumstances if they do not arrest.
- 60 -
complied by putting his hands on the love seat, the officer

patted the defendant's pocket. At that point, the officer was

"authorized to take such steps as [are] reasonably necessary to

protect [his and others'] personal safety and to maintain the

status quo during the course of the stop." United States v.

Hensley, 469 U.S. 221, 235 (1985). The officer felt a hard,

rigid object, and when trying to remove it, the officer pulled

out a bag of marijuana. From that point, the officer had

probable cause to arrest for possession of marijuana, and the

defendant had no right to resist.
I believe the decisions to reverse the trial court fail to

view the evidence in the light most favorable to the

Commonwealth. By failing to take the appropriate appellate

perspective, each permits the lens of hindsight to distort its

inspection of the reasonableness of the police response to this

emergency call.

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