Tuesday 1st
September, 1998.
Christopher John Reittinger, Appellant,
against Record No. 0246-97-3
Circuit Court No. CR96000426-00
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On August 4, 1998 came the appellee, by counsel, and filed a
petition praying that the Court set aside the judgment rendered herein
on July 21, 1998, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on July 21, 1998 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.
It is further ordered that the appellee shall file with the clerk of
this Court ten additional copies of the appendix previously filed in
this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia
CHRISTOPHER JOHN REITTINGER
OPINION BY
v. Record No. 0246-97-3 JUDGE SAM W. COLEMAN III
JULY 21, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
Malcolm G. Crawford for appellant.
Marla Graff Decker, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Christopher John Reittinger was convicted in a bench trial
for possession of marijuana. On appeal, Reittinger contends:
(1) he was "seized" in violation of the Fourth Amendment by the
officer's show of authority in asking for consent to search the
vehicle after having indicated that Reittinger was free to leave,
and (2) the evidence was seized as the result of an illegal frisk
that violated the Fourth Amendment. We find that the officer's
encounter with Reittinger after concluding the motor vehicle
equipment investigation was consensual in nature and, therefore,
did not implicate the Fourth Amendment. Assuming, without
deciding, that the officer reasonably suspected from the bulge in
Reittinger's pocket and from Reittinger's conduct that Reittinger
was armed, we find that the officer's frisk violated the Fourth
Amendment because, at the time of the frisk, the officer was not
investigating suspected criminal activity or protecting the
public safety. Accordingly, we hold that the marijuana was
seized as the result of an illegal frisk and that the trial court
erred by admitting it into evidence.
I. BACKGROUND
Late one evening, Rockbridge County Police Officer Hugh
Bolen stopped Reittinger's van when Bolen observed it being
driven with an inoperable headlight. After giving Reittinger a
verbal warning to have the headlight repaired, Bolen told
Reittinger he was "free to go." Immediately thereafter, Bolen
asked Reittinger if he had contraband, or drugs, or firearms in
the vehicle. Reittinger eventually responded "no, that there
wasn't anything illegal in the vehicle." Bolen then asked if he
could search the vehicle for weapons or drugs. Reittinger
"turned around in his seat and looked at his passenger[s] and
. . . whispered something." Bolen repeated the question several
times. Reittinger remained silent but, eventually, without being
requested to do so, exited the vehicle. Bolen testified that he
did not have any particular reason to suspect that Reittinger was
engaged in criminal activity.
As Reittinger alighted from the vehicle, Bolen observed a
bulge in Reittinger's front pocket. Bolen then frisked
Reittinger's outer clothing because he felt it was "a safety
issue, out there in the dark." Bolen felt a large, hard bulge in
Reittinger's pocket, which he believed might have been a weapon.
Bolen asked Reittinger what was causing the bulge. Reittinger
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did not answer and "tried to cover [the pocket] up." After Bolen
told Reittinger, "you need to bring that out of your pocket,"
Reittinger pulled out a smoking device that contained marijuana
residue. Reittinger was charged with possession of marijuana.
At trial, Reittinger filed a motion to suppress the
marijuana evidence on the ground that Bolen had seized it in
violation of the Fourth Amendment. The trial court ruled that
Bolen's requesting consent to search the van immediately after
investigating the equipment violation and telling Reittinger he
was "free to go" would have led a reasonable person to believe he
or she was being further detained and was not free to leave.
Thus, the trial court ruled that Bolen had illegally detained
Reittinger without a reasonable, articulable suspicion that he
was engaged in criminal activity. The trial court found that
Reittinger exited the van without being asked to do so, in a
rural setting, at night, and after Bolen had asked for permission
to search the van. The trial court further found that although
Reittinger consented to the search of the van "[i]t is not
exactly clear whether [Reittinger] finally consented to [the]
search after he exited the van and before the pat down or after
the pat down." Thus, the court made no finding of fact that
Reittinger had consented to his van being searched when Officer
Bolen frisked him for weapons. Based on these findings, the
court ruled that, although Bolen unlawfully detained Reittinger
after the initial investigation, Bolen articulated a reason to
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suspect that Reittinger was armed and dangerous and, thus, that
Bolen was justified in frisking Reittinger for the officer's own
safety. The court denied Reittinger's motion to suppress and
convicted him for possession of marijuana.
II. ANALYSIS
This appeal raises fundamental questions about the scope of
the Fourth Amendment's protection against unreasonable searches
and seizures. In resolving the questions presented, we examine:
(1) the nature and constitutional dimensions of the encounter
from the time Bolen completed the headlight investigation until
the frisk and (2) the constitutionality of the frisk.
On appeal, the defendant bears the burden of establishing
that the trial court's denial of the motion to suppress was
reversible error. See Greene v. Commonwealth, 17 Va. App. 606,
608, 440 S.E.2d 138, 139-40 (1994). Whether a "seizure" occurred
that implicated the Fourth Amendment and whether a police
officer's protective weapons frisk was constitutionally valid
involve questions of law and fact and are reviewed de novo on
appeal. See McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United
States, 517 U.S. 690, 691 (1996)). "In performing such analysis,
we are bound by the trial court's findings of historical fact
unless plainly wrong or without evidence to support them. . . ."
Id. (citing Ornelas, 517 U.S. at 699).
A. Encounter After Investigative Traffic Stop
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Reittinger contends, and the trial court ruled, that Bolen
unlawfully seized Reittinger in violation of the Fourth Amendment
by subjecting Reittinger to a "new and unrelated inquiry"
immediately following the officer's investigation of the motor
vehicle equipment violation. We hold that Bolen's conduct in
asking questions and seeking permission to search the van without
a reasonable and articulable basis for doing so did not
constitute a "seizure."
A person is "seized" under the Fourth Amendment "only if, in
view of all of the circumstances surrounding an incident, a
reasonable person would have believed that he was not free to
leave." Mendenhall v. United States, 446 U.S. 544, 554 (1980).
In order for a seizure to occur, a police officer "must restrain
a citizen's freedom of movement by the use of physical force or
show of authority." Ford v. City of Newport News, 23 Va. App.
137, 142, 474 S.E.2d 848, 850 (1996) (citing California v.
Hodari D., 499 U.S. 621 (1991)). A "voluntary or consensual
encounter between a police officer and a citizen does not
implicate the Fourth Amendment as long as 'a reasonable person
would understand that he or she could refuse to cooperate.'"
Lawrence v. Commonwealth, 17 Va. App. 140, 144, 435 S.E.2d 591,
594 (1993) (quoting United States v. Wilson, 953 F.2d 116, 121
(4th Cir. 1991)). Whether a person is "free to leave" must be
measured by an "objective standard -- looking to the reasonable
man's interpretation of the conduct in question." Michigan v.
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Chesternut, 486 U.S. 567, 574 (1988).
Viewed in the light most favorable to the Commonwealth, Fore
v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980),
the evidence established that Reittinger's encounter with Officer
Bolen was consensual from the completion of the defective
equipment investigation until the frisk and was not a "seizure"
that implicated the Fourth Amendment. After completing the
equipment investigation, Bolen admonished Reittinger to have the
headlight repaired and told him he was "free to go." At the
time, Officer Bolen was not physically restraining Reittinger in
any manner and made no show of authority to indicate that
Reittinger was not free to leave. Therefore, a reasonable person
would have believed that the investigation had ended and that he
or she was free to leave. See Wechsler v. Commonwealth, 20 Va.
App. 162, 171, 455 S.E.2d 744, 748 (1995).
Officer Bolen's request for permission to search the van
after telling Reittinger he was free to leave was not a show of
authority that compelled Reittinger to consent to the search or
to believe he had no choice but to stay and address Bolen's
query. The officer did not draw his weapon, did not physically
restrain Reittinger, and did not by show of force or authority
restrict Reittinger's freedom of movement or indicate that
Reittinger was not free to leave. See Baldwin v. Commonwealth,
243 Va. 191, 199, 413 S.E.2d 645, 649 (1992) (noting that
circumstances under which reasonable person may believe he was
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not free to leave include, but are not limited to, "the
threatening presence of several officers, the display of a weapon
by an officer, some physical touching of the person, or the use
of language or tone of voice indicating that compliance with the
officer's request might be compelled"). Even though an
individual may feel some trepidation during a consensual
encounter with a police officer and some reluctance or discomfort
in walking away from such an encounter, a police officer's
conduct does not implicate the Fourth Amendment if the officer
merely poses questions to an individual in a public place and the
individual chooses to answer them. See Florida v. Royer, 460
U.S. 491, 497 (1983); Buck v. Commonwealth, 20 Va. App. 298,
301-02, 456 S.E.2d 534, 535 (1995). Without some indicated
restraint, mere questioning by officers when a routine traffic
stop is over and its purpose served does not amount to a seizure
under the Fourth Amendment. See United States v. Sullivan, 138
F.3d 126, 131 (4th Cir. 1998). "As long as the [individual] to
whom questions are put remains free to disregard the questions
and walk away, there has been no intrusion upon that person's
liberty as would under the [Fourth Amendment] require some
particularized and objective justification." Mendenhall, 446
U.S. at 553-54.
Considering the totality of the circumstances, we hold that
as a matter of law a reasonable person would have believed he or
she was free to leave and could have declined to stay and answer
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Bolen's questions. 1 Reittinger voluntarily remained at the scene
after Bolen told him he was "free to go." Reittinger does not
assert he was seized because he involuntarily consented to have
his vehicle searched; he contends he was seized as a result of
the officer's request to search his van after telling him he
could go. We hold that Bolen did not "seize" Reittinger within
the meaning of the Fourth Amendment merely by asking permission
to search his vehicle.
B. Protective Frisk
We next consider the validity of Bolen's protective weapons
frisk of Reittinger. The Fourth Amendment proscribes
"unreasonable searches and seizures" by the government of its
citizens and their effects. U.S. Const. amend. IV. It is well
settled that an officer's protective frisk for weapons is an
intrusion upon an individual's personal privacy and is a
"seizure" that implicates the Fourth Amendment. See Adams v.
Williams, 407 U.S. 143, 147 n.2 (1972); Toliver v. Commonwealth,
23 Va. App. 34, 36, 473 S.E.2d 722, 724 (1996). Thus, we must
determine whether Bolen's protective weapons frisk of Reittinger
was reasonable under the circumstances. See Pennsylvania v.
1
An increasing number of appeals present situations in which
police officers routinely ask permission to do drug and weapon
searches of motor vehicles following stops for minor traffic
infractions. See, e.g., United States v. Lattimore, 87 F.3d 647
(4th Cir. 1996) (en banc). Although a police officer's request
to search a vehicle immediately following a completed traffic
stop bears some degree of compulsion, without more, it is not a
"seizure" for Fourth Amendment purposes.
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Mimms, 434 U.S. 106, 108-09 (1977) (per curiam) ("The touchstone
of [the Court's] analysis under the Fourth Amendment is always
the reasonableness in all the circumstances of the particular
government invasion of a citizen's personal security."). A
determination as to the reasonableness of a particular police
procedure depends "on a balance between the public interest and
the individual's right to personal security free from arbitrary
interference by law [enforcement] officers." United States v.
Brignoni-Ponce, 422 U.S. 873, 878 (1975).
In Terry v. Ohio, 392 U.S. 1 (1968), the United States
Supreme Court considered "whether it is always unreasonable for a
[police officer] to seize a person and subject him to a limited
search for weapons unless there is probable cause for arrest."
392 U.S. at 22. The Court stated that "a police officer may in
appropriate circumstances and in an appropriate manner approach a
person for purposes of investigating possible criminal behavior
even though there is no probable cause to make an arrest." Id.
at 22. It held that a police officer may lawfully "stop" an
individual if the officer possesses a reasonable suspicion, based
on specific and articulable facts, that the individual is or is
about to be engaged in criminal activity. Id. at 30. Further,
once the officer has lawfully detained a person for investigation
and questioning, "he may conduct a limited pat-down search of the
suspect's outer clothing to search for weapons if the officer
reasonably believes, based on specific and articulable facts,
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that the suspect might be armed and dangerous." Phillips v.
Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993)
(citing Terry, 392 U.S. at 30). Accordingly, under Terry, a
police officer may conduct a protective frisk if he or she can
"point to specific and articulable facts which, taken together
with rational inferences from those facts," reasonably lead the
officer to conclude: (1) that "criminal activity may be afoot,"
and (2) that the suspect "may be presently armed and dangerous."
Landsdown v. Commonwealth, 236 Va. 204, 212, 308 S.E.2d 106, 112
(1983) (quoting Terry, 392 U.S. at 21, 30).
Justice Harlan emphasized in his concurring opinion in Terry
that the Fourth Amendment generally does not permit a police
officer to frisk an individual based solely upon the officer's
reasonable suspicion that the individual is armed and dangerous
but without a legitimate reason to suspect criminal activity. He
stated:
[I]f the frisk is justified in order to
protect the officer during an encounter with
a citizen, the officer must first have
constitutional grounds to insist on an
encounter, to make a forcible stop. Any
person, including a [police officer], is at
liberty to avoid a person he considers
dangerous. If and when a [police officer]
has a right instead to disarm such a person
for his own protection, he must first have a
right not to avoid him but to be in his
presence. That right must be more than the
liberty (again, possessed by every citizen)
to address questions to other persons, for
ordinarily the person addressed has an equal
right to ignore his interrogator and walk
away; he certainly need not submit to a frisk
for the questioner's protection. I would
make it perfectly clear that the right to
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frisk . . . depends upon the reasonableness
of a forcible stop to investigate suspected
crime.
Terry, 392 U.S. at 32-33 (Harlan, J., concurring) (second
emphasis added). Accord Adams, 407 U.S. at 146 ("So long as the
officer is entitled to make a forcible stop, and has reason to
believe that the suspect is armed and dangerous, he may conduct a
weapons search limited in scope to this protective purpose."
(emphasis added) (footnote omitted)).
As Justice Harlan's concurring opinion clarifies, the
general purpose of a protective frisk is to facilitate the police
officer's limited investigation of suspected criminal activity
without fear or threat of violent reprisal by the suspect. See
Adams, 407 U.S. at 146. It would be unreasonable to allow an
officer to conduct a protective frisk where the officer
unnecessarily places himself or herself in a precarious situation
by initiating a baseless encounter with an individual whom he or
she considers armed and dangerous. See Wayne R. LaFave, Search
and Seizure § 9.5(a) (2d ed. 1987). Thus, under the Fourth
Amendment, the general rule is that a police officer may not
approach and frisk an individual whom he or she reasonably
believes may be armed and dangerous if the officer has no reason
to suspect that the individual is also engaged in criminal
activity. 2 See Toliver, 23 Va. App. at 36-37, 473 S.E.2d at 724;
2
As one court has colorfully stated the rule: "No matter
how appealing the cart may be, the horse must precede it." Gomez
v. United States, 597 A.2d 884, 891 (D.C. App. 1991).
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Commonwealth v. Couture, 552 N.E.2d 538, 540-41 (Mass. 1990);
State v. Giltner, 537 P.2d 14, 17 (Haw. 1975); People v. Batino,
367 N.Y.S.2d 784, 785 (1975).
Similarly, where an officer lawfully "stops" an individual,
and through investigation dispels any reasonable suspicion that
the individual may be engaged in criminal activity, the officer
may not thereafter conduct a protective frisk for weapons, even
if the officer reasonably suspects that the individual is
presently armed and dangerous, unless subsequent circumstances
renew the officer's reasonable belief that criminal activity may
be afoot. See United States v. Thomas, 863 F.2d 622, 628 (9th
Cir. 1988); State v. White, 856 P.2d 656, 662 (Utah Ct. App.
1993); Coleman v. United States, 337 A.2d 767, 771-72 (D.C. App.
1975); see also LaFave, supra, § 9.5(a) at 247. In such a
situation, the police officer may allay any legitimate concern
for his or her safety by discontinuing the encounter with the
individual. But, an officer may not justify a protective search
by using legitimate safety concerns to bootstrap his or her lack
of sufficient suspicion of criminal activity. See id. Under the
general rule of Terry, if the officer's justification to stop or
detain a person dissipates, then a weapons frisk is
constitutionally impermissible. 3
3
The decision in United States v. Thomas is demonstrative.
There, a police officer, after receiving a report describing two
men suspected of passing counterfeit money, stopped a vehicle in
which two possible suspects were riding. Thomas, 863 F.2d at
624. After stopping the vehicle, the officer determined that the
defendant "did not match the description of either of the
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In recent years, Virginia courts have recognized that in
limited circumstances a police officer may lawfully frisk an
individual whom he or she reasonably believes may be armed
without a particularized suspicion that the subject of the frisk
may be involved in any criminal activity. The Virginia Supreme
Court upheld a protective frisk where the police officer lawfully
"stopped" a vehicle suspecting that the operator was engaged in
criminal activity and frisked a passenger whom he reasonably
believed to be armed and dangerous. See Bethea v. Commonwealth,
245 Va. 416, 420, 429 S.E.2d 211, 213 (1993) (citing Pennsylvania
v. Mimms, 434 U.S. 106 (1977)). 4 In Moore v. Commonwealth, 25
(..continued)
suspects." Id. at 628. After questioning the defendant as to
why he was in the area and checking his identification, the
officer asked Thomas whether he was carrying a weapon. When
Thomas did not respond, the officer frisked Thomas, recovered a
handgun, and arrested him for carrying a concealed weapon. Id.
at 624. The federal appeals court determined in Thomas that the
officer's initial stop was lawful, finding that the defendant's
initial appearance and proximity to the crime scene reasonably
supported the officer's suspicion that he might be the
counterfeiter. Id. at 626. However, the court found that the
justification for the stop evaporated when the officer determined
that Thomas did not fit the reported description of either
suspect. Id. at 628. Because the officer lacked reasonable
suspicion that Thomas was engaged in criminal activity, the court
held that there was "no basis for the [officer's] subsequent
detention and frisk." Id.
4
Two federal courts have found no Fourth Amendment violation
where an officer frisked an individual prior to conducting a
consensual search of the individual's home. See United States v.
Brooks, 2 F.3d 838 (8th Cir. 1993); United States v. Flippin, 924
F.2d 163 (9th Cir. 1991). In the present case, the trial court
specifically found the evidence to be "unclear" as to whether
Reittinger consented to Officer Bolen searching the van before he
was frisked. Upon review of the record, without doing violence
to the standard of review, we cannot say the court's finding of
historical fact was plainly wrong or unsupported by the evidence,
and, thus, we are bound by the trial court's findings. See
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Va. App. 277, 286, 487 S.E.2d 864, 868-69 (1997), we held that an
officer could lawfully frisk a pedestrian, who was stranded on an
interstate highway bridge, prior to transporting him from the
highway in the back seat of a police cruiser. See also State v.
Evans, 618 N.E.2d 162 (Ohio 1993); State v. Vasquez, 807 P.2d 520
(Ariz. 1991). Most recently, this Court held that police
officers did not violate the Fourth Amendment when, upon seeing
two drug trafficking suspects enter a large crowd of bystanders
on a public street, the officers ordered the bystanders to lie on
the ground and frisked one bystander whose furtive actions caused
the officer to suspect the bystander was armed and dangerous.
See Welshman v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d
___, ___ (1998) (en banc) (citing Maryland v. Wilson, 117 S. Ct.
882, 886 (1997)).
These recent developments in our Fourth Amendment case law
share a common denominator. In each case, the police officer was
required to encounter the subject of the frisk in the course of
discharging his or her official duties to investigate suspected
criminal activity or to protect the public safety. The officers
not only had a "right not to avoid" a possibly armed and
(..continued)
McGee, 25 Va. App. at 197-98, 487 S.E.2d at 461. Because the
Commonwealth has the burden of establishing that circumstances
warranted the frisk, see Coolidge v. New Hampshire, 403 U.S. 443,
454-55 (1971), and the record does not establish that Reittinger
consented to the search of the van before Officer Bolen frisked
him, we do not consider the question of whether a weapons frisk
is justified as a reasonable, precautionary measure when the
officer is conducting a consensual vehicle search.
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dangerous individual but had the duty to perform their
investigative or protective functions in the individual's
presence. Terry, 392 U.S. at 32 (Harlan, J., concurring).
Indeed, in Moore, we stated:
Terry recognized the reasonableness of a
minimal intrusion on personal privacy to
insure the safety of an officer
investigating, in a public place, a
reasonable suspicion of lawbreaking. Other
authorities have recognized the
reasonableness of such intrusions to insure
the safety of officers performing their
duties under other circumstances.
25 Va. App. at 286, 487 S.E.2d at 869 (relying on police
officer's "duty" as community caretaker to transport stranded
pedestrian from interstate highway bridge) (emphasis added).
Accordingly, in order to conduct a protective frisk under the
current case law, a police officer must legitimately be in the
presence of the subject of the frisk in the course of performing
the officer's civil duties to investigate suspected criminal
activity or to protect the public safety. See LaFave, supra,
§ 9.5(a) at 247.
In the present case, once Officer Bolen had completed the
investigation of Reittinger's defective equipment violation, he
was no longer required, by virtue of his civil duties, to remain
in Reittinger's presence. Bolen testified that after he
completed the headlight investigation he did not suspect that
Reittinger was otherwise engaged in criminal activity. 5
5
Code § 18.2-308(D) provides that it is unlawful to carry a
weapon concealed from common observation unless a person has a
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Moreover, the facts demonstrate that the officer was neither
investigating any suspected criminal activity in proximity to
Reittinger nor was he acting to secure the safety of public
citizens. Rather, Bolen arbitrarily requested permission to
search Reittinger's vehicle, a question he randomly and "commonly
ask[s] people [after] a traffic stop." Therefore, assuming Bolen
had a reasonable suspicion that Reittinger may have been armed
and dangerous, we hold that Bolen's frisk violated the Fourth
Amendment because, at the time of the frisk, he was not compelled
to remain in Reittinger's presence by his civil duties to
investigate crime or to protect public safety.
For the foregoing reasons, we hold that the trial court
erred in denying the motion to suppress the marijuana seized
pursuant to Bolen's unlawful frisk. See Zimmerman v.
Commonwealth, 234 Va. 609, 613, 363 S.E.2d 708, 710 (1988).
Accordingly, we reverse the conviction and dismiss the warrant.
Reversed and dismissed.
(..continued)
permit to do so. Thus, the fact that Officer Bolen may have
believed that Reittinger was armed would not be a reason to
suspect that he was illegally carrying a concealed weapon, and,
in that regard, committing a crime. In Virginia, the fact that a
person may be armed does not provide a reason to suspect that the
person is violating the law. See, e.g., Couture, 552 N.E.2d at
540; cf. Commonwealth v. Spencer, 21 Va. App. 156, 160, 462
S.E.2d 899, 902 (1995) (lack of city or county decal insufficient
basis to stop).
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Benton, J., concurring.
I concur in the opinion except for the holding in Part II(A)
that Reittinger was not seized when the officer began his inquiry
about drugs and guns.
"[S]topping an automobile and detaining its occupants
constitutes a 'seizure' within the meaning of [the Fourth
Amendment] even though the purpose of the stop is limited and the
resulting detention quite brief." Delaware v. Prouse, 440 U.S.
648, 653 (1979). The evidence proved that "probably no more than
a second or two" after the officer told Reittinger he was "free
to go," the officer asked Reittinger "if he had any drugs or
weapons in the vehicle."
The inquiry concerning the drugs or weapons was an
unconstitutional extension of the original traffic stop.
Although the reason for the initial stop had ended, the officer
continued the detention by making inquiries unrelated to the
initial stop. The evidence does not prove whether the officer
had returned Reittinger's vehicle registration when he began the
inquiry about the drugs and weapons. Thus, I would uphold the
trial judge's ruling that the officer's inquiry concerning drugs
and guns was so immediate that a reasonable person would not have
believed he or she was free to leave. See Florida v. Royer, 460
U.S. 491, 502 (1982). The officer's immediate transition into
the inquiry was so seamless that a reasonable person would not
have believed the initial seizure had ended. See id. at 497.
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Therefore, I would hold that the inquiry concerning the
drugs and weapons constituted an unlawful seizure under the
Fourth Amendment because the officer had completed the equipment
investigation and then subjected the defendant to a new and
unrelated inquiry under circumstances such that a reasonable
person would not have believed the initial seizure had ended or
that he or she was free to leave.
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Bumgardner, J., dissenting.
I respectfully dissent from Part II(B) of the opinion. I do
not believe that during a lawful encounter a police officer is
forbidden to conduct a carefully limited frisk for weapons unless
the officer has a reasonable suspicion that the person is both
armed and dangerous, and is engaged in criminal activity.
This case involved a consensual encounter following
completion of a lawful stop for a traffic offense. The officer
asked for permission to search the vehicle. The defendant
suddenly and unexpectedly emerged from the vehicle before saying
whether he would consent. The officer was entitled to remain
until the defendant responded. If he gave consent, the officer
was entitled to conduct the search. I do not believe the law
requires that the officer carry it out under dangerous
conditions. See Michigan v. Long, 463 U.S. 1032, 1049 (1983).
In the precarious moments as the defendant emerged, the
officer acquired a reasonable suspicion that the defendant might
be armed. He observed a bulge in the defendant's right hand
front pocket. He asked the defendant what it was. On receiving
no answer but on seeing the defendant move his hand toward the
bulge and attempt to cover it up, the officer for the first time
touched the defendant. He felt a large, hard bulge and believed
it could be a weapon. The defendant continued to evade the
officer's question about what was in his pocket, so the officer
ordered him to remove the object. It was a smoking device with
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marijuana residue and gave the officer probable cause to arrest
the defendant.
Under all the circumstances of this case the actions of the
officer were reasonable, and I would hold that they were a
permissible interference with the defendant's personal security
as permitted under Terry v. Ohio, 372 U.S. 1 (1968), and its
progeny. See United States v. Baker, 78 F.3d 135, 137 (4th Cir.
1996). The officer was properly before the defendant, and he was
permitted to continue the voluntary encounter. While doing so,
he developed a reasonable suspicion that the defendant might be
armed, although he did not have a reasonable suspicion that the
defendant was engaged in criminal activity. "The law does not
expect a police officer must gamble on turning away from a
possible danger and chance taking a bullet in the back . . . ."
Lansdown v. Commonwealth, 226 Va. 204, 212, 308 S.E.2d 106, 111
(1983), cert. denied, 465 U.S. 1104 (1984). I would affirm the
conviction.
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