Reittinger v. Commonwealth

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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