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REITTINGER v. COMMONWEALTH OF VA


REITTINGER v.
COMMONWEALTH OF VA


JULY 21, 1998
Record No. 0246-97-3

CHRISTOPHER JOHN REITTINGER

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUDGE SAM W. COLEMAN III
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY

George E. Honts, III, Judge
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia

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 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 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

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. 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 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
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. 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, 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 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
Sect. 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; 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, Sect. 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]

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 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 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, Sect. 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] 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.

 

 

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.

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.

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
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.

 

 

 

 

FOOTNOTES:

[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.

[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).

[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
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
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.

[5]
Code Sect. 18.2?308(D) provides that it is unlawful to carry a
weapon concealed from common observation unless a person
has a 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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