Home / Uncategorized / REITTINGER v. COMMONWEALTH

REITTINGER v. COMMONWEALTH


REITTINGER v. COMMONWEALTH


MAY 25, 1999

Record No. 0246-97-3

UPON A REHEARING EN BANC

CHRISTOPHER JOHN REITTINGER

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY

George E. Honts, III, Judge

Present: Chief Judge Fitzpatrick, Judges
Benton, Coleman, Willis, Elder, Bray, Annunziata, Bumgardner,
Lemons ]

and Senior Judge Overton [1]

Argued at Richmond, Virginia

OPINION BY JUDGE RUDOLPH BUMGARDNER, III

Malcolm G. Crawford for appellant.

Marla Graff Decker, Assistant Attorney General
(Mark L. Earley, Attorney General, on briefs), for appellee.


A panel of this Court reversed the conviction
of Christopher John Reittinger for possession of marijuana. See
Reittinger v. Commonwealth, 28 Va. App. 80, 502 S.E.2d 151
(1998). Upon a rehearing en banc, we conclude that
the deputy sheriff developed a reasonable, articulable suspicion
that the defendant was armed and dangerous during a consensual
encounter which immediately followed a lawful detention of the
defendant. The frisk for weapons that the deputy conducted was
reasonable under the circumstances of this case and did not
violate the Fourth Amendment. Accordingly, we affirm the
conviction.

A deputy sheriff stopped the defendant for
driving his 1990 Volkswagen van with a broken headlight at 10:30
p.m. in rural Rockbridge County. The deputy determined that the
defendant had already bought a replacement bulb, though he had
not yet installed it. The deputy warned the defendant not to
drive at night until he fixed the light but told him that he was
"free to go." Immediately thereafter, although the
deputy did not have any particular reason to suspect criminal
activity, he asked if the defendant had any contraband or
firearms in the vehicle. Eventually, the defendant responded that
he did not have any. The deputy then asked if he could search the
vehicle for weapons or drugs. The deputy stated that he routinely
asks for consent to search after most traffic stops and that he
receives permission to do so in a majority of cases. The
defendant turned around in his seat, looked at his two
passengers, and whispered something the deputy could not hear.
The deputy repeated his question several times, but the defendant
did not answer. A second deputy was standing beside the
passenger’s door. Finally, without being asked to get out,
the defendant opened the van door and started getting out.

As the defendant climbed out of the van, the
deputy observed a bulge in his right front pocket. The deputy
asked if the defendant had anything illegal on his person. The
defendant replied that he did not but "moved his hand to
cover up the bulge." The deputy patted the defendant’s
outer clothing, and felt a large, hard bulge in the pocket, which
he thought might be a weapon. Again he asked the defendant what
was causing the bulge, but the defendant did not answer. The
deputy told him to empty the pocket, but the defendant emptied
his left pocket, not the right one with the bulge. Increasingly
suspicious that the defendant was hiding something, the deputy
said, "you need to bring that out of your pocket," and
the defendant pulled out a smoking device. It contained marijuana
residue and was the basis for the charge placed against the
defendant.

The defendant filed a motion to suppress the
evidence arguing that the deputy illegally searched him. The
trial court ruled the deputy was justified in frisking the
defendant for his own safety, denied the motion to suppress, and
convicted the defendant of possession of marijuana.

On appeal, the defendant bears the burden to
establish that denying 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
and whether a frisk for weapons was constitutionally valid
involve questions of law and fact which we review 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, 516 U.S. 690, 699
(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,
516 U.S. at 699). We view the evidence in the light most
favorable to the Commonwealth. See Fore v. Commonwealth,
220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).

The initial stop of the defendant was a valid
stop for driving with a broken headlight at night, which the
defendant concedes. Following the deputy’s investigation for
that offense, the defendant was free to leave, but before he
left, the deputy asked for permission to search the
defendant’s van. The defendant contends that the
deputy’s request and subsequent actions constituted a
seizure. We disagree and hold that the lawful detention flowed
immediately into a consensual encounter.

A consensual encounter can follow a legitimate
detention. See Ohio v. Robinette, 519 U.S. 33,
39-40 (1996) (holding that consensual encounter may begin after
legitimate detention has ended even if detainee is not told he is
free to go). Consensual encounters "‘need not be
predicated on any suspicion of the person’s involvement in
wrongdoing,’ and remain consensual ‘as long as the
citizen voluntarily cooperates with the police.’" Payne
v. Commonwealth
, 14 Va. App. 86, 88, 414 S.E.2d 869, 870
(1992) (quoting United States v. Wilson, 953 F.2d 116, 121
(4th Cir. 1991)). See McGee, 25 Va. App. at 198,
487 S.E.2d at 261; Iglesias v. Commonwealth, 7 Va. App.
93, 99, 372 S.E.2d 170, 173 (1988). 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).

A person is "seized" under the Fourth
Amendment when "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, 625 (1991)). See Thomas v. Commonwealth,
24 Va. App. 49, 54, 480 S.E.2d 135, 137 (1997) (en banc).
Questions alone do not amount to a seizure. See Mendenhall,
446 U.S. at 553-54. "So long as the [individual] to whom the
questions are put remains free to disregard the questions and
walk away," no Fourth Amendment violation has occurred. Id.
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).

Under the circumstances of this case, a
reasonable person would have believed that the investigation had
ended and that he was free to leave. See Wechsler v.
Commonwealth
, 20 Va. App. 162, 171, 455 S.E.2d 744, 748
(1995). The deputy engaged the defendant in a consensual
encounter following a lawful detention for defective equipment.
Immediately after telling the defendant he was "free to
go," the deputy asked the defendant whether he had any
contraband or weapons and whether he would permit the deputy to
search the vehicle. The defendant eventually exited the vehicle
without being asked to do so. Under these facts, the continued
encounter did not constitute a seizure. The deputy did not seize
the defendant when he began asking to search. Compliance with a
police request does not negate the consensual nature of the
response. See Baldwin v. Commonwealth, 243 Va. 191,
197, 413 S.E.2d 645, 648 (1992); Greene, 17 Va. App. at
610, 440 S.E.2d at 140-41. Considering the totality of the
circumstances, we hold that a reasonable person would have
believed he was free to leave and could have declined to stay and
answer the deputy’s questions.

The trial court ruled that the deputy could
frisk for weapons because he had a reasonable, articulable
suspicion that the defendant was armed and dangerous. However,
the defendant argues that the frisk was not permissible unless
the deputy had reasonable suspicion that the defendant was
engaged in criminal activity as well as a reasonable suspicion
that he was armed and dangerous. We disagree.

A protective frisk for weapons is an intrusion
upon an individual’s personal privacy 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). The reasonableness of an
intrusion is determined by "balancing an individual’s
right to be free from arbitrary government intrusions against
society’s countervailing interest in preventing or detecting
crime and in protecting its law enforcement officers." Bethea
v. Commonwealth
, 14 Va. App. 474, 476, 419 S.E.2d 249, 250
(1992) (en banc) (citation omitted), aff’d
on other grounds
, 245 Va. 416, 429 S.E.2d 211 (1993). Officer
safety is among those interests against which personal rights
must be balanced. See Knowles v. Iowa, 119 S. Ct.
484, 487-88 (1998) (citing Terry v. Ohio, 392 U.S. 1
(1968)); Maryland v. Wilson, 519 U.S. 408, 412-13 (1997); Pennsylvania
v. Mimms
, 434 U.S. 106, 108-09 (1977) (per curiam);
United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).

Virginia’s appellate courts have confirmed
on several prior occasions that an officer need not have a
reasonable suspicion that a person is engaged in criminal
activity before protecting himself with a carefully limited frisk
for weapons. Courts have approved frisks under circumstances in
which an officer developed a reasonable suspicion that the person
he lawfully confronted was armed and dangerous even though the
officer did not have a particularized suspicion that the subject
was involved in criminal activity. In Bethea v. Commonwealth,
245 Va. 416, 420, 429 S.E.2d 211, 213 (1993), which involved the
lawful stop of a vehicle for a decal violation, the Supreme Court
upheld the conviction of a passenger who was first removed from
the car and later frisked though he was not suspected of criminal
activity. In Moore v. Commonwealth, 25 Va. App. 277, 286,
487 S.E.2d 864, 868-69 (1997), which involved the lawful stop of
a vehicle for speeding, this Court upheld an officer’s
protective frisk of a passenger, stranded as a result of the
stop, before the officer transported the passenger in his police
cruiser. In Welshman v. Commonwealth, 28 Va. App. 20, 32,
502 S.E.2d 122, 128 (1998) (en banc), we held that
police officers with probable cause to arrest a suspected drug
dealer did not violate the Fourth Amendment when they ordered
bystanders to lie on the ground and frisked one bystander whose
furtive actions caused an officer to believe he was armed and
dangerous. Finally, in James v. Commonwealth, 22 Va. App.
740, 745-46, 473 S.E.2d 90, 92 (1996), in which officers were
engaged in arresting the driver of a vehicle on a felony warrant,
we held that the officers were justified in frisking a passenger
who was jittery and failed to respond to an officer’s
request to keep his hands in view.

In each of these cases, the officer involved
had a duty to initiate the encounter which put him lawfully in
the presence of the individual frisked. Under settled principles,
in order to conduct a pat-down weapons frisk, an officer must (1)
rightly be in the presence of the party frisked so as to be
endangered if the person is armed and (2) have reasonable
suspicion that the person is armed and dangerous. See 4
Wayne R. LaFave, Search and Seizure Sect. 9.5(a), at
246 (3d ed. 1996). The requirement that an officer be rightly in
the presence of the person frisked means that the officer must
have a duty to be in the person’s presence, such as to
execute a search warrant or to conduct an investigatory stop or
arrest of some other person. See id. at 247 (citing
Terry, 362 U.S. at 32-33 (Harlan, J., concurring)). Such a
duty existed in Bethea, Moore, Welshman and James.
Conversely,

a frisk for self-protection
cannot be undertaken when the officer has
unnecessarily put himself in a position of danger
by not avoiding the individual in question. This
means that in the absence of some legitimate
basis for the officer being in the immediate
proximity of the person, a degree of suspicion
that the person is armed which would suffice to
justify a frisk if there were that basis
will not alone justify such a search.

LaFave, supra, at 247 (footnote
omitted).

Extrapolating from these principles, we hold
that where a lawful encounter based on reasonable suspicion or
probable cause flows immediately into a consensual encounter, an
officer remains lawfully in the presence of the individual
previously detained for purposes of conducting a pat-down search.
Therefore, the officer may frisk the individual for weapons if he
develops a reasonable suspicion that the individual may be armed
and dangerous.

Here, the evidence may not have provided an
objectively reasonable suspicion that the defendant was engaged
in criminal activity during the consensual portion of the
encounter. However, because it did establish that the deputy was
rightly in the defendant’s presence and that he had an
objectively reasonable suspicion that the defendant was armed and
dangerous, we hold that the frisk for weapons was lawful. The
consensual encounter in this case followed immediately on the
heels of a lawful detention. It did not involve an initial
encounter that the deputy was at liberty to avoid. Both
circumstances warranted and duty demanded a forced encounter.
[2]

Upon completing the traffic stop, the deputy
told the defendant he was "free to go" before beginning
the consensual portion of the encounter during which he asked for
permission to search the defendant’s van. Although the
portion of the encounter that continued after the initial lawful
stop had terminated was consensual, the deputy remained
vulnerable as long as the encounter continued. In the precarious
moments as the defendant suddenly and unexpectedly emerged from
the van, the deputy acquired a reasonable suspicion that he might
be armed. The deputy observed a bulge in the defendant’s
right front pocket and asked him what it was. On receiving no
answer but seeing the defendant move his hand toward the bulge
and attempt to cover it up, the deputy 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 deputy’s
questions about what was in his pocket, so the deputy ordered him
to remove the object. It was a smoking device with marijuana
residue and gave the deputy probable cause to arrest the
defendant.

These facts show that the deputy did not pat
the defendant down for weapons immediately upon seeing the bulge
in the defendant’s pocket. See Stanley v.
Commonwealth
, 16 Va. App. 873, 876-77, 433 S.E.2d 512, 514-15
(1993) (holding that officer’s observation of bulge in
clothing of driver of motor scooter during traffic stop was
insufficient to support pat-down for weapons unless bulge was of
size or shape to warrant reasonable suspicion that it could be a
weapon or other facts supported reasonable suspicion that driver
was armed and dangerous). Rather, the deputy made graduated
responses to escalating concerns that the defendant was armed and
dangerous. The deputy made reasonable, carefully measured inquiry
regarding the bulge in the defendant’s pocket, but at each
level of inquiry, his suspicions were not dispelled; they were
heightened. When the deputy finally touched the defendant by
patting the bulge, he did seize the defendant, but by then he had
developed reasonable suspicion to believe that the defendant was
armed.

This case involved an encounter at close range.
The deputy was vulnerable before he told the defendant he was
"free to go," he remained vulnerable after making that
statement, and he became particularly vulnerable when the
defendant began to exit the van. Under all the circumstances of
this case, the deputy’s actions were reasonable and
constituted a permissible interference with the defendant’s
personal security as permitted under Terry, 372 U.S. 1,
and its progeny. "Based on the inordinate risk of danger to
law enforcement officers during traffic stops, observing a bulge
that could be made by a weapon in a suspect’s clothing
reasonably warrants a belief that the suspect is potentially
dangerous, even if the suspect was stopped only for a minor
violation." United States v. Baker, 78 F.3d 135, 137
(1996), cert. denied, 118 S. Ct. 699 (1998).
"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).

We hold that the frisk for weapons was
reasonable under the facts of this case and that the trial court,
therefore, properly

denied the motion to suppress. Accordingly, we
affirm the defendant’s conviction.

Affirmed.


Coleman, J., with whom Fitzpatrick, C.J.,
Benton and Annunziata, JJ., join, dissenting.

The Fourth Amendment of the
Constitution of the United States provides in
part that "the right of the people to be
secure in their persons, houses, papers, and
effects, against unreasonable searches and
seizures, shall not be
violated. . . ." This
inestimable right of personal security belongs to
all citizens, whether they are in the comfort of
their homes or in the streets of our cities.

Harris v. Commonwealth, 241 Va. 146,
149, 400 S.E.2d 191, 193 (1991) (quoting Terry v. Ohio,
392 U.S. 1, 8-9 (1968)).

The majority holds that a police officer who is
engaged in a consensual encounter with a citizen, following a
lawful but concluded traffic stop, may, without violating the
Fourth Amendment, frisk a citizen for weapons when the officer
has reason to believe the citizen is armed but no reason to
suspect that the citizen is or may be engaged in criminal
activity. The majority bases its holding upon the required Fourth
Amendment analysis of "balancing an individual’s right
to be free from arbitrary government intrusions against
society’s countervailing interest in preventing or detecting
crime and in protecting its law enforcement officers." In so
doing, the majority concludes that a police officer’s
safety, standing alone, outweighs the intrusion upon a
citizen’s privacy right and justifies a pat-down of the
citizen for weapons. The majority’s balancing analysis
ignores a major component of the second prong of the equation
which is balancing the individual’s privacy right against
both the police officers’ safety and "society’s
countervailing interest in preventing or detecting crime."
In order to justify an intrusion upon an individual’s
privacy right, there must be a reason to suspect that the person
to be frisked is armed and dangerous and a reason requiring the
officer to remain on the scene — such as the officer’s duty
to pursue suspected criminal activity or some other official duty
of his or her office.

The mere fact that a police officer observes a
bulge in a citizen’s pocket during a consensual encounter
and reasonably suspects that it is a weapon of some type does not
justify a frisk of the citizen.
[3] I find no
authority for the proposition that a police officer engaged in a
consensual encounter with a citizen may frisk the citizen for
weapons without either some suspicion that the citizen may be
involved in criminal activity or some duty to remain on the scene
to fulfill other law enforcement responsibilities. Thus, Deputy
Bolen’s frisk of Reittinger, based solely upon the fact that
the deputy suspected he might have a weapon, was not a reasonable
search as

required by the Fourth Amendment. I would hold
that because the frisk violated the Fourth Amendment, the trial
court erred in not suppressing the seized smoking device that
contained marijuana residue. I would reverse the conviction.

The majority holds that the frisk for weapons
occurred during a consensual encounter in which the deputy was
attempting to persuade Reittinger to consent to a search of his
vehicle for weapons or contraband. The deputy conceded that when
he requested to search the van, he had no reason to suspect that
the van contained or that Reittinger possessed weapons or
contraband. In order to justify the frisk of Reittinger during
the consensual encounter, the majority attempts to link the frisk
to the original traffic stop by characterizing the consensual
encounter as a seamless event that "flows immediately"
from the lawful traffic stop. I respectfully disagree with the
majority’s characterization of circumstances and the
consequences of that characterization. If the encounter, during
which the deputy made three separate requests to search
Reittinger’s van, was part of the traffic stop because the
events "flow[ed] immediately into a consensual
encounter," then, as Judge Benton asserts in his dissent,
Reittinger could not have felt free to leave during this
continuation of the traffic stop; thus, the continued detention
and frisk of Reittinger were both illegal. For the majority to
reach this result by simply suggesting the frisk was part of the
traffic stop which "flows immediately into a consensual
encounter" obliterates the distinction between a consensual
encounter and a lawful detention based on reasonable suspicion or
probable cause of criminal activity. A motorist has the right to
be free of law enforcement intrusion when he or she is no longer
reasonably suspected of being involved in criminal activity.
However, although I reject the majority’s utilization of the
"flows immediately into a consensual encounter"
rationale, I accept the majority’s ultimate conclusion that
the frisk occurred during a consensual encounter.
[4]

The Terry decision emphasized that
courts must give judicial "approval of legitimate and
restrained investigative conduct undertaken on the basis of ample
factual justification," but cautions that courts must be
mindful of the "traditional responsibility to guard against
police conduct . . . which trenches upon personal
security without the objective evidentiary justification which
the Constitution requires." Terry, 392 U.S. at 15. I
am not unmindful of the fact that police officers confront armed
and dangerous people almost daily. They are constantly subject to
personal harm and loss of life. Not surprisingly, a traffic stop
is one of the most dangerous duties performed by a police
officer. See Pennsylvania v. Mimms, 434 U.S. 106,
118-19 (1977). Although the right of a police officer to protect
himself or herself from an armed citizen must be accorded high
priority, a police officer is not entitled to frisk a citizen
during a consensual encounter merely because the person is
suspected of being armed and dangerous. See 4 Wayne R.
LaFave, Search and Seizure Sect. 9.5(a), at 245-70
(3d ed. 1996).

The cases relied upon by the majority do not
provide such authority. In Bethea v. Commonwealth, 245 Va.
416, 420, 429 S.E.2d 211, 213 (1993), the defendant, who was a
passenger in a car stopped for a traffic infraction, was lawfully
frisked because he was being lawfully detained and his
"bizarre" behavior reasonably caused the officer to be
"startled" and "scared" that the defendant
"might have had access to weapons." In Moore v.
Commonwealth
, 25 Va. App. 277, 286, 487 S.E.2d 864, 868-69
(1997), a police officer was required to remain in a
citizen’s presence while transporting the stranded
pedestrian in his cruiser off the interstate highway. Performance
of the officer’s duties required that he remain in the
citizen’s presence in a vulnerable situation. Similarly, in Welshman
v. Commonwealth
, 28 Va. App. 20, 32, 502 S.E.2d 122, 128
(1998) (en banc), the defendant, who was among a
group of bystanders, was lawfully detained during an arrest of
two persons observed making a drug sale; the lawful detention of
those who might aid and assist the persons being arrested
justified a protective frisk of the bystander for weapons. And,
in James v. Commonwealth, 22 Va. App. 740, 744-46, 473
S.E.2d 90, 92 (1996), a passenger who was frisked for weapons was
lawfully detained while the officers arrested the driver on a
felony warrant.

In each case, officers either lawfully detained
the defendant as part of a criminal investigation or traffic stop
or, in carrying out a police function, the officer was required
to remain in the citizen’s presence in a vulnerable
situation. In none of these cases was the defendant frisked
during a wholly consensual encounter without the added element of
the officer needing to remain in the defendant’s presence in
order to fulfill his or her duty. The fact that Deputy Bolen may
ask for consent to search and may lawfully remain on the scene
until the citizen responds to his request is of no moment. The
question is not whether the officer had the right to be there; it
is whether the officer had the duty or responsibility to be there
and the commensurate right to protect his or her safety. An
officer may have the right to engage any citizen in public in a
consensual encounter, but the officer may not, in these
circumstances, frisk the citizen merely because the officer
reasonably fears for his or her safety.

An officer’s protective frisk for weapons
is an intrusion upon an individual’s personal privacy and is
itself a "seizure" that implicates the Fourth
Amendment. See Terry, 392 U.S. at 16-19; Toliver
v. Commonwealth
, 23 Va. App. 34, 36, 473 S.E.2d 722, 724
(1996). The determination as to the reasonableness of a stop or
seizure 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, the Supreme Court held that 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 armed and presently
dangerous.’" Lansdown v. Commonwealth, 226 Va.
204, 209, 212, 308 S.E.2d 106, 110, 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 v.
Williams
, 407 U.S. 143, 146 (1972) ("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
asserts, 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. An officer acts unreasonably by conducting a protective
frisk when the officer has unnecessarily placed himself or
herself in a precarious situation by initiating or continuing a
baseless encounter with an individual whom he or she considers
armed and dangerous. See 4 LaFave, supra
Sect. 9.5(a), at 246-47. Thus, consistent with the commands
of the Fourth Amendment, 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 or may be also engaged in criminal activity.
[5] 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 4 LaFave, supra,
Sect. 9.5(a), at 247. An officer may not justify a
protective search by using legitimate safety concerns to
bootstrap the lack of 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.
[6] In order to conduct a protective frisk under 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 duties to investigate suspected criminal activity
or to protect the public safety. See 4 LaFave, supra,
Sect. 9.5(a), at 247.

Once Deputy Bolen had completed the
investigation of Reittinger’s defective equipment violation,
he was no longer required, by virtue of his duties, to continue
an investigation or to secure the safety of citizens. Bolen
testified that after he completed the headlight investigation, he
did not suspect that Reittinger was otherwise engaged in criminal
activity. Bolen lawfully requested permission to search
Reittinger’s vehicle, a question he "commonly ask[s] people [after] a traffic stop." Assuming Bolen had a reason
to suspect that Reittinger may have been armed, Bolen’s
frisk violated the Fourth Amendment because, at the time of the
frisk, his duties did not require him to remain in
Reittinger’s presence to investigate crime or to protect
public safety. Because the frisk violated the Fourth Amendment,
the evidence should have been suppressed. Accordingly, I
respectfully dissent.


Benton, J., dissenting.

I substantially concur in the dissenting
opinion by Coleman, J., except footnote 3, and I concur in his
conclusion that the trial judge erred in failing to suppress the
evidence. I disagree, however, with the views expressed in both
the majority opinion and footnote 3 of the dissenting opinion
that Christopher John Reittinger was not unlawfully seized when
the officer began his inquiry about drugs and guns.

"[S]topping an automobile and detaining
its occupants constitute 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
deputy told Reittinger he was "free to go," the deputy
asked Reittinger "if he had any drugs or weapons in the
vehicle." This inquiry concerning the drugs and weapons was
an unconstitutional extension of the original traffic stop.
Although the reason for the initial stop had ended, the deputy
continued the detention by making inquiries unrelated to the
initial stop.

I would uphold the trial judge’s finding
that "[a]t that point the reason for the stop was resolved,
the investigation was complete and the deputy had no articulable
reason or suspicion to further detain [Reittinger]." As the
trial judge ruled, "[a] reasonable person . . .
upon immediately being subjected to a new and unrelated inquiry
would conclude his detention continued . . . and
the reasonable inference to be drawn from [Reittinger] voluntarily exiting his vehicle is that [Reittinger] concluded he
was not free to leave." Indeed, the deputy’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 (1983); see also
Payne v. Commonwealth, 14 Va. App. 86, 89, 414 S.E.2d 869,
870 (1992) (noting "[t]he ‘principle embodied by the
phrase "free to leave" means the ability to ignore the
police and to walk away from them,’ to ‘"feel free
to decline the officers’ requests or otherwise terminate the
encounter."’" (citation omitted)). Supporting the
trial judge’s finding is the absence of evidence that the
deputy had returned Reittinger’s vehicle registration when
he began the inquiry about the drugs and weapons. That factor
distinguishes this case from United States v. Sullivan,
138 F.3d 126 (4th Cir. 1998), cited in both the majority opinion
and footnote 3 of the dissenting opinion.

The deputy’s immediate transition into the
inquiry was so seamless that a reasonable person would not have
believed the initial seizure had ended. See Royer,
460 U.S. at 502-03. An officer cannot free him or herself of a
detainee’s constitutional protections by simply stating that
the detainee is "free to go" if the officer’s
subsequent words or conduct convey a contrary message. Therefore,
I would hold that the inquiry concerning the drugs and weapons
unlawfully extended the seizure, because the deputy had completed
the equipment investigation. The deputy’s actions subjected
Reittinger 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. See
Toliver v. Commonwealth, 23 Va. App. 34, 37, 473 S.E.2d
722, 724 (1996) (Benton, J., concurring).

For these reasons, and for the reasons
expressed by Coleman, J., in the text of his dissenting opinion,
I would reverse the trial judge’s refusal to suppress the
evidence.

 

 

FOOTNOTES:

[1] Judge Overton
participated in the hearing and decision of this case prior to
the effective date of his retirement on January 31, 1999 and
thereafter by his designation as a senior judge pursuant to Code
Sect. 17.1-401, recodifying Code Sect. 17-116.01:1.

[2] Because the
deputy had a duty to insist upon the initial confrontation, the
consensual encounter immediately following it was not the type
that concerned Justice Harlan in his concurring opinion in Terry,
392 U.S. at 32-33. This deputy did not have the right to avoid
the defendant. He did not simply walk up to and begin questioning
a citizen without any suspicion of criminal activity.

[3] See Stanley
v. Commonwealth
, 16 Va. App. 873, 876-77, 433 S.E.2d 512,
514-15 (1993) (holding that it was unreasonable for the officers
to suspect that the bulge in the pocket of a motor scooter
operator was a weapon). In the present case, the officer stated
he frisked Reittinger for "his safety" and because he
thought the bulge might be a weapon; however, the officer
testified at trial that he did not believe Reittinger was armed
and dangerous.

[4] Until the frisk,
the encounter was not a "seizure" that implicated the
Fourth Amendment. Even though a citizen may feel some trepidation
during a consensual encounter with a police officer and may be
reluctant to walk away, 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 after 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 or privacy as would
under the [Fourth Amendment] require some particularized and
objective justification." United States v. Mendenhall,
446 U.S. 544, 554 (1980).

[5] 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).

[6] The decision in 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
628-29. 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. at 628.

Scroll To Top