Although defendant appeared nervous and shaky when police questioned him after stepping out of their unmarked Chevy Tahoe at 5:45 p.m. in a public parking lot while on routine patrol, defendant’s demeanor and his disregard of an officer’s instructions to keep his hands out of his pockets did not give the officers a reasonable articulable suspicion to justify a pat-down search that disclosed a weapon; the Court of Appeals says the gun should have been suppressed and reverses defendant’s conviction under Va. Code § 18.2-308.2.
Appellant contends he was seized by Officer Dyer and Detective Adams when they approached him in the parking lot and started asking him questions. The commonwealth argues the encounter was initially consensual. Appellant did not argue in his motion to suppress that the initial encounter was a seizure. Instead, he contended he was cooperating with police during a consensual encounter, and without evidence of criminal activity or his being armed and dangerous, this encounter did not provide justification for a pat-down. Likewise, at the suppression hearing, appellant argued that once Officer Dyer conducted the pat-down, at this point the encounter was no longer consensual. We will not consider on appeal a challenge to the consensual nature of the initial encounter.
Appellant also contends he was unlawfully seized once Officer Dyer interlaced his hands and placed them behind his head, in preparation for a pat down for weapons, as there was no reasonable, articulable suspicion that he was engaged in criminal activity and armed and dangerous.
We hold appellant was seized when the officer told him he would be conducting a pat-down search and placed appellant’s hands, interlaced, behind his head. At that point, based on the facts in this case, a reasonable person would not have believed he was free to leave. In the context of this case, we need only determine whether Officer Dyer had a reasonable articulable suspicion that appellant possessed a concealed weapon, thus rendering him potentially armed and dangerous.
We find Officer Dyer acted unlawfully when he seized appellant in order to conduct the pat-down search. In the instant case, the facts did not provide an objective reasonable basis for suspecting appellant possessed a concealed weapon at the time of the seizure, even when giving due weight to the inferences drawn from the facts by local law enforcement officers. Officer Dyer testified that appellant was “very interested” in the police unmarked Tahoe and kept looking back at it as he walked across the parking lot. When the officer pulled into the lot, appellant started to walk faster, “almost as if he was going to flee,” and even walked through a section of water and mud. These actions occurred before the officer got out of his unmarked Chevy Tahoe and approached appellant.
As the officer engaged appellant in a conversation, appellant walked back over to the officer, provided his correct name and answered Dyer’s question about where he was going. According to Officer Dyer, appellant seemed “extremely nervous,” was “visibly shaking” and “kind of stumbling and stammering over his words.” He did not specifically answer Dyer’s questions. Instead, he repeatedly told the officer he needed to go home to his children. Appellant twice disregarded the officer’s instruction not to place his hands into his pockets. Though these circumstances may have provided the officer with a hunch that appellant might have been carrying a concealed weapon, they alone did not establish the reasonable suspicion to justify a seizure in order to conduct a pat-down search. Although appellant disregarded the instruction to keep his hands out of his pockets, there was no indication his pocket contained a weapon or that he was concealing a weapon within his coat. The officer testified that he did not observe any bulges on appellant’s clothing nor did the clothing seem unusual for the weather and time of year. The encounter cook place at 5:45 p.m. and appellant was walking through a public parking lot. There was no indication he was trespassing.
Appellant’s admission that he had a weapon came only after he was seized. His nervous, distracted behavior, distracted responses to questions while focusing instead on getting to his children, and disregard of the officer’s instructions did not support a reasonable suspicion that appellant possessed a weapon.
The trial court erred in denying appellant’s motion to suppress evidence. In light of his condition guilty plea under Va. Code § 19.2-254, we remand to afford appellant a chance to withdraw his plea.
Reversed and remanded.
Minter v. Commonwealth (Decker) No. 1739-13-1, Dec. 2, 2014; Portsmouth Cir. Ct. (Morrison) Chad G. Dorsk for appellant; Robert H. Anderson III, Sr. AAG, for appellee. VLW 014-7-356(UP), 15 pp.