New information justified second frisk for firearm

The Court of Appeals of Virginia has upheld the conviction of a defendant who refused a second frisk after the first did not find a firearm because witnesses then identified him as the individual who brandished the firearm in the store and described the weapon to police.

The defendant argued that the second frisk was unjustified because the police were acting solely on a hunch based on their failure to find the firearm and his refusal to be frisked again.

But Chief Judge Marla Graff Decker said “it was reasonable for the officers to believe that [the defendant] had a firearm and [the officer’s] cursory initial pat down simply failed to locate it.”

“Given that successive Terry stops or detentions are permissible when an officer learns new information, it logically follows that successive pat downs are permissible if the officer receives new information supporting a reasonable suspicion, under the totality of the circumstances, that the individual may be armed and dangerous,” Decker wrote.

Judges Randolph A. Beales and Clifford L. Athey Jr. joined Decker in affirming Hollingsworth v. Commonwealth (VLW 025-7-337).

Attorneys for the parties did not respond to requests for comment.

The second frisk

Thomas Wesley Hollingsworth and another man matched the descriptions given to Virginia Beach police officer Stanley Brooks, who was first to arrive at the scene of a potential robbery involving a firearm at a convenience store. No other persons or vehicles matched the description.

Brooks approached the men and frisked Hollingsworth, while his partner frisked the other man. When frisks did not produce a firearm, Hollingsworth gave the officers permission to search his vehicle. Police found no firearm there or in the surrounding area.

When officers Donny Luu and Austin Chase took over the investigation, Brooks told them he had not interviewed the store clerks. The clerks informed Luu that Hollingsworth had displayed a firearm and possibly demanded money from a customer who had left the store.

While the clerks gave their statements, Chase asked to conduct a more thorough frisk of Hollingsworth and his companion. The companion consented, but Hollingsworth refused until the police insisted based on the clerks’ confirmation that he brandished a firearm.

During the second frisk of Hollingsworth, Chase quickly found a firearm matching the one described by the clerks. After the court denied his motion to suppress the firearm, Hollingsworth tendered a conditional plea of guilty to illegal possession of a firearm by a felon.

This appeal followed.

Certainty not required

Decker said that the parameters of what law enforcement is permitted to do while investigating flow from the lawfulness of the stop or seizure.

“If the officer reasonably suspects that a stopped individual may be armed and dangerous, ‘a limited protective search’ of the individual being detained is reasonable under the Fourth Amendment,” the judge explained, citing McArthur v. Commonwealth.

However, Decker pointed out that an officer was not required to be absolutely certain that the individual was armed; rather, the issue was whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

“We have no doubt that the situation here presented such circumstances, on the heels of a possible armed robbery with suspects on the scene and the whereabouts of a gun unknown,” she said, noting that Hollingsworth rightly did not dispute the reasonableness of the initial frisk.

Additional facts

Hollingsworth contended that the second frisk was unjustified because the police had no new information and only a hunch that he had a firearm based on his refusal to be frisked again and their failure to find a firearm elsewhere.

The panel disagreed, finding that the “particular facts here and the applicable law refute these arguments.”

“The officers were privy to additional, very relevant facts, and the totality of the circumstances at the time of the second pat down provided reasonable suspicion to support the officers’ actions,” Decker said.

Looking to Jackson v. Commonwealth, the judge noted Virginia’s recognition that successive investigatory Terry stops of a possible suspect are not per se unlawful.

“If police find nothing illegal during an initial stop, ‘they are not required to ignore the facts that [first] triggered’ the investigation,” Decker wrote, adding that the “test and standard are straightforward.”

“A second investigatory stop or detention must be based on new information that, ‘in conjunction with’ prior information, creates reasonable suspicion anew,” the judge said. “And ‘[e]ach instance of police conduct must be judged for reasonableness in light of the particular circumstances.’”

Disinterested citizen-tipster

The U.S. Supreme Court in Alabama v. White made clear that an officer need not personally observe suspicious behavior that prompts a stop or pat down – a tip may contribute to the totality of the circumstances that provide reasonable suspicion, viewed at the time of the police conduct.

Decker acknowledged that “the tipster’s ‘veracity’ and ‘basis of knowledge’ are relevant considerations in determining how much weight may be given to it in the reasonable-suspicion analysis.”

“Applying this balancing test in the context of a ‘disinterested’ citizen-tipster, one who is either an eyewitness or a victim, permits police to ‘give more weight to the . . . information than they would to information from a “criminal” informer, whose motives are less likely to be pure,’” she said.

“In fact, information received from such a person may, by itself, furnish ‘sufficient indicia of reliability to provide an officer with reasonable suspicion to make an investigatory stop’ and perform a weapons pat down,” the judge advised.

Here, Brooks first frisked Hollingsworth for weapons before having spoken with the store clerks, who “were at the very least third-party eyewitnesses to the brandishing offense,” Decker noted.

“At the time of the initial contact and pat down, therefore, Brooks had limited information,” the judge found. “At the onset, he learned from the police dispatcher that a ‘dispute with a potential robbery’ had occurred at the store.”

Understandable concern

The panel said it was understandable that the new information caused the officers to be concerned about weapons.

“Brooks had general descriptions of two suspects and their silver SUV, but that was all he knew,” Decker said. “Hollingsworth and his companion were the only two people there, and they matched the descriptions given.”

Although Brooks testified that his initial frisk of Hollingsworth was not thorough, Chase honored Hollingsworth’s refusal of a second frisk before receiving any new information.

“But after the store clerks specifically identified Hollingsworth as the individual who brandished the firearm in the store and described the weapon as one with an extended magazine, Chase insisted on patting down Hollingsworth a second time,” Decker said. “This second frisk prompted by the added information yielded the firearm almost immediately.”

Not only did the store clerks confirm that Hollingsworth did brandish a gun, they described it.

“In conjunction with the fact that the firearm was still missing, Chase reasonably suspected that Hollingsworth, who was identified as the brandisher, remained armed and presently dangerous at the scene,” Decker opined.

Therefore, to quickly confirm or dispel that suspicion, the panel held that it was entirely reasonable for Chase to pat Hollingsworth down under these circumstances.

“The Fourth Amendment simply did not require Chase to risk either being shot while continuing to investigate the attempted robbery or allowing Hollingsworth to orchestrate an armed escape,” Decker concluded.