                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Petty and Senior Judge Willis
Argued at Chesapeake, Virginia


WILLIAM JOHN MILLER
                                                                MEMORANDUM OPINION * BY
v.        Record No. 0326-08-1                                  JUDGE JERE M. H. WILLIS, JR.
                                                                    NOVEMBER 4, 2008
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                  Everett A. Martin, Jr., Judge

                    Christian L. Connell for appellant.

                    Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell,
                    Attorney General, on brief), for appellee.


          William John Miller appeals his conviction for possession of cocaine with intent to

distribute in violation of Code § 18.2-248. He contends the trial court erred by failing to grant his

motion to suppress evidence seized from his person, arguing that the evidence was obtained as the

result of an illegal pat-down search. Finding no error, we affirm the judgment of the trial court.

                                                Background

          “Under familiar principles of appellate review, we view the evidence and all reasonable

inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the

party that prevailed below.” Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d 876, 877

(2003).

          On November 15, 2006 at approximately 3:00 a.m., Officer Keenan Gilligan responded to a

“narcotics-in-progress” call, reporting to a motel. As he approached the motel, Gilligan saw Miller


          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
standing in the middle of the motel parking lot. Gilligan testified that several police vehicles drove

into the parking lot, passing Miller. As Gilligan drove into the parking lot, he had direct eye contact

with Miller, who “almost immediately” started to walk toward the exit of the parking lot at a “very

fast pace.” Gilligan stopped and asked Miller if he could talk to him. Miller said nothing, but he

walked back to the patrol vehicle. Gilligan asked Miller for proof of identification. Miller had

none. However, he provided his name, birth date, and social security number.

         Gilligan testified Miller was “fidgeting a lot.” He was constantly moving his hands and

shifting his weight from side to side, and he was “very nervous.” When Gilligan asked Miller what

he was doing in the motel parking lot, Miller responded that he had just been “dropped off” by

someone he could not name. Miller was also unable to say where he had been prior to arriving at

the parking lot or why he was standing in the parking lot. Miller acknowledged that he was not a

registered guest of the motel and that he had not notified motel personnel that he was a visitor at the

motel.

         Based on Miller’s answers and nervous demeanor, Gilligan asked Miller whether he

possessed any weapons, drugs, contraband, or anything he should be “worried about.” Miller

replied, “No.” He refused Gilligan’s request to search him. Gilligan then told Miller he was going

to pat him down “for officer safety.” Gilligan testified he was not searching “for anything,” but he

was “making sure [Miller] had no weapons or anything that could hurt [him] or any of the other

officers who were in the area.”

         Gilligan asked Miller to turn and place his hands on top of his head. Miller complied.

Gilligan asked Miller a second time whether he had any weapons. Miller started to reach for his

right pocket, responding that he had a knife. Miller put his hands back on top of his head, and

Gilligan told Miller he was going to retrieve the knife. When Gilligan reached into Miller’s pocket,

several blue plastic baggies containing crack cocaine fell from the pocket. Gilligan arrested Miller

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for possession of cocaine and searched him incident to the arrest, recovering a total of fifteen bags

of cocaine.

        The trial court denied Miller’s motion to suppress the evidence, holding that Gilligan had

articulated his concern for officer safety, thereby justifying the pat-down search. Miller entered a

conditional guilty plea to the charge, reserving his right to appeal the denial of the motion to

suppress.

                                               Analysis

                        A defendant’s claim that evidence was seized in violation
                of the Fourth Amendment presents a mixed question of law and
                fact that we review de novo on appeal. Murphy v.
                Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002);
                Bolden v. Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704
                (2002); McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d
                541, 545 (2001); see also Ornelas v. United States, 517 U.S. 690,
                691, 699 (1996). In making such a determination, we give
                deference to the factual findings of the circuit court, but we
                independently determine whether the manner in which the
                evidence was obtained meets the requirements of the Fourth
                Amendment. Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain,
                261 Va. at 490, 545 S.E.2d at 545; Bass v. Commonwealth, 259
                Va. 470, 475, 525 S.E.2d 921, 924 (2000). The defendant has the
                burden to show that, considering the evidence in the light most
                favorable to the Commonwealth, the circuit court’s denial of his
                suppression motion was reversible error. Bolden, 263 Va. at 470,
                561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at 545;
                Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731
                (1980).

Cost v. Commonwealth, 275 Va. 246, 250, 657 S.E.2d 505, 507 (2008).

        “[D]uring an investigative stop, a law enforcement officer may conduct a limited search

for concealed weapons if the officer reasonably believes that a criminal suspect may be armed

and dangerous.” Id. at 250-51, 657 S.E.2d at 507 (citing Terry v. Ohio, 392 U.S. 1, 27 (1968))

(other citations omitted).




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       Miller concedes the consensual nature of the initial stop. He contends only that the pat

down for weapons was not supported by a reasonable belief that he might be armed and

dangerous.

       To conduct a pat-down search, the officer “does not have to be absolutely certain that the

person is armed.” Simmons v. Commonwealth, 217 Va. 552, 556, 231 S.E.2d 218, 221 (1977).

Rather, if a “reasonably prudent man in the circumstances” would similarly believe that “his

safety or that of others was in danger,” the search is justified. Terry, 392 U.S. at 27.

       In determining whether the officer acted reasonably, the court should consider all

relevant factors, including the characteristics of the area in which the stop occurred, the time of

day, the conduct and demeanor of the suspect, and the type of offense that the officer was

investigating. United States v. Bull, 565 F.2d 869, 870-71 (4th Cir. 1977). See also Williams v.

Commonwealth, 4 Va. App. 53, 66-67, 354 S.E.2d 79, 86-87 (1987).

       Miller argues that his nervous behavior and his conduct of walking quickly toward the

exit of the parking lot did not justify a pat down for weapons. However, in addition to that

conduct, Gilligan also testified that his encounter with Miller took place in the parking lot at

3:00 a.m. when officers were responding to a “narcotics-in-progress” call. “The relationship

between the distribution of controlled substances . . . and the possession and use of dangerous

weapons is . . . well recognized.” Logan v. Commonwealth, 19 Va. App. 437, 445, 452 S.E.2d

364, 369 (1994) (citations omitted). See also Williams, 4 Va. App. at 67, 354 S.E.2d at 87

(“[S]uspicion of narcotics possession and distribution . . ., standing alone, gives rise to an

inference of dangerousness . . . .”).

       Furthermore, Miller admitted he was not a registered guest at the motel, and he gave no

credible account for his reason for being there or how he came to be in the parking lot. Gilligan

testified that he patted down Miller for his safety and for the safety of other officers at the scene.

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A reasonably prudent police officer, under these circumstances, would have reacted similarly for

his protection and the protection of others.

       For the foregoing reasons, we hold the trial court did not err in denying Miller’s motion

to suppress. We, accordingly, affirm his conviction.

                                                                                   Affirmed.




                                               -5-
Kelsey, J., concurring.

       I agree with the majority that the trial court correctly denied Miller’s suppression motion.

I write separately only to emphasize the importance of Miller’s admission that he had a knife.

       When officers say they intend to pat down a suspect despite his lack of consent, the

announcement alone constitutes an assertion of authority for purposes of a Terry stop. See

Bandy v. Commonwealth, 52 Va. App. 510, 517, 664 S.E.2d 519, 522 (2008); Walker v.

Commonwealth, 42 Va. App. 782, 790, 595 S.E.2d 30, 34 (2004). A suspect submitting to such

an assertion of authority has been seized — thus requiring, at the moment of the announcement,

the officer to reasonably believe the suspect may be engaged in criminality.

       On the other hand, a Terry pat down occurs only when the officer actually performs the

pat down. See, e.g., State v. Wilks, 2004 Ohio 4046 (Ohio Ct. App. 2004) (holding that while

the officer’s statement was a “‘show of authority’ it was not a pat down until he actually

conducted it”). Only then must the officer reasonably believe the suspect is armed and

dangerous. Cf. United States v. Steele, 195 F. Supp. 2d 202, 206 (D. Me. 2002) (“Although

Defendant argues that Officer Wilson’s decision to search him was made before the discovery of

the pocketknife, the court assesses the information available to the officers at the time the frisk

was actually performed.”). Consequently, absent egregious circumstances, a “premature

announcement of an intent to perform a pat-down does not debilitate the officer so that he will

not later be able to perform a pat-down should sufficient facts come to light.” State v. Smith,

637 A.2d 158, 168 (N.J. 1994). This principle parallels the general rule that Fourth Amendment

violations should be measured “by what the officer did rather than what he said.” 4 Wayne R.

LaFave, Search & Seizure § 9.2(e), at 320-21 (4th ed. 2004).

       In this case, when Officer Gilligan announced his intention to conduct a pat down, Miller

responded by lifting his hands and submitting to the officer’s assertion of authority. Before the


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officer ever touched him, however, Miller stated he possessed a knife and reached for his pocket

to retrieve it. Only then did the officer physically seize the knife. Miller’s admission, therefore,

fully confirmed the reasonableness of the officer’s earlier suspicion and rendered the actual pat

down invulnerable to a constitutional challenge. See, e.g., State v. King, 2004 Ohio 2598 n.3

(Ohio Ct. App. 2004) (noting the appellant’s admission “to having the weapon in his pocket

before the commencement of the pat-down” itself brought the search within the permissible

“scope of the Fourth Amendment”).




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