                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Clements
Argued at Salem, Virginia


JOEL ROY HAMM
                                                                MEMORANDUM OPINION* BY
v.        Record No. 2926-05-3                                JUDGE JEAN HARRISON CLEMENTS
                                                                       APRIL 3, 2007
COMMONWEALTH OF VIRGINIA


                         FROM THE CIRCUIT COURT OF PATRICK COUNTY
                                    Martin F. Clark, Jr., Judge

                    Stacie A. Cass, Assistant Appellate Defender (Office of the
                    Appellate Defender, on briefs), for appellant.

                    Susan M. Harris, Assistant Attorney General (Robert F. McDonnell,
                    Attorney General, on brief), for appellee.


          Joel Roy Hamm was convicted on his conditional plea of guilty of possessing

methamphetamine, in violation of Code § 18.2-250.1 On appeal, he contends the trial court erred

in denying his motion to suppress the methamphetamine found on his person by the police as the

result of a search that violated his Fourth Amendment rights. We agree and reverse the trial

court’s judgment and Hamm’s conviction.

          As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.



          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
          1
          Appellant was also convicted of contempt of court for failing to report to his probation
officer, in violation of Code § 18.2-456. That matter is not before us in this appeal.
                                        I. BACKGROUND

       The evidence relevant to this appeal is undisputed. On the night of September 23, 2004,

Investigator Katherine Layman and Officer Wilson went to 4024 Cherry Creek Road “to help

execute a search warrant” obtained by Investigator Garry Brown. Investigator Layman knew the

“location to be the residence of Joel Hamm.” She had been to the residence before and knew

who Hamm was.

       The search warrant was issued “in relation to an offense . . . [of possession with] intent to

distribute methamphetamine” and authorized searching the “residence, curtilage, outbuildings,

and vehicles associated [with] 4024 Cherry Creek Road . . . [for] illegal drugs, scales, records,

and packaging associated [with] the [sale] of illegal drugs, and [for] weapons.” Investigator

Layman “had seen [the search warrant] in [Investigator] Brown’s hands at the office” but had not

read it and had not had “a chance to look at it at all.” Instead, she “just relied on Investigator

Brown telling [her], ‘I have a search warrant here. We are going to go to Hamm’s place and

we’re going to execute it.”

       Investigator Layman and Officer Wilson’s duty was “to go to the residence and see if . . .

Hamm would come outside.” Upon arriving at the residence after dark, they “sat in the driveway

with the headlights on.” Investigator Brown “was already there” conducting surveillance. When

“Hamm walked outside” with “a plate of food in his hand,” Investigator Layman and Officer

Wilson “exited the vehicle with weapons drawn, approached him, [and] told him that [they] had

a search warrant.” They were unable to show Hamm the warrant because they “did not have it.”

       Officer Wilson, who was standing in front of Hamm, was then called away “to help with

entry” into the residence. Investigator Layman, who was standing behind Hamm, asked Hamm

“if he had anything on him.” Hamm did not respond. Without seeking Hamm’s consent,

Investigator Layman then “reached around in front of [Hamm] to feel his front pocket.” In

                                                 -2-
response, Hamm “twisted to his left.” When Investigator Layman then reached around in front

of Hamm on the other side and “tried to pat-down” his other front pocket, Hamm “twist[ed] to

the right.” Hamm continued to twist back and forth to avoid Investigator Layman’s attempts to

frisk him. He also “tri[ed] to stick his hands into his pockets” and “look[ed] around, not making

any comments.” “At that point, [Investigator Layman] got very concerned about what [Hamm]

had.” Based on her experience as a police officer, Hamm’s “movements indicated to

[Investigator Layman] that he was going to do something.” His efforts to avoid being frisked

“cause[d] concerns in [her] mind for [her] safety.” She thought “he might have a weapon on his

person.”

       Consequently, Investigator Layman “grabbed [Hamm’s] arms, handcuffed him behind his

back, [and] told him to get on his knees.” At that point, Officer Wilson returned, and

Investigator Layman started going through Hamm’s pockets. Investigator Layman removed a

Tylenol bottle, a lighter, a hypodermic needle, a pair of tweezers, a $20 bill, and a receipt from

his left front pocket and a screwdriver that was “sticking out” from his left rear pocket. After

patting Hamm’s left rear pocket and feeling something “hard” that she could not identify,

Investigator Layman pulled out a “regular size” metal spoon. Before removing the spoon,

Investigator Layman had “no idea what that item might be.” She could not “tell whether it was a

metal object” but felt “it could have been” a dangerous weapon.

       Residue on the spoon was later analyzed and discovered to be methamphetamine. Hamm

was indicted for possessing methamphetamine.

       Hamm moved to suppress the evidence seized during the search by Investigator Layman,

arguing it was obtained in violation of his Fourth Amendment rights. At the conclusion of the

suppression hearing, the trial court suppressed the hypodermic needle, Tylenol bottle, $20 bill,

and receipt, but denied Hamm’s motion to suppress the spoon, which the trial court found was a

                                                -3-
weapon. The trial court subsequently convicted Hamm on his conditional plea of guilty, and this

appeal followed.

                                          II. ANALYSIS

       On appeal, Hamm contends the evidence of the methamphetamine residue discovered on the

spoon in his pocket should have been suppressed as the fruit of an unconstitutional search because,

among other things, Investigator Layman did not have a reasonable suspicion that he was armed and

dangerous and, thus, lacked justification to frisk him for weapons. The Commonwealth responds

that the circumstances surrounding Investigator Layman’s encounter with Hamm provided the

officer with an adequate basis to frisk Hamm for weapons.2 We hold that the evidence of the

methamphetamine should have been suppressed because the circumstances preceding Investigator

Layman’s attempt to frisk Hamm did not create a reasonable suspicion that Hamm was armed and

dangerous.

       “In reviewing a trial court’s denial of a motion to suppress, ‘the burden is upon [the

appellant] to show that the ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.’” McGee v. Commonwealth, 25 Va. App. 193, 197,

487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265

S.E.2d 729, 731 (1980)). “‘Ultimate questions of reasonable suspicion and probable cause to

make a warrantless search’ involve questions of both law and fact and are reviewed de novo on

appeal.” Id. (quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)). Thus, while “[w]e are

bound by the trial court’s findings of historical fact unless ‘plainly wrong’ or without evidence to

support them and we give due weight to the inferences drawn from those facts by resident judges

and local law enforcement officers,” id. at 198, 487 S.E.2d at 261 (citing Ornelas, 517 U.S. at


       2
        The Commonwealth conceded at oral argument that Investigator Layman’s authority to
search Hamm did not arise directly from the search warrant itself but rather from the officer’s
reasonable belief that Hamm was armed and dangerous.
                                               -4-
699), “we review de novo the trial court’s application of legal standards such as reasonable

suspicion to the particular facts of the case,” McCracken v. Commonwealth, 39 Va. App. 254,

258, 572 S.E.2d 493, 495 (2002) (en banc). “Whether the Fourth Amendment has been violated

‘is a question . . . to be determined from all the circumstances.’” Reittinger v. Commonwealth, 260

Va. 232, 236, 532 S.E.2d 25, 27 (2000) (quoting Ohio v. Robinette, 519 U.S. 33, 40 (1996)).

               In assessing the propriety of the trial court’s ruling, we keep in mind
               that the [F]ourth [A]mendment does not proscribe all searches and
               seizures, only those that are “unreasonable.” Terry v. Ohio, 392 U.S.
               1, 9 (1968). Whether a search or seizure is unreasonable is
               determined by balancing the 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. United States v. Brignoni-Ponce, 422 U.S.
               873, 878 (1975). In striking this balance in Terry v. Ohio, the
               Supreme Court concluded that an officer may conduct a pat[-]down
               search of a suspect’s outer clothing if [s]he can “‘point to specific
               and articulable facts which, taken together with rational inferences
               from those facts,’” reasonably lead [her] to conclude, “in light of
               [her] experience, that ‘criminal activity may be afoot’ and that the
               suspect ‘may be armed and presently dangerous.’” Lansdown v.
               Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110 (1983)
               (quoting Terry, 392 U.S. at 21, 30), cert. denied, 465 U.S. 1104
               (1984).

Stanley v. Commonwealth, 16 Va. App. 873, 874-75, 433 S.E.2d 512, 513 (1993).

       In the context of the execution of a valid search warrant, the balancing of these

countervailing concerns may permit a police officer to temporarily detain an occupant of the

residence to be searched while the warrant is executed,3 Williams v. Commonwealth, 4 Va. App.

53, 64-65, 354 S.E.2d 79, 85-86 (1987), and, if circumstances warrant, to frisk the properly

detained occupant for concealed weapons, id. at 66-67, 354 S.E.2d at 86-87. Such a “limited

pat-down search for weapons” is warranted only if the officer “reasonably believes that the

suspect might be armed and dangerous.” Id. at 66, 354 S.E.2d at 86.


       3
         For purposes of this appeal, we will assume, without deciding, that Hamm’s detention
while the search warrant for the premises was being executed was proper.
                                               -5-
       “As the foregoing suggests, the authority to conduct a pat-down search does not

automatically accompany a [valid] . . . detention. Only where the officer can ‘point to particular

facts from which [s]he reasonably inferred that the individual was armed and dangerous’ is [s]he

justified in searching for weapons.” Id. at 66-67, 354 S.E.2d at 86 (citations omitted) (quoting

Sibron v. New York, 392 U.S. 40, 64 (1968)). “In determining whether an officer’s belief is

reasonable, ‘due weight must be given, not to [the officer’s] inchoate and unparticularized

suspicion or “hunch,” but to the specific reasonable inferences which [s]he is entitled to draw

from the facts in light of [her] experience’” as an officer. Servis v. Commonwealth, 6 Va. App.

507, 515, 371 S.E.2d 156, 160 (1988) (quoting Terry, 392 U.S. at 27).

                       “Among the circumstances to be considered in connection
               with this issue are . . . the time of the [detention], whether late at
               night or not, as well as any suspicious conduct of the person
               accosted such as an obvious attempt to avoid officers or any
               nervous conduct on the discovery of their presence.” United States
               v. Bull, 565 F.2d 869, 870-71 (4th Cir. 1977), cert. denied, 435
               U.S. 946 (1978). To this, we add the character of the offense
               which the individual is suspected of committing as a circumstance
               which the officer may consider. See Terry, 392 U.S. at 28.

Williams, 4 Va. App. at 67, 354 S.E.2d at 86-87.

       The dispositive question before us, then, is whether Investigator Layman “articulated

specific reasons that would support a reasonable belief that [Hamm] was armed and dangerous.”

Stanley, 16 Va. App. at 876, 433 S.E.2d at 514. The Commonwealth argues that Investigator

Layman “was able to point to” several specific facts from which she could reasonably infer that

Hamm was armed and dangerous:

               Specifically, she was on Hamm’s property at dark to execute a
               search warrant of his residence for methamphetamine. She was
               alone with Hamm as [Officer] Wilson was called to “help with
               entry into the [residence].” Additionally, Hamm, with his back to
               Layman, did not respond when she asked him whether he had
               “anything on him.” And, when Layman reached around Hamm’s
               body, both to his right and left, to pat him down, Hamm twisted his

                                               -6-
               body to prevent her touch, all the while “looking around,” saying
               nothing and going into his pockets.

       There are two significant flaws in the Commonwealth’s argument. First, nothing in the

record indicates that Investigator Layman knew that the search warrant she was helping to

execute at Hamm’s residence involved methamphetamine or any other illegal drugs or weapons.

To the contrary, the record establishes only that the warrant was obtained by Investigator Brown,

that Investigator Layman “had seen [the search warrant] in [Investigator] Brown’s hands at the

office” but had not read it and had not had “a chance to look at it at all,” and that the only

information she received from Investigator Brown regarding the warrant was that he had a search

warrant and they were “going to go to Hamm’s place and . . . execute it.” Additionally, her sole

articulated responsibility in helping Investigator Brown execute the warrant was “to go to the

residence and see if . . . Hamm would come outside.” Moreover, although Investigator Layman

testified that she had been to Hamm’s residence before and knew who Hamm was, she did not

explain what insight those circumstances provided her in connection with this case. The totality

of such scant evidence, even when viewed in the light most favorable to the Commonwealth,

does not allow the reasonable inference that Investigator Layman knew the search warrant was to

search Hamm’s residence for illegal drugs and weapons. Thus, while an officer’s awareness that

the warrant being executed is to search a residence for illegal drugs and weapons may in some

cases permit the officer to reasonably infer that the occupant of the residence being detained is

armed and dangerous, see, e.g., Williams, 4 Va. App. at 67, 354 S.E.2d at 87, no such inference

reasonably arises from the circumstances articulated here.

       Second, in arguing that Investigator Layman could point to Hamm’s twisting movements

“to prevent [the officer’s] touch” and his “‘looking around,’ saying nothing and going into his

pockets” as grounds to reasonably infer Hamm was armed and dangerous, the Commonwealth

relies on circumstances that occurred after the officer’s efforts to frisk Hamm had already
                                                 -7-
commenced. The Commonwealth expressly concedes Hamm’s actions were in direct response

to Investigator Layman’s attempt “to pat him down.” Plainly, a suspect’s attempt to avoid a frisk

for weapons may not be used by the officer to retroactively justify the frisk. The officer must be

able to reasonably conclude the suspect is armed and dangerous before commencing the frisk.

Indeed, while an “officer [who] has lawfully detained an individual, ‘. . . is “authorized to take

such steps as [are] necessary to protect [her] personal safety and to maintain the status quo

during the course of the [detention],”’” Welshman v. Commonwealth, 28 Va. App. 20, 34, 502

S.E.2d 122, 128 (1998) (en banc) (quoting Servis, 6 Va. App. at 519, 371 S.E.2d at 162 (quoting

United States v. Hensley, 469 U.S. 221, 235 (1985))), “‘[b]efore [the officer] places a hand on

the person of a citizen in search of [weapons], [s]he must have constitutionally adequate,

reasonable grounds for doing so,’” Lett v. Commonwealth, 7 Va. App. 191, 195, 372 S.E.2d 195,

197 (1988) (emphasis added) (quoting Sibron, 392 U.S. at 64). To hold otherwise would permit

the police to attempt to conduct illegal searches and then use the suspect’s efforts to avoid the illegal

search as a basis for justifying the search. Consequently, notwithstanding the Commonwealth’s

claim to the contrary, Investigator Layman may not point to Hamm’s actions in response to the

officer’s attempt to frisk him as a valid basis to reasonably infer that Hamm was armed and

dangerous before the officer’s efforts to frisk him commenced.4

        Neither the remaining facts that the Commonwealth claims Investigator Layman could

point to—that it was dark, that she was alone with Hamm during the search warrant’s execution,

and that Hamm did not respond when asked “if he had anything on him”— nor the other

circumstances of this case support the conclusion that Investigator Layman had a reasonable

suspicion that Hamm was armed and dangerous before she attempted to frisk him. Indeed,



        4
         We further note that, in remaining silent and trying to avoid Investigator Layman’s
attempt to pat him down, Hamm was simply exercising his constitutional rights.
                                               -8-
Investigator Layman did not even articulate such a suspicion to the trial court. In fact, she

expressly testified that she became concerned that Hamm might be armed and dangerous only

after he avoided her attempt to frisk him. Moreover, she articulated no basis for believing,

before she attempted to frisk Hamm, that he was armed and dangerous. She did not testify that

she saw the screwdriver or any other potential weapon on Hamm’s person prior to trying to pat

down Hamm’s front pockets. Similarly, she did not testify that Hamm acted suspiciously or

attempted to avoid the officers prior to the attempted pat down. She did not testify that the fact

that it was dark, that she was alone with Hamm, and that Hamm ignored her inquiry whether “he

had anything on him” led her to conclude, in light of her experience as an officer, that Hamm

was armed and dangerous. We are aware of no case that concludes that such facts, standing

alone, give rise to a reasonable suspicion that the person being detained is armed and dangerous.

In short, we conclude that Investigator Layman failed to articulate or otherwise point to specific

facts or reasons that would support a reasonable, timely belief that Hamm was armed and

dangerous.

       We hold, therefore, that, at the time the officer attempted to pat Hamm down, she lacked a

reasonable, articulable suspicion that Hamm was armed and dangerous.5 Accordingly, the

methamphetamine subsequently discovered on the spoon in Hamm’s pocket was the fruit of an

unconstitutional search and should have been suppressed.




       5
          Hamm also argues that, even if Investigator Layman’s decision to pat him down for
weapons was justified, she exceeded the scope of a protective pat-down search by removing the
spoon from his back pocket without a reasonable suspicion that it was a weapon. Because we hold
the facts articulated in this case do not provide a lawful basis upon which to uphold Investigator
Layman’s decision to frisk Hamm, we need not address Hamm’s alternate argument.
                                                 -9-
                                    III. CONCLUSION

      For these reasons, we hold the trial court erred in denying Hamm’s motion to suppress

the methamphetamine. Accordingly, we reverse and dismiss Hamm’s conviction.

                                                                      Reversed and dismissed.




                                           - 10 -
