                                                                    COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Chafin and Decker
PUBLISHED


            Argued at Norfolk, Virginia


            GEORGE LEE HAWKINS
                                                                                                 OPINION BY
            v.            Record No. 1270-14-1                                             JUDGE TERESA M. CHAFIN
                                                                                               AUGUST 4, 2015
            COMMONWEALTH OF VIRGINIA


                                              FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                                           John R. Doyle, III, Judge

                                         Griffin M. O’Hanlon (Korslund & Korslund, P.C., on brief), for
                                         appellant.

                                         Kathleen B. Martin, Senior Assistant Attorney General (Mark R.
                                         Herring, Attorney General, on brief), for appellee.


                          George Lee Hawkins was convicted of possession of a firearm by a convicted felon in

            violation of Code § 18.2-308.2. On appeal, he contends that the trial court erred by denying his

            motion to suppress the firearm found on his person. Hawkins argues that the trial court

            erroneously concluded that he consented to the search in question and that the police officer who

            performed the search “exceeded the scope of a Terry1 stop [by conducting] a search of the

            defendant’s person rather than a protective frisk.” For the reasons that follow, we affirm

            Hawkins’s conviction.

                                                                           I. BACKGROUND

                          “When reviewing a denial of a suppression motion, we review the evidence ‘in the light

            most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.’”

            Elliott v. Commonwealth, 61 Va. App. 48, 51, 733 S.E.2d 146, 148 (2012) (quoting Glenn v.

                                                                        
                          1
                              Terry v. Ohio, 392 U.S. 1 (1968).
Commonwealth, 49 Va. App. 413, 416, 642 S.E.2d 282, 283 (2007) (en banc), aff’d, 275 Va.

123, 654 S.E.2d 910 (2008)). So viewed, the evidence established that Chesapeake Police

Officer Barret C. Ring observed a suspected hand-to-hand drug transaction in an area known as a

high crime, open-air drug market shortly after midnight on February 28, 2013.2 Ring saw

Hawkins and another man standing in the street facing a third individual who was later identified

as “Hamilton.” Hawkins’s companion completed a hand-to-hand exchange with Hamilton while

Hawkins stood nearby. Hamilton then got in the passenger seat of a car waiting across the street,

and the car left the area.

              Officer Ring stopped the car for a traffic violation at an intersection located within a

block of where the exchange occurred.3 When Ring stopped the car, its driver dropped drug

paraphernalia and Ring found “multiple quantities of suspected cocaine” when he searched

Hamilton following his arrest. Norfolk police officers arrived at the scene shortly after Officer

Ring stopped the car. Officer Ring informed the officers of the hand-to-hand exchange and

directed their attention to Hawkins and his companion, who were standing across the street.

              Five Norfolk police officers arrived at the scene and approached Hawkins and the other

man. The officers asked the men for their identification, and asked them questions about what

they were doing on the street that night. The officers did not, however, mention the traffic stop

or the narcotics investigation that was being conducted across the street by the Chesapeake

police. One of the officers described the tone of the conversation as “completely casual,” and he

testified that the officers only intended to identify the men for later investigation. Although there



                                                            
              2
          Although the transaction occurred within the City of Norfolk, it occurred near that city’s
limits, “well within three hundred yards” of the City of Chesapeake.
              3
                  This stop occurred within the City of Chesapeake.
                                                               -2-
were five officers present, they were not positioned so as to block either Hawkins or his

companion from leaving the area.

        During the conversation between the officers and the two men, Officer R.A. Mazzio saw

a bulge under Hawkins’s shirt. He asked Hawkins if he had “a big cell phone on [his] belt,” and

then asked him if he “could do him a favor” by raising his “shirt up a little bit so [Mazzio could]

see how it sits.” Mazzio testified that his tone was congenial and even joking during this

interaction and that he did not instruct or command Hawkins to raise his shirt.

        In response to Mazzio’s request, Hawkins extended his arms completely out to his sides

and raised them about halfway up to his shoulders with his palms facing the officers. Hawkins

did not say anything or make any other movements for approximately five seconds. After

several seconds, an officer lifted the tail of Hawkins’s shirt and revealed the handle of a handgun

tucked into his waistband. The officers confiscated the firearm, and Hawkins was arrested for

possessing a firearm as a convicted felon. Officer S.A. Bartley took a statement from Hawkins

following his arrest. Bartley testified that Hawkins told him that he did not initially tell the

officers that he had a weapon because he did not want to startle them, but that he “came around

and showed the officers that he . . . was indeed wearing a firearm.”

        Hawkins moved to suppress the evidence obtained by the officers on February 28, 2013,

arguing that he did not consent to a search (specifically, the lifting of his shirt by the officers)

and that the officers’ actions exceeded the scope of a search permissible under Terry. The trial

court denied his motion. The trial court concluded that Hawkins consented to the search through

his actions on the night in question. Additionally, the trial court noted that reasonable suspicion

would have supported a Terry frisk for weapons under the circumstances and elaborated on the

specific facts of the case that would have given rise to that reasonable suspicion. The trial court,

however, expressly held that a Terry stop had not occurred in the present case. The trial court
                                                 -3-
concluded that the interaction between Hawkins and the officers was consensual and that

Hawkins consented to the lifting of his shirt during that interaction. Hawkins entered a

conditional guilty plea after the trial court denied his motion to suppress, and this appeal

followed.

                                          II. ANALYSIS

       In reviewing a trial court’s denial of a motion to suppress, “we determine whether the

accused has met his [or her] burden to show that the trial court’s ruling, when the evidence is

viewed in the light most favorable to the Commonwealth, was reversible error.” Roberts v.

Commonwealth, 55 Va. App. 146, 150, 684 S.E.2d 824, 826 (2009). This Court is “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.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261

(1997) (en banc). “However, we consider de novo whether those facts implicate the Fourth

Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the

Fourth Amendment.” Hughes v. Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155, 159

(2000) (en banc) (citing McGee, 25 Va. App. at 198, 487 S.E.2d at 261).

       On appeal, Hawkins’s argument focuses primarily on the scope of the search in question.

Hawkins contends that the police officer conducting the search exceeded the scope of Terry by

lifting his shirt before he performed a weapons frisk. The trial court, however, held that

Hawkins consented to the search. While the trial court explained that the officers could have

performed a weapons frisk under Terry, it expressly held that a Terry stop and weapons frisk did

not occur. Accordingly, we analyze whether the trial court erred by concluding Hawkins

consented to the search without addressing whether or not the officer’s actions exceeded the

scope of a weapons frisk permissible under Terry.
                                                -4-
       “As a general rule, ‘a search authorized by consent is wholly valid.’” Kyer v.

Commonwealth, 45 Va. App. 473, 483, 612 S.E.2d 213, 218 (2005) (en banc) (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). “Where consent is freely and voluntarily

given, probable cause and a search warrant are not required.” Limonja v. Commonwealth, 8

Va. App. 532, 540, 383 S.E.2d 476, 481 (1989). “The presence of consent is a factual question

to be determined by the trier of fact” based on the totality of the circumstances, and we reverse a

trial court’s decision regarding the presence of consent only when it is plainly wrong.

Jean-Laurent v. Commonwealth, 34 Va. App. 74, 79, 538 S.E.2d 316, 318 (2000).

       “‘Consent to a search . . . must be unequivocal, specific and intelligently given . . . and it

is not lightly to be inferred.’” Id. at 78, 538 S.E.2d at 318 (quoting Elliotte v. Commonwealth, 7

Va. App. 234, 239, 372 S.E.2d 416, 419 (1988)). Consent, however, may be evidenced by

conduct alone. “Courts have found consent to a specific request to search a person when

evidenced by conduct alone, such as turning and ‘placing one’s hands against the wall without

prompting,’ or shrugging one’s shoulders and then extending one’s arms.” Id. at 79, 538 S.E.2d

at 318 (emphasis omitted) (quoting Bynum v. Commonwealth, 23 Va. App. 412, 417, 477 S.E.2d

750, 753 (1996)). Nevertheless, an appellant’s mere acquiescence to a search is inadequate to

establish that he or she voluntarily consented to it, and the Commonwealth bears a heavier

burden “‘where the alleged consent is based on an implication.’” Id. at 78-79, 538 S.E.2d at 318

(quoting Walls v. Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986)).

       When we review the evidence of the present case under our established standard of

review, we conclude that the trial court did not err by denying Hawkins’s motion to suppress.

The trial court’s conclusion that Hawkins consented to the search was supported by the evidence

of the case and was not plainly wrong.



                                                -5-
              On appeal, Hawkins concedes that his initial interaction with the police was consensual.4

The Norfolk officers approached Hawkins and his companion to identify them for further

investigation, and they did not place them under arrest or otherwise detain them against their

will. The officers testified that their tone during this interaction was “completely casual” and

even joking. Although five officers were present, they were not positioned in a way that blocked

Hawkins from leaving the area and they did not mention the narcotics investigation being

conducted by the Chesapeake police across the street. Although the trial court noted that the

officers could have conducted a Terry stop under the circumstances, the officers chose to have a

less invasive, consensual encounter with Hawkins and his companion.

              During the course of this encounter, Officer Mazzio noticed a bulge under Hawkins’s

shirt. Rather than pat Hawkins down, Mazzio asked Hawkins if he “could do him a favor” and

lift his shirt. Importantly, Mazzio asked Hawkins if he would lift his shirt; he did not order him

to do so. In response to this request, Hawkins raised his arms about halfway up to his shoulders

with his palms facing the officers and held them in that position for several seconds. When an

officer eventually lifted Hawkins’s shirt, Hawkins did not tell him to stop or otherwise resist the

search.

              We conclude that Hawkins’s non-verbal response to Mazzio’s request invited the officers

to lift his shirt.5 Like an appellant who places his or her hands on a wall in response to an

                                                            
              4
         Although we are generally precluded from accepting concessions of law made on
appeal, see Copeland v. Commonwealth, 52 Va. App. 529, 531-32, 664 S.E.2d 528, 529 (2008),
we agree with Hawkins’s concession based on our independent review of the record.
              5
          The Fourth Circuit reached a similar conclusion based on comparable conduct in United
States v. Wilson, 895 F.2d 168 (4th Cir. 1990). Likewise, this Court has reached similar
conclusions in two unpublished opinions, Graham v. Commonwealth, No. 0281-04-3, 2005
Va. App. LEXIS 287 (Va. Ct. App. July 18, 2005), and Baker v. Commonwealth, No. 1311-03-2,
2004 Va. App. LEXIS 222 (Va. Ct. App. May 11, 2004). While these unpublished decisions
have no precedential value, we cite them here as informative decisions pursuant to Rule 5A:1(f).
                                                               -6-
officer’s request to perform a search, Hawkins assumed a common “frisk stance” that implied

that he consented to the search. The officers reasonably inferred that Hawkins agreed to allow

them to lift his shirt, and he did nothing to indicate that he objected to their actions. See Florida

v. Jimeno, 500 U.S. 248, 250-51 (1991) (“The touchstone of the Fourth Amendment is

reasonableness . . . [and t]he standard for measuring the scope of a suspect’s consent under the

Fourth Amendment is that of ‘objective’ reasonableness -- what would the typical reasonable

person have understood by the exchange between the officer and the suspect?”).

       The trial court’s conclusion that Hawkins consented to the search, however, was based on

more than his mere physical conduct. After his arrest, Hawkins told the police that he eventually

“came around and showed the officers that he . . . was indeed wearing a firearm.” This statement

implied that Hawkins made a conscious decision to show the police the weapon, and therefore,

implied that he actually consented to the search.

       In the present case, the evidence established that Hawkins voluntarily consented to

Mazzio’s request to lift his shirt. During a consensual encounter, Mazzio asked Hawkins if he

would lift his shirt and Hawkins responded to this request by assuming a position commonly

associated with weapons frisks that implied his consent. Furthermore, the statements Hawkins

made to the police officers following his arrest implied that he consented to the search.

Accordingly, we conclude that the trial court did not err by determining that Hawkins consented




                                                 -7-
to the search and denying his motion to suppress on that basis.6 Therefore, we affirm Hawkins’s

conviction.

                                                                                      Affirmed.




                                                            
              6
         As we conclude that the trial court did not err by deciding that Hawkins consented to
the search, applying the “right result, wrong reason” principle to reach the substance of
Hawkins’s argument concerning the scope of the Terry frisk is inappropriate. The trial court’s
decision based on consent was correct, and accordingly, there is no “wrong reason” underlying it
that would require us to examine alternate grounds that may support the decision.
                                                               -8-
Petty, J., concurring.
              I concur in the judgment of the Court. However, given the findings of fact made by the

trial court, the legal concessions made by Hawkins, the specific wording of the assignment of

error,7 and the legal principles involved, I find it unnecessary to reach the question of whether

Hawkins consented to the search. I agree with the trial court that Hawkins was detained based

on a reasonable suspicion of criminal activity and that the officers had a reasonable suspicion

that he might be armed. Therefore, I would hold that the officers were justified in lifting his shirt

to confirm or dispel their suspicions and, thus, the search was reasonable irrespective of whether

Hawkins consented to the search.

              Here, the trial court analyzed the stop as a consensual encounter. The court found that

“while [the officers] could have conducted a Terry stop and had a more invasive interaction with

the defendant, they chose to engage him in conversation.” The court further found that when

Officer Mazzio “walk[ed] up and he [saw] the bulge . . . he could have patted [Hawkins] down to

find out what that was, given everything that had gone on, but that wasn’t his approach.” During

the encounter, Hawkins “decid[ed] to let them see what this bulge was, as he himself later

admitted that’s what he decided to do and what he did do.” Thus the court found as fact that

although “the officers would have reasonable articulable suspicion based on the observations of

the Chesapeake police officer to have conducted a Terry stop,” they chose to handle the

encounter as a consensual one.


                                                            
              7
                  The assignment of error reads:

                                     The trial court erred in denying the motion to suppress
                             evidence seized as the result of a police officer searching the
                             defendant’s person because the police officer exceeded the scope
                             of a Terry stop in that he conducted a search of the defendant’s
                             person rather than a protective frisk.

                                                               -9-
              On brief and at oral argument, Hawkins concedes that there was sufficient articulable

suspicion to support a detention pursuant to Terry and that the officers had a reasonable

suspicion that Hawkins might be armed. Moreover, he concedes that a police officer would have

been justified in frisking him, and in lifting his shirt after the frisk if the officer had felt the

handle of his handgun.8 Hawkins argues, however, that because the officer lifted his shirt and

exposed the handgun before frisking him, the search “exceeded the scope of a Terry stop in that

[the officer] conducted a search of the defendant’s person rather than a protective frisk.”

Hawkins contends that a frisk is a “limited protective search [that] is an intermediate police

investigatory tool between mere questioning and a full, custodial search.” Appellant’s Br. at 8.

Hawkins argues that “Officer Aaron ignored the authorized intermediate tool of a protective

frisk, which he may have been justified in utilizing, and instead conducted a search of

[Hawkins’s] person,” thereby exceeding the scope of a Terry stop. Id. Hawkins thereby

implicitly asks us to hold first that there was a Terry stop, and then to conclude that because the

officer did not pat Hawkins down before lifting his shirt, the search was impermissible. I agree

with Hawkins that the officers were justified in detaining him; however, I disagree that the

search exceeded the scope authorized by Terry.

            THE EVIDENCE SUPPORTS A LAWFUL INVESTIGATORY STOP AND PROTECTIVE SEARCH

               A police officer may detain a person “if the officer possesses a reasonable suspicion,

based on articulable facts, that the individual is or is about to be engaged in criminal activity.”

Gregory v. Commonwealth, 22 Va. App. 100, 105, 468 S.E.2d 117, 120 (1996). “‘There are no


                                                            
              8
         As the majority notes, “‘[o]ur fidelity to the uniform application of law precludes us
from accepting concessions of law made on appeal.’” Copeland v. Commonwealth, 52 Va. App.
529, 531-32, 664 S.E.2d 528, 529 (2008) (quoting Logan v. Commonwealth, 47 Va. App. 168,
172, 622 S.E.2d 771, 773 (2005) (en banc)). However, in this case the findings of the trial court
as well as my independent review of the record support my conclusion that Hawkins’s
concessions are well taken.
                                                - 10 -
bright line rules to follow when determining whether a reasonable and articulable suspicion

exists to justify an investigatory stop. Instead, the courts must consider the totality of the

circumstances—the whole picture.’” Reel v. Commonwealth, 31 Va. App. 262, 266, 522 S.E.2d

881, 883 (2000) (quoting Hoye v. Commonwealth, 18 Va. App. 132, 135, 442 S.E.2d 404, 406

(1994)). “Further, the Fourth Amendment requires only that an objectively reasonable basis

exist for a search.” Logan v. Commonwealth, 29 Va. App. 353, 359, 512 S.E.2d 160, 163

(1999). “‘That the officer does not have the state of mind which is hypothecated by the reasons

which provide the legal justification for the officer’s action does not invalidate the action taken

as long as [all] the circumstances, viewed objectively, justify that action.’” Id. (quoting Whren

v. United States, 517 U.S. 806, 812-13 (1996)) (alteration in original).

       Here, the trial court analyzed the permissibility of the search in the context of consent

because the officers chose to handle the encounter as a consensual one. However, an officer’s

choice to frame an encounter as a consensual one does not invalidate an investigatory detention

as long as all the circumstances, viewed objectively, justify that action. See id. There is no

dispute here, based on Hawkins’s concession and the trial court’s explicit findings, that there was

reasonable and articulable suspicion to justify a detention. The court specifically found that the

Chesapeake officer’s identification of Hawkins as a participant in the drug deal provided

articulable suspicion that Hawkins was involved in a crime. The Chesapeake officer saw

Hawkins standing six inches away from an individual who was involved in a drug deal with the

passenger of a BMW. The Chesapeake officer alertly noticed that Hawkins and another

individual had moved from the location of the drug transaction to the street corner across the

street from where the Chesapeake officer was arresting the other party to the transaction. After

stopping the BMW and finding drugs during a search incident to arrest, the Chesapeake officer

pointed Hawkins out as a suspect to the Norfolk officers. It was based on these facts, explicitly
                                                - 11 -
enumerated by the trial court, that the court found sufficient evidence to support a Terry stop. I

agree with the trial court that the officers had reasonable suspicion to detain and question

Hawkins.

          Similarly, the officers’ choice to treat the search as one conducted with consent does not

invalidate the lawfulness of a protective search pursuant to Terry as long as all the

circumstances, viewed objectively, justify that action. “During an investigative stop authorized

under Terry, an officer may conduct a limited search for concealed weapons if the officer

reasonably believes that a criminal suspect may be armed and dangerous.” Murphy v.

Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 839 (2002) (emphasis added). “The purpose

of this ‘pat down’ search is not to uncover evidence of criminal activity, but to permit the officer

to conduct his investigation without encountering a violent response.” Id. at 573-74, 570 S.E.2d

at 839.

                 The circumstances that a court can consider when determining
                 whether an officer had reasonable, articulable suspicion to believe
                 an individual was armed “include characteristics of the area
                 surrounding the stop, the time of the stop, the specific conduct of
                 the suspect individual, the character of the offense under suspicion,
                 and the unique perspective of a police officer trained and
                 experienced in the detection of crime.”

Roberts v. Commonwealth, 55 Va. App. 146, 153, 684 S.E.2d 824, 827 (2009) (quoting McCain

v. Commonwealth, 275 Va. 546, 554, 659 S.E.2d 512, 517 (2008)). However, even in a “high

crime, high drug area,” a protective search requires that an officer have articulable suspicion to

believe an individual is armed. Id. at 155, 684 S.E.2d at 828.

          The justification for a search in these circumstances “is the protection of the police

officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably

designed to discover guns, knives, clubs or other hidden instruments for the assault of the police

officer.” Terry v. Ohio, 392 U.S. 1, 29 (1968). In order to take this protective step, an officer
                                                  - 12 -
need not be certain that the individual is armed. Rather “the issue is whether a reasonably

prudent man in the circumstances would be warranted in the belief that his safety or that of

others was in danger.” Id. at 27.

              Here, as Officer Mazzio approached Hawkins, he performed what amounted to a “visual

patdown” when he “visually looked down, up and down [Hawkins’s body].” As a result of this,

Officer Mazzio noticed the bulge which “could have been a weapon” and which, based on his

experience, caused him concern for his safety and the safety of those around him.

                             When an officer is justified in believing that the individual whose
                             suspicious behavior he is investigating at close range is armed and
                             presently dangerous to the officer or to others, it would appear to
                             be clearly unreasonable to deny the officer the power to take
                             necessary measures to determine whether the person is in fact
                             carrying a weapon and to neutralize the threat of physical harm.

Id. at 24.9 Notably, Terry authorizes “necessary measures” to determine whether the person is

armed, rather than authorizing a pat down only.

              The Norfolk officers were in a “high crime, high drug area” known for “firearm-related

offenses and calls violent in nature.” It was the middle of the night. The officers were aware

that a Chesapeake officer was in the process of making a drug arrest and that he had implicated

Hawkins in the drug transaction. See Bandy v. Commonwealth, 52 Va. App. 510, 518, 664

S.E.2d 519, 523 (2008) (“Courts have often recognized that ‘the connection between illegal drug

operations and guns is a tight one.’” (quoting Jones v. Commonwealth, 272 Va. 692, 701 n.3,

636 S.E.2d 403, 407 n.3 (2006))). One of the officers visually observed a bulge at Hawkins’s




                                                            
              9
         As one officer testified when explaining his motivation in raising a suspect’s shirt
during a Terry stop, “Sir, I like to go home with the same amount of holes that I leave the house
[with]; and if that individual has a weapon and they might do harm to me, I would like to know it
beforehand.” United States v. Motley, No. 2:13-cr-20373-SHL, 2014 U.S. Dist. LEXIS 81964,
at *7 (W.D. Tenn. June 17, 2014).
                                               - 13 -
waist that he suspected could be a weapon and that caused him concern for his safety.10 “[A]

reasonably prudent man in [these] circumstances would be warranted in the belief that his safety

or that of others was in danger.” Terry, 392 U.S. at 27.

            A PRELIMINARY PAT DOWN WAS NOT REQUIRED IN THESE CIRCUMSTANCES

        Hawkins’s argument is premised on the belief that the only search authorized by Terry is

a tactile pat down of the defendant’s outer clothing. While that may be true in cases where there

is no readily apparent indication that a suspect possesses a weapon, I do not believe a police

officer is required to touch the object his eyes have already detected in order to confirm or dispel

his suspicion the suspect is armed. In approving the limited pat-down search in Terry, the United

States Supreme Court recognized that the limitations which the Fourth Amendment places upon

a protective search for weapons “will have to be developed in the concrete factual circumstance

of individual cases.” Id. at 29. Several federal circuit courts of appeal have developed the limits

of protective searches where a visible bulge is present before any pat down is performed.

        In United States v. Baker, 78 F.3d 135, 136 (4th Cir. 1996), an officer made a traffic stop

at about 1:20 a.m.    The officer saw a bulge underneath the front of the suspect’s shirt that could

have been a weapon. Id. “In order to determine whether [the suspect] was carrying a concealed

weapon, [the officer] ordered [the suspect] to lift his shirt above the bulge.” Id. When the

suspect complied, a handgun was revealed. Id. The trial court granted the motion to suppress

the handgun, reasoning that the officer “had no justification to reasonably believe the suspect


                                                            
               10
                   The fact that the officer told Hawkins that he thought the bulge might be a cell phone is
not relevant to the analysis. See Mason v. Commonwealth, 64 Va. App. 292, 302, 767 S.E.2d
726, 732 (2015) (en banc) (“Because courts ‘do not examine the subjective understanding of the
particular officer involved,’ Heien v. North Carolina, 135 S. Ct. 530, 539 (2014), it necessarily
follows that, when deciding a suppression motion, a court should not limit itself ‘to what the
stopping officer says or to evidence of his subjective rationale,’ Raab v. Commonwealth, 50
Va. App. 577, 583 n.2, 652 S.E.2d 144, 148 n.2 (2007) (en banc).”).

                                                   - 14 -
was armed and dangerous and that even if the officer reasonably could have formed such a

belief, he should have conducted a ‘patdown frisk’ instead of directing [the suspect] to raise his

shirt.” Id. at 137.

        The Fourth Circuit reversed the trial court’s conclusions on both issues. The Fourth

Circuit reasoned that “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.” Id.; see also Pennsylvania v. Mimms, 434 U.S. 106, 111-12 (1977) (per

curiam) (holding that a bulge in the jacket of appellant was sufficient to conclude appellant

might be armed and pose a serious danger). Further, the Fourth Circuit held that “the [trial] court

erroneously concluded that a patdown frisk was the only permissible method of conducting a

Terry search.” Baker, 78 F.3d at 138. Rather, “the reasonableness of a protective search

depends on the factual circumstances of each case.” Id. (citing Terry, 392 U.S. at 29). The

Fourth Circuit noted that the raising of the shirt “was less intrusive than the patdown frisk

sanctioned in Terry,” and was therefore within the permissible scope of a Terry stop. Id.

        Similarly, the Ninth Circuit Court of Appeals found that the lifting of a shirt was a

permissible search within the scope of a Terry stop. United States v. Hill, 545 F.2d 1191, 1193

(9th Cir. 1976). In Hill, an officer stopped an individual who was passing by the scene of a

recent armed robbery and asked him if he had seen anyone running by. Id. at 1192. The officer

did not suspect the individual of being the robber. Id. During the conversation, the officer

“noticed a large bulge at [the individual’s] waistband which he suspected of being caused by a

weapon.” Id. “The officer raised [the individual’s] shirt which was hanging outside his trousers,

thus exposing his waistband and revealing” money stolen during the robbery. Id. at 1192-93.

        The Ninth Circuit upheld the search as reasonable, finding “that the lifting by the officer

of [the individual’s] shirt was not, under the circumstances, overly intrusive.” Id. at 1193. The
                                               - 15 -
court reasoned that “the officer’s investigation was wholly confined to the area of the bulge in

question and was a direct and specific inquiry. As such it did not transcend the permissible

bounds established by Terry.” Id. The court concluded, “Terry does not in terms limit a

weapons search to a so-called ‘pat down’ search. Any limited intrusion designed to discover

guns, knives, clubs or other instruments of assault [is] permissible. The raising of the shirt in the

instant case is well within the boundaries established by Terry.” Id.; see also United States v.

Reyes, 349 F.3d 219, 225 (5th Cir. 2003) (holding that a request that suspect lift his shirt is less

obtrusive than a pat-down search and therefore permissible under Terry).

       In summary, “a patdown frisk is but one example of how a reasonable protective search

may be conducted.” Baker, 78 F.3d at 138; see United States v. Casado, 303 F.3d 440, 449 n.5

(2d Cir. 2002) (“[W]e agree with the general principle that a patdown is not the only type of

search authorized by Terry, and that there are circumstances in which a patdown is not

required.”); Hill, 545 F.2d at 1193 (“Terry does not in terms limit a weapons search to a

so-called ‘patdown’ search. Any limited intrusion designed to discover guns, knives, clubs or

other instruments of assault [is] permissible.”). The search, however conducted, must be

confined strictly to what is minimally necessary to learn whether an individual is armed and to

disarm him once a weapon is discovered. Terry, 392 U.S. at 30; see also Adams v. Williams,

407 U.S. 143, 148 (1972) (holding that it was reasonable within the scope of Terry for an officer

relying on a tip to reach into a car and remove a handgun from suspect’s waistband even though

the gun was not visible to the officer). Simply put, the reasonableness requirement found in the

Fourth Amendment does not require a police officer to take the unnecessary, and potentially

dangerous, step of performing a pat down to confirm what he has already discovered visually —

that a suspect may very well be armed and dangerous.



                                                - 16 -
              Here, as in Terry, the officer “confined his search strictly to what was minimally

necessary to learn whether [Hawkins was] armed and to disarm [him] once he discovered the

weapon[].” Terry, 392 U.S. at 30. Here, as in Baker, the raising of the shirt “was less intrusive

than [a] patdown frisk.” 78 F.3d at 138. Here, as in Hill, “the officer’s investigation was wholly

confined to the area of the bulge in question and was a direct and specific inquiry [and a]s such it

did not transcend the permissible bounds established by Terry.” Hill, 545 F.2d at 1193.

              Therefore, I would hold that when a visual observation of an individual indicates a bulge

in the individual’s clothing sufficient to warrant a belief that the bulge may well be caused by a

concealed weapon, a lifting of the clothing in the area of the bulge without a prior tactile pat

down is within the permissible scope of a Terry search.

                                                               RIGHT RESULT, DIFFERENT REASON

              “‘[A]n appellate court may affirm the judgment of a trial court when it has reached the

right result for the wrong reason.’”11 Debroux v. Commonwealth, 32 Va. App. 364, 371-72, 528


                                                            
              11
           While Virginia courts often style this principle as “right result, wrong reason,” the
ignored reason need not necessarily be wrong. An appellate court’s authority to affirm a trial
court’s judgment on grounds other than those relied upon by the trial court is widely accepted.
See e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711 (1996) (“affirm[ing] on grounds
different from those provided by the Ninth Circuit”); Seremeth v. Bd. of Cnty. Comm’rs
Frederick Cnty, 673 F.3d 333, 337 n.2 (4th Cir. 2012) (“[W]e may affirm a [trial] court’s
decision on different grounds than those employed by the [trial] court[.]”); Jordan v. Travelers
Ins. Co., 245 So. 2d 151, 153 n.2 (La. 1971) (“[T]he appellate court may affirm on grounds
different than those argued before or relied upon by the lower court.”); Schmehl v. Helton, 662
S.E.2d 697, 705 n.7 (W. Va. 2008) (“[T]his Court may in any event affirm the circuit court on
any proper basis, whether relied upon by the circuit court or not.”).
         The principle is sometimes referred to as the more colorful “tipsy coachman” doctrine.
See, e.g., Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (analyzing “[t]his long-standing
principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine”). Georgia
Supreme Court Justice Bleckley quoted Oliver Goldsmith’s 1774 poem, Retaliation, to illustrate
the concept.

                             “It may be that we would draw very different inferences [from
                             those drawn by the trial court], and these differences might go to
                             uphold the judgment; for many steps in the reasoning of the court
                                                             - 17 -
S.E.2d 151, 155 (quoting Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313

(1992)), aff’d en banc, 34 Va. App. 72, 537 S.E.2d 630 (2000). This doctrine does not apply

“where, because the trial court has rejected the right reason or confined its decision to a specific

ground, further factual resolution is needed before the right reason may be assigned to support

the trial court’s decision.” Driscoll, 14 Va. App. at 452, 417 S.E.2d at 313-14.

              Here, the trial court addressed the permissibility of a Terry stop and a protective search.

The court expressly found that the officers had articulable suspicion to detain Hawkins and that

the officer “could have patted [Hawkins] down to find out what [the bulge] was.” The trial court

enumerated specific facts from the testimony at trial to sufficiently support a lawful detention

and search. No further factual resolution is needed in this case to affirm the trial court’s decision

on the alternate ground. Therefore, consistent with Driscoll, I would affirm on the alternate

ground and respond to the specific assignment of error by holding that the lifting of Hawkins’s

shirt did not exceed the scope of a Terry stop.

              Accordingly, for the reasons expressed, I would affirm the conviction.




                                                            
                             below might be defective, and still its ultimate conclusion be
                             correct. It not infrequently happens that a judgment is affirmed
                             upon a theory of the case which did not occur to the court that
                             rendered it, or which did occur and was expressly repudiated. The
                             human mind is so constituted that in many instances it finds the
                             truth when wholly unable to find the way that leads to it.

                                            ‘The pupil of impulse, it forc’d him along,
                                            His conduct still right, with his argument wrong;
                                            Still aiming at honor, yet fearing to roam,
                                            The coachman was tipsy, the chariot drove home.’”

Hall v. Va. Empl. Comm’n & Process Mgmt. Techs., Inc., No. 1876-12-3, 2013 Va. App. LEXIS
187, at *8 n.3 (Va. Ct. App. June 18, 2013) (quoting Lee v. Porter, 63 Ga. 345, 346 (1879)).

                                                                  - 18 -
