                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia


DARRYL LEON HALL
                                            MEMORANDUM OPINION * BY
v.   Record No. 2293-00-1                JUDGE JERE M. H. WILLIS, JR.
                                                 JULY 31, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                        A. Joseph Canada, Judge

             Ben Pavek (Office of the Public Defender, on
             brief), for appellant.

             Eugene Murphy, Assistant Attorney General
             (Mark L. Earley, Attorney General, on brief),
             for appellee.


     On appeal from his bench trial conviction for possession of

cocaine, in violation of Code § 18.2-250, Darryl Leon Hall

contends that the trial court erred in denying his motion to

suppress evidence obtained in violation of his Fourth Amendment

rights.    For the following reasons, we affirm.

                            I.   BACKGROUND

     On February 17, 2000, Virginia Beach Police Officers S.J.

Conklin and D.A. Keisel were conducting surveillance of 3244

Peele Court in response to several reports of drug activity

there.    The police had previously served a search warrant on the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
residence and had recovered cocaine.    Officer Conklin testified

that he was familiar with the neighborhood, which he

characterized as an "open-air drug market" with "lot[s] of

firearms violations," an area where numerous "shots fired" had

been reported and numerous "drug arrests" had occurred.

     At approximately 3:00 p.m., the officers observed Hall

approach the residence and knock on the front door.    The woman

who lived there "came to the door, looked to the right, looked

to the left, saw [the police], [and] shut the door."   Hall went

to the backyard where he could not be observed because of a

"privacy fence."   The officers exited their vehicle and "walked

up the alley towards the house, . . . looked through the fence,

[saw] nobody in the back yard [sic] and [noticed that] the

drapes were drawn."   After approximately fifteen to twenty

minutes, Hall exited the rear of the house.

     As Hall approached the officers, Officer Conklin said,

"Excuse me.   Can we talk to you for a minute?"   Hall then

"initiated conversation" with the officers, and Officer Conklin

asked him "if he knew he was coming from a known drug house."

Hall replied that he did not.

     Officer Conklin then asked whether he could see some

identification and Hall responded, "Yes.   I'll give you

everything I have."   He then pulled out a lighter and his

wallet, removed his ID from his wallet and gave it to Officer

Conklin who "ran a local check" from his shoulder radio.

                                - 2 -
     After Hall gave Officer Conklin his identification, the

woman the officers had seen at the front door exited the house,

approached the group and began arguing with Hall about money.

As she approached, Officer Conklin "advised [Hall] that he was

going to pat him down for narcotics and weapons."    Officer

Conklin testified that, as Hall emptied his pockets, he noticed

a paper towel sticking out of the only pocket Hall failed to

empty, and this made him "suspicious."

     Officer Conklin testified that during previous arrests, he

had recovered "crack stems or cocaine smoking devices wrapped in

towels."   He stated that "in [his] experience they normally take

paper towels and wet it or wad it up around a smoking device so

they don't burn their finger when they're smoking it."      Officer

Conklin further stated that he decided to pat Hall down within

"[a] few seconds . . . [t]en seconds maybe" after Hall handed

him his identification.

     In denying the motion to suppress, the trial court

concluded:

             When the officer asked [Hall] for ID it was
             still consentual [sic] because [Hall] not
             only offered him his ID, he was cooperative.
             He said, I'll give you everything I have.

             *     *      *      *       *     *      *

             The testimony was that after the officer had
             [Hall's] ID, then the woman interjected
             herself or at some point became part of
             this. It was totally consentual [sic] when
             he asked him for the ID, and then while he
             was looking at the ID, checking on the

                                 - 3 -
            warrants, he was apparently still pushing
            around in his pocket and pulling out things;
            and he was checking his radio to determine
            whether there were any warrants. The court
            feels . . . that during that procedure, he
            spotted the tissue or paper towel, whatever
            it is; and based on that, it's reasonable
            suspicion and he searched him.

Hall pled not guilty, but stipulated to the Commonwealth's

evidence.   He was convicted of possession of cocaine.

                            II.    ANALYSIS

     Hall contends that he was unlawfully "seized" when Officer

Conklin asked for and took possession of his identification.

Therefore, he argues, all evidence obtained thereafter was the

fruit of an unlawful seizure and should have been suppressed.

     "In reviewing a trial court's denial of a motion to

suppress, 'the burden is upon the defendant 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, cert. denied, 449 U.S. 1017 (1980)).      "Ultimate

questions of reasonable suspicion and probable cause to make a

warrantless search" involve issues of both law and fact,

reviewable de novo on appeal.      Ornelas v. United States, 517

U.S. 690, 699 (1996).   Similarly, whether a police-citizen

encounter constitutes a seizure, thereby implicating the Fourth

Amendment, presents a mixed question of law and fact, requiring


                                  - 4 -
independent appellate review.     See Watson v. Commonwealth, 19

Va. App. 659, 663, 454 S.E.2d 358, 361 (1995).    "[I]n performing

such analysis, we 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."     McGee, 25 Va. App. at 198, 487 S.E.2d at 261.

     Officer Conklin did not effect a seizure when he requested

Hall's identification in order to conduct a "check" for

outstanding warrants.    "[A] person has been 'seized' within the

meaning of the Fourth Amendment only if, in view of all of the

circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave."        United

States v. Mendenhall, 446 U.S. 544, 554 (1980).     See Baldwin v.

Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647-48 (1992).

"Thus, a seizure occurs when a law enforcement officer, by

physical force or some display of authority, restrains in some

manner a citizen's freedom of movement.    Only when such

restraint is imposed is there a basis for invoking Fourth

Amendment safeguards."     McCain v. Commonwealth, 261 Va. 483,

490-91, 545 S.E.2d 541, 546 (2001) (citations omitted).

             Examples of circumstances that might
             indicate a seizure, even where the person
             did not attempt to leave, would be the
             threatening presence of several officers,
             the display of a weapon by an officer, some
             physical touching of the person of the
             citizen, or the use of language or tone of

                                 - 5 -
          voice indicating that compliance with the
          officer's request might be compelled.

Mendenhall, 446 U.S. at 554 (citation omitted).    "In contrast, a

police request made in a public place for a person to produce

some identification, by itself, generally does not constitute a

Fourth Amendment seizure."    McCain, 261 Va. at 491, 545 S.E.2d

at 546 (citations omitted).

     Officer Conklin requested Hall's identification without any

show of force or display of authority that would have led a

reasonable person to believe that he was not free to leave.

Hall chose to remain and to answer the officers' questions.    He

voluntarily gave his identification to Officer Conklin.     Nothing

in the record suggests that the officers threatened,

intimidated, restrained, or coerced Hall.   Officer Conklin

retained Hall's identification for "[a] few seconds . . . [t]en

seconds maybe," during which time Hall could have requested its

return or simply walked away.   He did neither.   Officer

Conklin's mere request for Hall's identification and his brief

use of that identification for a "check" did not effect a

seizure for Fourth Amendment purposes.   "A seizure does not

occur in the absence of physical force used by a law enforcement

officer or a defendant's submission to an officer's assertion of

authority."   Id.

     "Once a police officer has properly detained a suspect for

questioning, he may conduct a limited pat-down search for


                                - 6 -
weapons if he reasonably believes that the suspect might be

armed and dangerous."     Williams v. Commonwealth, 4 Va. App. 53,

66, 354 S.E.2d 79, 86 (1987).    To support the pat-down, the

officer must be able to point to articulable facts from which he

could reasonably infer that the defendant might be armed and

dangerous.     See James v. Commonwealth, 22 Va. App. 740, 754, 473

S.E.2d 90, 92 (1996).

             "Among the circumstances to be considered in
             connection with this issue are the
             'characteristics of the area' where the stop
             occurs, the time of the stop, 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."

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

States v. Bull, 565 F.2d 869, 870-71 (4th Cir. 1977), cert.

denied, 435 U.S. 946 (1978)).

     The encounter in this case took place in a high crime area.

Officer Conklin testified that the neighborhood was an "open-air

drug market" with "lot[s] of firearms violations," an area where

numerous "shots fired" had been reported and numerous "drug

arrests" had occurred.    The police knew the residence to be one

in which narcotics had previously been found and about which

recent complaints of narcotics activity had been received.

"Suspicion of narcotics possession and distribution is . . .

recognized as a circumstance which, standing alone, gives rise

to an inference of dangerousness."       Williams, 4 Va. App. at 67,

                                 - 7 -
354 S.E.2d at 87 (citation omitted).   Under these circumstances,

the police were reasonably concerned for their safety and acted

reasonably in conducting a protective pat-down search for

weapons.   "To hold otherwise would be an invitation to violence

in what is always a potentially explosive situation."   Id.

     The judgment of the trial court is affirmed.

                                                        Affirmed.




                               - 8 -
Benton, J., dissenting.

     The evidence proved that the officer obtained Darryl Leon

Hall's identification, retained it "to see if he had any

warrants on him," and requested his dispatcher to check for

outstanding warrants against Hall.      I would hold that when the

officer did so, he seized Hall for purposes of the Fourth

Amendment.   See United States v. Mendenhall, 446 U.S. 544, 554

(1980) (holding that a person has been seized "if, in view of

all the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave").

Moreover, when a police officer subjects a person to a

protective frisk for weapons, the officer intrudes on that

person's privacy and conducts a search and seizure under the

Fourth Amendment.   Terry v. Ohio, 392 U.S. 1, 16-19 (1968).        See

also Toliver v. Commonwealth, 23 Va. App. 34, 36, 473 S.E.2d

722, 724 (1996) (holding that "[w]hile being frisked, no

reasonable person would feel free to walk away").

     To conduct a protective frisk for weapons of an "individual

whose suspicious behavior he is investigating," an officer must

have a reasonable articulable suspicion that the individual "is

armed and presently dangerous to the officer or to others."

Terry, 392 U.S. at 24.    "The purpose of this limited search is

not to discover evidence of crime, but to allow the officer to

pursue his investigation without fear of violence."      Adams v.

Williams, 407 U.S. 143, 146 (1972).

                                - 9 -
     The record contains no evidence supporting a reasonable

articulable suspicion that Hall was armed and dangerous.

Indeed, the officer's testimony established that he only frisked

Hall to discover drugs.   He testified as follows:

          I advised Mr. Hall I was going to pat him
          down for narcotics and weapons. I noticed a
          paper towel sticking out of his pocket. The
          pocket the paper towel was sticking out of
          - that was the only pocket I went to go
          into. When he said he would give me
          everything, he emptied everything but that
          pocket; and based on the other arrests in
          the neighborhood, I have recovered crack
          stems or cocaine smoking devices wrapped in
          towels.

This testimony does not indicate that the officer was justified

in believing or even did believe that Hall was armed and

presently dangerous.   The officer merely believed that one of

Hall's pockets contained drug paraphernalia.   In fact, he

searched only the pocket where the paper towel indicated to him

the presence of a "smoking device."    He was not searching for

weapons because "that was the only pocket [he] went to go into."

     The majority relies on testimony about the surrounding area

and the general circumstances of narcotics activity to justify

the search.   Even if such factors justified a protective frisk

for weapons, the officer did not conduct such a search.    He was

looking for the evidence of crime and not to protect his safety.

When an officer makes "no claim that he suspected [the paper

towel] to be a weapon," he had no basis to seize it.    Minnesota

v. Dickerson, 508 U.S. 366, 378 (1993).    The seizure and search

                              - 10 -
of the paper towel were the product of an "exploration

. . . unrelated to '[t]he sole justification of the search

[under Terry:] . . . the protection of the police officer and

others nearby.'"     Dickerson, 508 U.S. at 378 (quoting Terry, 392

U.S. at 29).    As in Dickerson, this officer's search for weapons

"amounted to the sort of evidentiary search that Terry expressly

refused to authorize."     Dickerson, 508 U.S. at 378.

             [E]vidence may not be introduced if it was
             discovered by means of a seizure and search
             which were not reasonably related in scope
             to the justification for their initiation.

                  . . . Suffice it to note that [a
             warrantless weapons] search, unlike a search
             without a warrant incident to a lawful
             arrest, is not justified by any need to
             prevent the disappearance or destruction of
             evidence of crime. The sole justification
             of the search in the present situation 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, 392 U.S. at 29 (citations omitted).     See also Harris v.

Commonwealth, 241 Va. 146, 154, 400 S.E.2d 191, 196 (1991)

(holding that the opening of a film canister found in a pat-down

search for weapons exceeded the scope of a Terry search even

though the officer's experience led him to believe "people kept

their narcotics and drugs in film canisters and 'things of that

nature'").




                                - 11 -
     I would hold the evidence provides no facts supporting a

reasonable articulable suspicion that Hall was armed and

dangerous.    Thus, the record establishes no lawful justification

for the officer to seize the paper towel he saw in Hall's

pocket.   As in Toliver, the following is controlling:

                The circumstances were insufficient to
             give [the] Officer . . . an objectively
             reasonable basis for suspecting that [Hall]
             was armed and dangerous. He had no
             information that [Hall] was involved in
             criminal activity, nor had he observed any
             criminal behavior. The mere fact that
             [Hall] was in an area known for drug use
             created no inference that he was involved in
             criminal activity. [Hall] cooperated with
             [the] Officer . . . and . . . gave his
             correct name. Nothing suggested that he was
             carrying a concealed weapon. Therefore, the
             frisk was illegal and the trial court erred
             in admitting the evidence . . . .

23 Va. App. at 37, 473 S.E.2d at 724 (citations omitted).

     For these reasons, I would hold that the trial judge erred

in refusing to suppress the evidence.    I would, therefore,

reverse the conviction and remand for a new trial.




                                - 12 -
