                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia


EDWARD BRIAN WILLIAMS
                                           MEMORANDUM OPINION * BY
v.   Record No. 2854-01-1                   JUDGE LARRY G. ELDER
                                                 MAY 13, 2003
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
                 Robert B. Cromwell, Jr., Judge

          Roger K. Grillo for appellant.

          Margaret W. Reed, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Edward Brian Williams (appellant) appeals from his bench

trial convictions for breaking and entering, petit larceny, and

possession of cocaine.    On appeal, he contends the trial judge

erred in denying his motion to suppress both his confession and

cocaine that was seized during a search of his pocket.    We hold

the denial of the motion to suppress was not error because,

although the officer lacked reasonable suspicion to believe

appellant was armed and dangerous, the officer had probable cause

to arrest appellant for breaking and entering and larceny prior to

frisking and questioning him.    Thus, we affirm the convictions.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                               I.

     The evidence proved that William Sleeth was going to his

residence when he saw a microwave oven on appellant's porch.

Later, while Sleeth was visiting a neighbor, appellant approached

the two men and asked if they were interested in purchasing a

microwave oven.   After Sleeth determined it was the same microwave

oven he had earlier seen on appellant's porch, both declined

appellant's offer.   When Sleeth left his neighbor's residence, he

noticed that the door on Amos Parsons's residence "was sticking

out quite a distance."   Because this appeared unusual and Parsons

was his friend, Sleeth decided to investigate.   He noticed

Parsons's microwave oven was missing and "recollected the one

[appellant had offered to sell him] looked like" Parsons's

microwave oven.   Sleeth was "pretty familiar" with Parsons's

microwave because he had "used it quite frequently" when he lived

with Parsons for a week.

     After Sleeth contacted Parsons, Parsons called the police and

reported a burglary and theft of his microwave oven.   When Officer

Robbie Fisher and another officer responded, Sleeth described

appellant's attempt to sell a microwave.   As this was occurring,

Officer Fisher saw appellant exit a car and walk to his residence.

Officer Fisher, who had known appellant for almost twenty years,

said he believed appellant had both a "drinking problem" and a

"drug problem."



                               - 2 -
     Officer Fisher approached him and asked him "if he had any

knowledge about the microwave that was stolen from Mr. Parsons."

Appellant said he had no knowledge of it.   Officer Fisher then

advised appellant that "[he] had a witness that said . . .

[appellant] did have the [stolen] microwave earlier in the

evening" (emphasis added), and Fisher asked if appellant would

come to the police station to resolve the matter.   Appellant did

not object or respond in any way.

     Officer Fisher testified that he did not arrest appellant but

"advised [appellant he] was going to pat him down before placing

him in the police car."    As Officer Fisher "started going toward

[appellant] to pat him down," appellant raised his arms.   The

officer also testified that he had no reason to suspect appellant

was armed and dangerous.   Instead, for his own safety and the

safety of the officer who would be in the car with him and

appellant, Fisher "just wanted to pat [appellant] down just to

make sure" he was unarmed.

     While conducting the pat-down, Officer Fisher felt a "small

cylinder type round object" in appellant's front jacket pocket.

He removed it and said to appellant, "[T]his is a crack pipe."

After appellant and Officer Fisher discussed the pipe, Fisher

transported him to the police station.   At the police station,

appellant waived his Miranda rights and made a statement to

Fisher.   Appellant admitted that he broke into Parsons's residence



                                - 3 -
and took a microwave oven.   He said he took the microwave because

Parsons owed him money.

     Appellant was charged with the instant offenses and moved to

suppress.   He argued Officer Fisher lacked reasonable suspicion to

believe he was armed and dangerous and could have avoided any

threat to his safety by "interrogat[ing]" appellant at the scene

rather than transporting him to the station.   The Commonwealth

argued reasonable suspicion of a completed crime was sufficient to

support a frisk when coupled with the heightened safety risk

presented by an officer's traveling with a suspect in a vehicle.

The trial court held (1) that Officer Fisher acted reasonably in

approaching appellant to question him about the burglary and (2)

that frisking appellant prior to transporting him in Fisher's

police cruiser was reasonable to ensure the officers' safety.

     The court subsequently tried appellant on pleas of not guilty

and convicted him of breaking and entering, possession of cocaine,

and petit larceny.

                               II.

     On appeal of a ruling on a motion to suppress, we view the

evidence in the light most favorable to the prevailing party, here

the Commonwealth, granting to the evidence all reasonable

inferences deducible therefrom.   Commonwealth v. Grimstead, 12

Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).   "[W]e are bound by

the trial court's findings of historical fact unless 'plainly

wrong' or without evidence to support them," McGee v.

                               - 4 -
Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en

banc), but we review de novo the trial court's application of

defined legal standards such as probable cause and reasonable

suspicion to the particular facts of the case, Ornelas v. United

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d

911 (1996).

     Under settled principles, in order to conduct a pat-down

weapons frisk, an officer must (1) rightly be in the presence of

the party frisked so as to be endangered if the person is armed,

see 4 Wayne R. LaFave, Search and Seizure § 9.5(a), at 246 (3d ed.

1996), and (2) have reasonable suspicion that the person may, in

fact, be armed and dangerous, see, e.g., Phillips v. Commonwealth,

17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993).   The requirement

that an officer be rightly in the presence of the person frisked

means that the officer must have a duty to be in the person's

presence, such as to conduct an investigatory stop or to arrest

some other person.   See LaFave, supra, at 247 (citing Terry v.

Ohio, 392 U.S. 1, 32-33, 88 S. Ct. 1868, 1885-86, 20 L. Ed. 2d 889

(1968) (Harlan, J., concurring)).   "[A] frisk for self-protection

cannot be undertaken when the officer has unnecessarily put

himself in a position of danger by not avoiding the individual in

question."    Id.

     Here, at the hearing on his motion to suppress, appellant

said Officer Fisher could have "interrogated him" at the scene and

argued only that Officer Fisher lacked reasonable suspicion to

                               - 5 -
believe he was armed and dangerous, thereby implicitly conceding

the existence of reasonable suspicion for the detention and

questioning.   The trial court held Officer Fisher's frisking

appellant was reasonable because Fisher (1) had reasonable

suspicion to believe appellant had committed the burglary1 and (2)


     1
       The trial court made the following statement in denying
the motion:

          [T]he evidence clearly indicates to the
          court that Officer Fisher responded to a
          possible burglary. When he got there he
          spoke to the victim who was missing a
          microwave. Then he spoke to the neighbor
          across the street who said that [appellant]
          tried to sell him a microwave, so I don't
          find it unusual at all that . . . Officer
          Fisher[] approached [appellant] knowing his
          history ranging from alcohol to drugs.
          [Appellant] made no objection to going down
          to the station and being questioned. I
          can't imagine a police department in the
          United States that doesn't have as a matter
          of policy you must search somebody before
          you put them in a cruiser to transport them.
          The officer said he did it for his own
          safety. I find nothing unreasonable or
          unusual about the officer's actions . . . .

Although the trial court did not use the words, "reasonable
suspicion," the court's recitation of the above facts, viewed in
conjunction with the Commonwealth's argument that Officer Fisher
had reasonable suspicion to believe appellant had been involved
in a completed crime, support the conclusion that the trial
court simply adopted the Commonwealth's argument as the basis
for its denial of the suppression motion.
     Further, "[a]bsent clear evidence to the contrary in the
record, the judgment of a trial court comes to us on appeal with
a presumption that the law was correctly applied to the facts."
Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286,
291 (1977). Here, as discussed infra in the text, clear
evidence in the record establishes only that the trial court
erred in upholding the pat-down because no evidence proved
appellant may have been armed and dangerous and Officer Fisher

                               - 6 -
was about to transport appellant in his police cruiser.     These

facts, standing alone, were insufficient to justify the frisk.

The trial court did not find appellant was armed and dangerous,

and Officer Fisher expressly testified he had no reason to believe

appellant was armed and dangerous.      Thus, the trial court's stated

basis for denying the suppression motion was erroneous.

     Nevertheless, if Officer Fisher had probable cause to arrest

appellant, the frisk of appellant was lawful as a search

incident to arrest.   Rawlings v. Kentucky, 448 U.S. 98, 111, 100

S. Ct. 2556, 2564-65, 65 L. Ed. 2d 633 (1980) (holding search

may precede formal arrest so long as police have probable cause

to arrest at time of search).   Although Officer Fisher testified

he did not arrest appellant before the frisk search, that

circumstance is not dispositive of Fisher's right to search

incident to arrest.   Id.

     In determining whether an officer had probable cause to

arrest, "the officer's subjective beliefs are irrelevant."

Dickerson v. Commonwealth, 35 Va. App. 172, 183, 543 S.E.2d 623,




expressly testified he had no basis for harboring such a belief.
Based on the presumption and the existence of evidence to
support a finding that Officer Fisher had reasonable suspicion
to believe appellant committed the burglary and theft, we
conclude the trial court made this preliminary finding before
concluding erroneously that the need to assure officer safety
during such an encounter supported the weapons frisk.
     Thus, we hold the trial court's denial of the motion
constituted a ruling that Officer Fisher had reasonable
suspicion for the detention and questioning.

                                - 7 -
628 (2001); see also Whren v. United States, 517 U.S. 806,

812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996).

          The legal standard of probable cause, as the
          term suggests, relates to probabilities that
          are based upon the factual and practical
          considerations in everyday life as perceived
          by reasonable and prudent persons. The
          presence or absence of probable cause is not
          to be examined from the perspective of a
          legal technician. Rather, probable cause
          exists when the facts and circumstances
          within the officer's knowledge, and of which
          he has reasonably trustworthy information,
          alone are sufficient to warrant a person of
          reasonable caution to believe that an
          offense has been or is being committed.

Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836

(1981).

     The evidence, viewed in the light most favorable to the

Commonwealth, proved that when Officer Fisher first approached

appellant, he knew someone had broken into Parsons's trailer and

taken his microwave oven.   Officer Fisher was aware that

appellant had a "drug problem."   Sleeth told Officer Fisher he

had seen a microwave oven on appellant's porch earlier and that

appellant had offered to sell the microwave to him.   Officer

Fisher told appellant a witness "said [appellant] [had] the

[stolen] microwave earlier in the evening."   Sleeth testified at

trial that he was "pretty familiar" with Parsons's microwave

oven because he had "used it quite frequently" and had cooked

meals in it when he lived with Parsons for a week.




                               - 8 -
     We hold this evidence established that Officer Fisher had

probable cause to believe appellant possessed the microwave that

had been taken by burglary from Parsons's residence.    Once the

police have probable cause to arrest, it is not "particularly

important that the search preceded the arrest rather than vice

versa."     Rawlings, 448 U.S. at 111, 100 S. Ct. at 2564.

Therefore, the trial judge did not err in denying the motion to

suppress.

     It is true that the issue of probable cause to arrest was

not expressly presented to the trial court and that the record

contains no indication the trial court considered this issue

directly. 2   Nevertheless, appellant implicitly conceded the


     2
       A panel of this Court previously stated in dicta that the
right-result-wrong-reason doctrine "may not be used if the
correct reason for affirming . . . was not raised in any manner
at trial." Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417
S.E.2d 312, 313-14 (1992). However, a majority of this Court,
sitting en banc, recently implicitly refused to apply that
principle where the majority believed that application of the
right-result-wrong-reason doctrine did not require findings of
fact in addition to those already made by the trial court.
McCracken v. Commonwealth, 39 Va. App. 254, 260-62, 572 S.E.2d
493, 496-97 (2002) (en banc) (on appeal of conviction based in
part on trial court's ruling that officer had reasonable
suspicion to perform weapons frisk that led to discovery of
marijuana, holding frisk was justified by existence of probable
cause to arrest defendant for trespass without discussing fact
that "existence of probable cause to arrest for trespass or any
other crime was not raised at trial as a basis for justifying"
search, McCracken, 39 Va. App. at 272, 572 S.E.2d at 502 (Elder,
J., concurring in part and dissenting in part)); id. at 272, 572
S.E.2d at 502 (Elder, J., concurring in part and dissenting in
part) (noting that "the trial court gave no indication that it
considered [the issues of probable cause to arrest for trespass
or standing to challenge the deputy's entry of the residence
where the frisk occurred] or made any of the additional factual

                                 - 9 -
existence of reasonable suspicion to "interrogate[]" him about

the burglary and theft; the Commonwealth expressly argued the

existence of reasonable suspicion regarding theft of the

microwave; and the trial court held Officer Fisher had

reasonable suspicion for the detention and questioning.    In

concluding on appeal that Officer Fisher had probable cause to

arrest, we hold only that the uncontested facts establishing

reasonable suspicion also proved the "greater" legal theory of

probable cause to arrest.   See McLellan v.Commonwealth, 37

Va. App. 144, 155, 554 S.E.2d 699, 704 (2001) (noting that

doctrine permitting appellate court to affirm on alternate

ground requires that "the correct reason and its factual basis

were presented at trial"); Driscoll v. Commonwealth, 14 Va. App.

449, 452, 417 S.E.2d 312, 314 (1992) (holding doctrine does not

apply if additional factual findings are required).   Under these

facts, the theory on which we affirm was before the trial court

by implication.   Compare Eason v. Eason, 204 Va. 347, 352, 131

S.E.2d 280, 283 (1963) (holding Court could not affirm on ground

different from that applied by trial court because doing so

would require Court to "recognize and uphold a different

defense[,] . . . estoppel by inconsistent conduct, based upon

the releases, [which] was not properly asserted in the


findings critical to . . . resolution [of those issues]" beyond
a subsidiary finding that the person who telephoned police about
the defendant's presence in the house was its owner).


                              - 10 -
pleadings" and was not "before [the trial court] . . . in any

manner").

     Accordingly, we affirm the convictions.

                                                        Affirmed.




                             - 11 -
Benton, J., dissenting.

       The Commonwealth argues on appeal that Officer Fisher's

search of Edward Brian Williams was a search incident to arrest.

At the suppression hearing and at trial, however, the

Commonwealth's attorney did not make this argument.   Indeed,

prior to this appeal, the Commonwealth never asserted that the

officer had probable cause to arrest Williams when he searched

him.

       At the hearing on the motion to suppress the evidence, the

Commonwealth's attorney argued the frisk was lawful because "it

was reasonable for the officer to have a fear that [Williams]

may be armed and dangerous . . . when he's getting into a

[police] vehicle where both the officers are in the front seat

with their backs turned to the defendant."   When the judge

considered the arguments and ruled on the motion, he made

findings that do not suggest he ever considered this matter

through the prism of a Terry analysis.    He found as follows:

               Officer Fisher responded to a possible
            burglary. When he got there he spoke to
            [Parsons] who was missing a microwave. Then
            he spoke to the neighbor across the street
            who said that [Williams] tried to sell him a
            microwave, so I don't find it unusual at all
            that this officer, Officer Fisher,
            approached [Williams] knowing his history
            ranging from alcohol to drugs. The
            defendant made no objection to going down to
            the station and being questioned. I can't
            imagine a police department in the United
            States that doesn't have as a matter of
            policy you must search somebody before you
            put them in a cruiser to transport them.

                               - 12 -
        These findings do not indicate the judge found that the

neighbor informed the officer he recognized the microwave to be

the same or similar to the one taken from Parsons's residence.

No evidence proved how close the neighbor was to the microwave

oven when he saw it on Williams's porch.    The officer merely

testified that Parsons and the neighbor were explaining to him

that Williams "had offered [the neighbor] the microwave earlier

in the evening."    Indeed, the judge found that the neighbor said

Williams "tried to sell him a microwave."     (Emphasis added).

        The issue whether this evidence established either

reasonable suspicion or the greater standard of probable cause

was not before the trial judge.    The trial judge, therefore, did

not make factual determinations about what the officer knew

concerning the prior thefts or the identity of the microwave

oven.    Consequently, he made no findings to establish whether

the evidence was sufficient for either reasonable suspicion or

probable cause.

        Our appellate review is circumscribed by the issues put

forth in the arguments advanced at trial and the judge's ruling.

We have held that this limitation on our power occurs when the

suggested alternative "reason for affirming the trial [judge]

was not raised in any manner at trial" and "where, because the

trial [judge] has . . . confined [the] decision to a specific

ground, further factual resolution is needed."     Driscoll v.

Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313-14

                                - 13 -
(1992).   See also Stateren v. Montgomery Ward and Co., 234 Va.

303, 305-06, 362 S.E.2d 324, 326 (1987) (finding the "right

result wrong reason" rule inappropriate because the trial judge

confined his decision to a specific ground); Sheler v.

Commonwealth, 38 Va. App. 465, 475 n.1, 566 S.E.2d 203, 208 n.1

(2002) (holding that because the trial judge limited his

analysis and failed to resolve a factual matter this Court will

not reach the alternate issue).

     The trial judge's findings only reflect the judge's belief

that Williams volunteered to go to the police station for

questioning.   Relying on the officer's testimony that "he

[frisked Williams] for his safety," the trial judge found

"nothing unreasonable or unusual about the officer's actions and

[denied] the suppression motion."   In so finding, the trial

judge apparently relied on his intuition because the officer

unambiguously testified that he did not suspect Williams was

armed and dangerous and that he did not arrest Williams.

     The evidence proved that when the officer frisked Williams,

he had not arrested Williams, had not sought or obtained

Williams's consent for the frisk, and had no apprehension that

Williams was armed and dangerous.   The officer testified that

Williams had agreed to get into the police car with the two

officers and accompany them to police headquarters to discuss

the complaint.   He also testified Williams was free not to go to

the station with the officers.    Thus, the officer testified that

                              - 14 -
he searched Williams solely because he was entering the police

car.   We held in Sattler v. Commonwealth, 20 Va. App. 366, 457

S.E.2d 398 (1995), that such a search was unreasonable.

              The Fourth Amendment prohibits
           unreasonable searches and seizures.
           "Whether a search . . . 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." To conduct a patdown search, a
           police officer must be able to "'"point to
           specific and articulable facts which, taken
           together with rational inferences from those
           facts,"' reasonably lead him to conclude,
           'in light of his experience, that "criminal
           activity may be afoot" and that the suspect
           "may be armed and presently dangerous."'"
           . . . [W]e [have] held that it was
           unreasonable for police officers to conclude
           that a person on a motor scooter was armed
           and dangerous because a police officer saw a
           bulge in the person's pocket following a
           traffic stop.

              The evidence at the suppression hearing
           failed to prove that the officer had
           specific and articulable facts upon which to
           conclude that [the individual] was armed and
           dangerous. The officer initially detained
           [him] solely for the purpose of issuing a
           summons for a traffic infraction. [He] was
           not under arrest. The officer offered no
           reason to support a belief that [he] was
           armed or dangerous or that he possessed
           illegal drugs.

              The officer searched [him] solely because
           of his general policy of searching every
           person entering his vehicle. In every
           encounter, "Terry requires reasonable,
           individualized suspicion before a frisk for
           weapons can be conducted." The officer's
           generalized policy of frisking all persons
           does not satisfy the restrictions imposed by

                              - 15 -
          Terry. "Indeed, if everyone is assumed to
          be armed and dangerous until the officer is
          satisfied that he or she is not, then
          officers would be able to frisk at will -- a
          result not contemplated by the Fourth
          Amendment."

Id. at 368-69, 457 S.E.2d at 399-400 (citations omitted).    See

also Harrell v. Commonwealth, 30 Va. App. 398, 517 S.E.2d 256

(1999).

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

in ruling that the frisk of Williams was a reasonable search

under the Fourth Amendment and, consequently, he erred in not

suppressing the cocaine and the confession.   See Davis v.

Commonwealth, 37 Va. App. 421, 435, 559 S.E.2d 374, 380 (2002).

Thus, I would reverse the convictions.




                             - 16 -
