                        COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia


JAMES DANIEL PRESSLEY
                                           MEMORANDUM OPINION * BY
v.   Record No. 2710-01-2               JUDGE JEAN HARRISON CLEMENTS
                                              JANUARY 21, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge

          Cynthia E. Payne, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

          Margaret W. Reed, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General;
          Donald E. Jeffrey, III, Assistant Attorney
          General, on brief), for appellee.


     James Daniel Pressley was convicted on his conditional plea

of guilty of possession of cocaine with intent to distribute, in

violation of Code § 18.2-248.    On appeal, he contends the trial

court erred in denying his motion to suppress the cocaine found in

his pants by the police as the product of a warrantless pat-down

search and seizure that violated his Fourth Amendment rights.

Finding no error, we affirm the judgment of the trial court.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential


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

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

'[t]he burden is upon [the defendant] to show that th[e] 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) (alterations in original) (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)).   However, "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."   Id. at 198, 487 S.E.2d at 261 (citing

Ornelas, 517 U.S. at 699).

     On appeal, Pressley asserts he was "seized" when several

uniformed police officers surrounded him on a street corner and

Officer Ryan Hickson began to conduct a pat-down search of his

person.   That seizure, Pressley contends, was unlawful because

Hickson did not have grounds to support a reasonable suspicion of

criminal activity before conducting the search.   Hickson's

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observation of Pressley shoving something inside the back of his

pants, where Hickson then observed a large bulge, amounted to

nothing more than a hunch that the bulge may have been drugs or a

weapon, Pressley maintains.   Thus, Pressley concludes, the

pat-down search by Hickson violated his Fourth Amendment rights

and the trial court erred in refusing to suppress the cocaine, a

product of the unlawful warrantless seizure and search.

     Under well-established Fourth Amendment principles, "[t]he

police can stop and briefly detain a person for investigative

purposes if the officer has a reasonable suspicion supported by

articulable facts that criminal activity 'may be afoot.'"     United

States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio,

392 U.S. 1, 30 (1968)).   "Actual proof that criminal activity is

afoot is not necessary; the record need only show that it may be

afoot."   Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d

77, 79 (1992).   However, the police's "justification for stopping

appellant . . . must have been based upon more than an 'inchoate

and unparticularized suspicion or "hunch."'"    Harris v.

Commonwealth, 33 Va. App. 325, 333, 533 S.E.2d 18, 21 (2000)

(quoting Terry, 392 U.S. at 27), rev'd on other grounds, 262 Va.

407, 551 S.E.2d 606 (2001).

     In addition, "[t]here are no bright line rules to follow when

determining whether a reasonable and articulable suspicion exists

to justify an investigatory stop."     Hoye v. Commonwealth, 18

Va. App. 132, 135, 442 S.E.2d 404, 406 (1994).    Indeed, as the

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Supreme Court stated in Illinois v. Wardlow, 528 U.S. 119, 124-25

(2000):

             In reviewing the propriety of an officer's
             conduct, courts do not have available
             empirical studies dealing with inferences
             drawn from suspicious behavior, and we cannot
             reasonably demand scientific certainty from
             judges or law enforcement officers where none
             exists. Thus, the determination of
             reasonable suspicion must be based on
             commonsense judgments and inferences about
             human behavior.

In making that determination, "the courts must consider 'the

totality of the circumstances—the whole picture.'"    Hoye, 18

Va. App. at 135, 442 S.E.2d at 406 (quoting Sokolow, 490 U.S. at

8).

      Furthermore, "[a]lthough the authority to conduct a pat-down

search does not follow automatically from the authority to effect

an investigative stop, 'where the officer can "point to particular

facts from which he reasonably inferred that the individual was

armed and dangerous[,]" [he is] justified in searching for

weapons.'"    Harris, 33 Va. App. at 334, 533 S.E.2d at 22

(lattermost alteration in original) (quoting Williams v.

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

(quoting Sibron v. New York, 392 U.S. 40, 64 (1968))).

"Reasonableness is judged from the perspective of a reasonable

officer on the scene allowing for the need of split-second

decisions and without regard to the officer's intent or

motivation."    Scott v. Commonwealth, 20 Va. App. 725, 727, 460


                                 - 4 -
S.E.2d 610, 612 (1995).   "The officer is also entitled 'to view

the circumstances confronting him in light of his training and

experience, and he may consider any suspicious conduct of the

suspected person.'"   Andrews v. Commonwealth, 37 Va. App. 479,

491, 559 S.E.2d 401, 407 (2002) (quoting James v. Commonwealth, 22

Va. App. 740, 745, 473 S.E.2d 90, 92 (1996) (citation omitted));

see also Christian v. Commonwealth, 33 Va. App. 704, 714, 536

S.E.2d 477, 482 (2000) (en banc) (noting that "the unique

perspective of a police officer trained and experienced in the

detection of crime" is a relevant factor in judging the

reasonableness of police conduct).

     Additionally, "the officer does not have to be absolutely

certain that the individual might be armed.   If he reasonably

believes that the individual might be armed, the search is

warranted to protect himself or others who may be in danger."

Simmons v. Commonwealth, 217 Va. 552, 556, 231 S.E.2d 218, 221

(1977).

     Here, the evidence, in the light most favorable to the

Commonwealth, established that, on the afternoon of May 31, 2001,

Officer Hickson was a passenger in one of a group of four police

vehicles patrolling the Clopton and Wise area, a high drug and

crime area south of the James River in the City of Richmond.

Officer Degraw was driving the marked police vehicle, and Officer

Durham was seated behind Hickson.    Officers Bender and Hatchett

were in an unmarked vehicle in front of Hickson's vehicle, and two

                               - 5 -
other police vehicles were behind it.     All of the officers

involved were in uniform displaying their badges of authority.

     At 4:45 p.m., Hickson observed Pressley and two other

individuals standing at the corner of Wise and Clopton Streets.

Officers Bender and Hatchett stopped their vehicle on Clopton

Street in front of Pressley.   Hickson, Degraw, and Durham stopped

on Wise Street approximately fifteen to twenty feet behind

Pressley.    Bender and Hatchett got out of their vehicle and began

talking to the three individuals.    As the two officers approached

the three individuals, Hickson observed that Pressley "had

something in his left hand" and saw him "shove" it into "the back

of his pants."   Hickson testified that, although he was unable to

immediately identify the object Pressley put down his pants, he

definitely saw Pressley's "cupped" left hand, which "appeared to

have something in it," move in a "very, very deliberate motion"

down inside the back of his pants.      Hickson further observed that,

when Pressley pulled his hand back out of his pants, it was

"empty."    Hickson then saw Pressley "immediately" use "both hands

to pull his pants up and then his shirt down over [the object]."

     Having both observed the same motions by Pressley, Degraw and

Durham said, "watch his hands."   Believing they had just seen

Pressley try to hide a "stash" of drugs in his pants, Hickson and

Degraw got out of their vehicle and approached Pressley.

     As he approached Pressley, Hickson observed that "there was a

bulge in the back of [Pressley's] pants" where Pressley had just

                                - 6 -
put his left hand.    Noting that the bulge was "rather large,"

"about the size of [his] palm, maybe a little bit larger," Hickson

became concerned that the bulge might be a weapon that Pressley

had placed in his pants.    Hickson asked Pressley "what he had just

put down his pants."    Pressley's only response was "what."

        Hickson, who had made many drug arrests and recovered weapons

in the area previously, knew there was always "a possibility of

firearms" whenever drugs were involved.    Therefore, for his safety

and the safety of the other officers and people around, Hickson

put his hand to the back area of Pressley's pants where Hickson

saw the bulge and did a protective pat-down with the palm of his

hand.    Hickson testified that, upon feeling the object, he

immediately knew it was narcotics because he felt a soft, crunchy

plastic with a harder material inside.

        At that point, Pressley became agitated and tried to put his

hands in his pants.    Hickson then handcuffed Pressley and searched

him.    Upon lifting Pressley's shirt, Hickson saw that Pressley had

a pair of boxer shorts over which he had two pairs of shorts.       In

between the two layers of shorts, Hickson retrieved a baggy

containing seventy-six plastic baggy corners of an off-white rock

material that subsequently proved to be crack cocaine.

        Based on the totality of these circumstances, we conclude

that Officer Hickson had reasonable cause to believe that Pressley

was unlawfully in possession of illegal drugs or a concealed

weapon and that the limited pat-down search for weapons was

                                 - 7 -
warranted to protect Hickson and others who might be in danger.

Hickson observed Pressley, who was standing on a street corner

with two other individuals in a high drug and crime area,

furtively conceal an object in the back of his pants when

approached by two uniformed police officers.   Hickson, who had

made numerous drug arrests in the area, testified he first

believed Pressley had put illegal drugs down his pants but, upon

approaching Pressley to inquire further, became concerned that, in

light of the size of the bulge it caused, the object was a weapon.

Based on Pressley's suspicious conduct and his noncommittal answer

to Hickson's inquiry asking what Pressley had just put down his

pants, Hickson who, based on his knowledge and experience that

guns were often involved with drugs in the area, reasonably

inferred that the object in Pressley's pants was a weapon.    See

Brown v. Commonwealth, 15 Va. App. 232, 234 n.1, 421 S.E.2d 911,

912 n.1 (1992) (recognizing that "presence in a high crime area"

is a factor that may be considered in assessing whether an

investigatory stop is justified); Logan v. Commonwealth, 19

Va. App. 437, 445, 452 S.E.2d 364, 369 (1994) (en banc) (noting

that "[t]he relationship between the distribution of controlled

substances . . . and the possession and use of dangerous weapons

is now well recognized").

     We conclude, therefore, that because the circumstances

provided Hickson an objective basis for suspecting Pressley was

engaged in criminal activity and that he was armed and dangerous,

                              - 8 -
Hickson's limited pat-down search of Pressley for weapons was not

in violation of Pressley's Fourth Amendment rights. 1   Hence, the

trial court did not err in denying Pressley's motion to suppress.

     Accordingly, we affirm Pressley's conviction.

                                                           Affirmed.




     1
       Because we find that Officer Hickson had a reasonable,
articulable suspicion that Pressley was in possession of illegal
drugs and was armed and dangerous, we do not address the
Commonwealth's argument that the officers had probable cause to
arrest Pressley and search him incident to arrest.


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