                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Elder, Petty and McCullough
UNPUBLISHED


              Argued at Richmond, Virginia


              JONATHAN DONELL BURTON
                                                                             MEMORANDUM OPINION ∗ BY
              v.     Record No. 0013-12-2                                     JUDGE WILLIAM G. PETTY
                                                                                 NOVEMBER 13, 2012
              COMMONWEALTH OF VIRGINIA


                           FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                                            Edward L. Hogshire, Judge

                               Lacey R. Parker, Assistant Public Defender (Office of the Public
                               Defender, on brief), for appellant.

                               Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Jonathan Donell Burton appeals his conviction for possession of cocaine in violation of

              Code § 18.2-250. Burton argues that the trial court erred in overruling his motion to suppress

              evidence found in the course of a search of his person and admitting the evidence at trial. For the

              reasons set forth below, we affirm the judgment of the trial court denying the motion to suppress,

              subject to remand solely for correction of a clerical error in the conviction order. 1

                                                                I.

                     Because the parties are fully conversant with the record in this case and this

              memorandum opinion carries no precedential value, we recite below only those facts and

                     ∗
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                         The trial court’s conviction order states that Burton entered a conditional plea of guilty.
              However, the transcript of the proceedings indicates Burton entered a plea of not guilty and that
              the trial court, after incorporating the testimony given at the hearing on the suppression motion
              and hearing additional evidence at trial, found Burton guilty based on that evidence. Therefore,
              we will remand the case to the trial court for the sole purpose of correcting the clerical error in
              the conviction order.
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal. “On appeal, ‘we review the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).

                                                 II.

       Burton contends that the pat-down search of his person, which ultimately uncovered

cocaine, violated the Fourth Amendment because Officer D.R. Dean did not have the requisite

reasonable suspicion for the pat-down search. 2 We disagree.

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

accused has met his 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). Further, “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 v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d

259, 261 (1997) (en banc). Nevertheless, “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).




       2
         Burton did not argue at trial, or on brief, that the consent he gave to Officer Dean to
search his person after the initiation of the pat-down search was invalid. Therefore, we do not
address whether Burton’s consent to search after the initiation of the pat down was valid.
Instead, we focus our analysis only on whether Officer Dean had reasonable, articulable
suspicion to seize and search Burton.
                                                  -2-
       The Fourth Amendment provides, in pertinent part, that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated . . . .” U.S. Const. amend. IV. A person is entitled to Fourth Amendment

protections when he is walking down the street; however, the degree of protection is determined

by the type of confrontation between the person and the police officer. Terry v. Ohio, 392 U.S.

1, 9 (1968). “Fourth amendment jurisprudence recognizes three categories of police-citizen

confrontations: (1) consensual encounters; (2) brief, minimally intrusive investigatory

detentions, based upon specific, articulable facts, commonly referred to as Terry stops; and

(3) highly intrusive arrests and searches founded on probable cause.” Wechsler v.

Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995) (citations omitted). This

case began as a consensual encounter. 3 It quickly evolved, however, into a non-consensual

encounter when Officer Dean seized Burton in order to pat him down.

       A police officer “may, consistent with the Fourth Amendment, conduct a brief,

investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is

afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30). “There are

no 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.’” Hoye v. Commonwealth, 18 Va. App. 132, 135, 442 S.E.2d

404, 406 (1994) (quoting United States v. Sokolow, 490 U.S. 1, 8 (1989)).

               The circumstances we may consider include “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.”


       3
         The parties agree that the initial encounter between Officer Dean and Burton was
consensual. The disagreement arises as to whether Officer Dean had the requisite reasonable
suspicion to conduct a Terry stop.
                                                -3-
Jones v. Commonwealth, 53 Va. App. 171, 177, 670 S.E.2d 31, 34 (2008) (quoting Smith v.

Commonwealth, 12 Va. App. 1100, 1103, 407 S.E.2d 49, 51-52 (1991)). “[I]n determining

whether the officer acted reasonably in such circumstances, due weight must be given, not to his

inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences

which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 27.

These facts and circumstances are viewed “objectively through the eyes of a reasonable police

officer with the knowledge, training, and experience of the investigating officer.” Murphy v.

Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128 (1989).

       However, reasonable suspicion of criminal activity alone does not warrant a pat down for

weapons. Before a police officer conducts a pat-down search subsequent to a Terry stop, he

must be able to point to “‘specific and articulable facts’” “‘which reasonably lead[] him to

conclude, in light of his experience, . . . that the [person subject to the search] may be armed and

presently dangerous.’” James v. Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92

(1996) (quoting Lansdown v. Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110 (1983)). 4


       4
         Just as reasonable suspicion of criminal activity—standing alone—will not justify a
Terry pat down, neither will reasonable suspicion that an individual is armed—standing
alone—provide such justification.

               “If [a] frisk is justified in order to protect [an] officer during an
               encounter with a citizen, the officer must first have constitutional
               grounds to insist on an encounter, to make a forcible stop. Any
               person, including a policeman, is at liberty to avoid a person he
               considers dangerous. If and when a policeman has a right instead
               to disarm such a person for his own protection, he must first have a
               right not to avoid him but to be in his presence. . . . [T]he right to
               frisk . . . depends upon the reasonableness of a forcible stop to
               investigate a suspected crime.”

United States v. Burton, 228 F.3d 524, 528 (4th Cir. 2000) (quoting Terry, 392 U.S. at 32-33
(Harlan, J., concurring)); see also United States v. Place, 462 U.S. 696, 703 n.4 (1983)
(recognizing that Justice Harlan’s concurrence “made [the] logical underpinning of the Court’s
Fourth Amendment holding in Terry clear”); Adams v. Williams, 407 U.S. 143, 146 (1972) (“So
long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is
                                                 -4-
       In applying the above principles to this case, we must look at “the totality of the

circumstances—the whole picture” of the scene through the eyes of a reasonable officer in

Officer Dean’s position. The picture was fully developed in this case.

       Officer Dean testified that the area in which he encountered Burton was known for both

narcotics and weapon violations. Officer Dean first observed Burton standing in the middle of

the road, at approximately 11:30 p.m., talking with the driver of a truck. Officer Dean had seen

the same truck driving through the neighborhood regularly starting about a month before that

particular night, but he had never seen it parked in any residential areas. That night, he saw the

truck at least twice in the span of an hour in locations indicating it had circled through the

neighborhood. No businesses other than a neighborhood bar were open at that time. Officer

Dean intended to stop the truck to issue a traffic citation for stopping in the middle of the

roadway with a pedestrian. However, the truck drove away before Officer Dean could turn

around.

       Nonetheless, Officer Dean pulled to the side of the road, got out of his patrol car, and

asked Burton, in a conversational tone of voice, “How’s it going?” Burton had been walking in

the opposite direction of Officer Dean but turned around and engaged in conversation. Officer

Dean asked Burton what was going on that night and explained that the truck had drawn his

attention. Officer Dean asked if Burton knew anything about the driver of the truck. Burton

replied that the driver of the truck was his cousin and that he “didn’t have anything to do with

that shit.” It was only then that Officer Dean first mentioned the area’s problem with drugs and

gun violence. During the course of conversation, and in response to further questioning about

narcotics violations and gun violence in the area, Officer Dean noted that Burton became



armed and dangerous, he may conduct a weapons search limited in scope to this protective
purpose.”).

                                                -5-
agitated, was sweating profusely even though the temperature was in the mid to low 30s, and was

cycling through very abrupt extremes of agitation and calm. At trial, Officer Dean testified that

Burton “seemed to be very angry, like he was mad that I was talking to him. He was just very

loud, very abrupt, language was very forceful. . . . His eyes didn’t seem to be reacting to the light

of [the] flashlight or the headlights of [the] vehicle.” Based on these facts, it would certainly be

reasonable for an officer to infer that Burton could have been under the influence of narcotics.

        In addition to Burton’s anger, mood swings, and profuse sweating, Officer Dean noted

that Burton behaved nervously. When Officer Dean asked Burton if he had any weapons, Burton

immediately became more agitated. Furthermore, Burton angled his body in such a way that

Officer Dean was not able to see the left side of Burton’s body. Not only could Officer Dean not

see the left side of Burton’s body, but Burton also appeared to be grabbing, or checking

something on, the left hand pocket of his jacket. At this point, Officer Dean testified that when

he looked at Burton’s behavior, “It indicated to me that he might have been possibly armed and

carrying a weapon without benefit of a holster . . . .” 5

        We conclude that Officer Dean’s suspicion that Burton was involved in some type of

drug activity and could be armed with a firearm was reasonable in light of all of the

circumstances, including Burton’s appearance and behavior—especially his emotional reaction

to Officer Dean’s question as to whether he was armed. These circumstances would certainly

cause a trained, experienced police officer in a situation such as this to verify that the individual



        5
         Under Code § 18.2-308(A), it is a crime to carry a concealed firearm. The evidence
indicated that Officer Dean believed Burton was carrying a concealed firearm. Therefore, this
reasonable suspicion of criminal activity alone would have justified Officer Dean’s pat down of
Burton. See Jones v. Commonwealth, 52 Va. App. 548, 560-61, 665 S.E.2d 261, 267 (2008)
(holding that reasonable suspicion that a person is carrying a concealed weapon provides
reasonable suspicion that criminal activity is afoot); cf. Whitaker v. Commonwealth, 279 Va.
268, 277-78, 687 S.E.2d 733, 738 (2010) (noting that the mere act of carrying of a concealed
weapon provides probable cause for an arrest for violating Code § 18.2-308(A)).
                                                 -6-
he was dealing with was not armed. Therefore, Officer Dean lawfully acted upon his reasonable,

articulable suspicion that Burton was armed and dangerous in performing the pat-down search.

        Accordingly, because Officer Dean had a reasonable, articulable suspicion that criminal

activity was afoot and that Burton was armed and dangerous, we hold that the seizure and

pat-down search did not violate the Fourth Amendment’s protection against unreasonable

searches and seizures.

                                                  III.

        For the foregoing reasons, we affirm Burton’s conviction and remand solely for

correction of the clerical error in the trial court’s conviction order.

                                                           Affirmed and remanded with instructions.




                                                  -7-
