                  COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia


DERECK LAMONT HOLMES, S/K/A
 DERRICK LAMONT HOLMES
                                         MEMORANDUM OPINION * BY
v.   Record No. 0629-00-3                 JUDGE ROBERT P. FRANK
                                             JANUARY 30, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                      James F. Ingram, Judge

          S. Jane Chittom, Appellate Defender (Public
          Defender Commission, on brief), for
          appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Dereck Lamont Holmes (appellant) was convicted in a bench

trial of two counts of felonious assault and battery of a police

officer in violation of Code § 18.2-57(C), one count of impeding

a police officer in violation of Code § 18.2-460(C) and one

count of possession of cocaine in violation of Code § 18.2-250.

On appeal, he contends the trial court erred in finding the

evidence was sufficient to support his convictions and in

denying his motion to suppress.   Finding no error, we affirm the

convictions.


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

     On June 16, 1998, at 4:30 a.m., Danville Police Officer

L.R. Kennedy was on patrol when he saw a 1988 two-door Pontiac

with Virginia license plates driving backwards on Berryman

Avenue onto East Stokes Street.   Kennedy stopped the vehicle.

While the officer performed field sobriety tests on the driver,

appellant, who was a passenger, got out of the car and moved to

the sidewalk.   Officer Kennedy observed that appellant appeared

to be intoxicated.   Appellant was staggering and had a dazed

look about his person and on his face.

     Concerned for his safety while he dealt with the driver,

Kennedy asked appellant to get back in the car.   Appellant did

not comply.   Officer Kennedy repeated his request.   He asked

appellant to get into the car between six and eight times before

appellant finally complied.

     Officer Kennedy ultimately arrested the driver for driving

under the influence.   The driver asked that Officer Kennedy

leave the vehicle on the side of the road.   Officer Kennedy

approached the passenger side of the car and told appellant to

get out of the car so that he could perform an inventory search,

which he was required to do by department policy.     Officer

Kennedy believed that appellant was intoxicated so he told

appellant he was going to check his sobriety.   After about ten

to fifteen seconds, appellant got out of the vehicle and, when

he did so, Kennedy saw a large bulge in his right front pocket.

                               - 2 -
The large bulge was approximately the size of a baseball.       The

officer could not tell what was in appellant's pocket.

     The bulge in appellant's pocket, as observed by Kennedy,

was "a large indiscriminate bulge."     He stated, "It didn't

appear to have any corners or particular shape, but still it was

enough of a bulge that would stand out to a noticeable degree

that it would catch my attention."      He said the bulge was

thicker than it was long.    He agreed that the bulge could have

been the length and approximate thickness of a baseball, but

said he had seen pistols smaller than a baseball.     As to whether

the object was flat or bulging out, Kennedy said the object was

bulging, but he could not tell whether it was flat, square, or

rectangular.   Kennedy did not have an opportunity to search

inside appellant's pocket.

     As appellant left the vehicle, he was still staggering.

Kennedy could smell alcohol "coming from his breath" and his

eyes were bloodshot and glassy.   Officer Kennedy told appellant

to put his hands on top of the vehicle so he could perform a

pat-down for weapons.   Appellant told Kennedy, "No," and then

put his right hand in his right front pocket, the same pocket

containing the bulge.   Appellant made no aggressive motion until

Kennedy announced the pat-down.   Officer Kennedy reached out to

stop him because he believed appellant "may have had a pistol in

his pocket."   As Officer Kennedy reached out to grab appellant's



                                - 3 -
hand, he made contact with appellant's pocket and felt a hard

object, but could not identify the object.

        Appellant then bent his knees, squatting slightly, and came

up with both hands, shoving Kennedy in the chest with his right

hand.    His left hand made contact with Officer Hyler.   The two

officers were pushed back eight to twelve inches.

        As both officers attempted to grab appellant, all three

fell to the sidewalk.    A struggle that lasted for approximately

seven to ten minutes ensued.    During the struggle, both officers

tried to handcuff appellant.    Kennedy used chemical mace on

appellant, but appellant continued to struggle.    Appellant had

both fists balled up but he was not striking the officers with

his fists.    He was trying to pull free from their grasp.

Officer Kennedy was hit "with a few elbows and I was kneed a

couple of times, close to the groin area."    Appellant, during

the struggle, also struck Officer Hyler in the chest with his

elbows.

        The two officers managed to handcuff appellant in front,

and then, after a third officer arrived, they cuffed appellant's

hands behind his back.    Officer Kennedy then searched appellant

and found lighters, tissues, change, papers, and a homemade

smoking device in appellant's right front pocket, the same

pocket where Kennedy initially saw the bulge.




                                 - 4 -
     Appellant, while admitting to having tissues, a lighter,

and a crack pipe in his pocket, denied there was a bulge in his

pocket and denied reaching into the pocket.

     When ruling on the suppression motion, the trial court

found:

               Then he was finally ordered to step out
          of the car, and due to his behavior and his
          demeanor, the police had reason to believe
          that he was probably under the influence of
          alcohol or some other substance. Now, at
          that point in time, the officer noticed that
          the defendant had a bulge in his right front
          pocket. After he saw the bulge, he told the
          defendant that he was going to frisk him or
          to pat him down. Now, at that point in
          time, the officer had observed the defendant
          had been staggering, he'd smelled the odor
          of alcohol and when the defendant said "no",
          up until that point I think that we have a
          question here that a reasonable pat down
          might be called into order. But the
          defendant's behavior at that point took a
          different turn. He initially began to move
          his hand toward his right front pocket and,
          in fact, reach into his pocket at which time
          the officer reached out to stop the
          defendant, believing that he might have had
          a weapon and felt a hard object. I think at
          that point the Court has to look at the
          circumstances in determining the officers
          behavior as to whether they were reasonable
          or not: We are in the middle of the night,
          a dark street, there has just occurred a
          violation of the law and the behavior of the
          defendant at that time became suspicious.
          It was obvious that he was attempting to
          avoid the officers touching him and when he
          made a movement toward his pocket I think
          that the officer had, at that point in time,
          the right to protect himself, to ensure that
          he could pursue his investigation further
          without harm coming to himself.



                              - 5 -
                          II.   ANALYSIS

     Appellant first contends the police did not have a

reasonable basis to believe he was carrying a weapon.    He states

three reasons for this contention: 1) the officer only had a

generalized belief, 2) the bulge could not reasonably have been

thought to be a weapon, and 3) being drunk in public cannot

justify a pat-down, citing Lovelace v. Commonwealth, 258 Va.

588, 522 S.E.2d 856 (1999).

               At a hearing on a defendant's motion to
          suppress, the Commonwealth has the burden of
          proving that a warrantless search or seizure
          did not violate the defendant's Fourth
          Amendment rights. See Simmons v.
          Commonwealth, 238 Va. 200, 204, 380 S.E.2d
          656, 659 (1989); Alexander v. Commonwealth,
          19 Va. App. 671, 674, 454 S.E.2d 39, 41
          (1995). On appeal, we view the evidence in
          the light most favorable to the prevailing
          party, granting to it all reasonable
          inferences fairly deducible therefrom. See
          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[,] 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) (citing
          Ornelas v. United States, 517 U.S. 690, 699,
          116 S. Ct. 1657, 1659, 134 L.Ed.2d 911
          (1996)). However, 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. See Shears v. Commonwealth, 23
          Va. App. 394, 398, 477 S.E.2d 309, 311
          (1996); see also Ornelas, 517 U.S. at 699,
          116 S. Ct. at 1659.


                                - 6 -
Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359

(1999).

     "Once a police officer has properly detained a suspect for

questioning, 1 he may conduct a limited pat-down search for

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) (citations omitted).

                 It is not unreasonable for a police
            officer to conduct a limited pat-down search
            for weapons when the officer can point to
            "specific and articulable facts" "which
            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.'"

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

(1996) (citations omitted).

                 "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 (citation

omitted).

     Appellant's argument presupposes there was a pat-down.

However, the record establishes that a pat-down did not occur.


     1
       Appellant does not contest validity of the stop or
detention or his removal from the vehicle.


                                - 7 -
While the officer intended to pat appellant down, appellant's

actions prevented the officer from doing so.    The trial court

found, and we agree, that upon appellant reaching into his

pocket that contained the bulge, the officer reached to grab

appellant's hand to protect himself and only incidentally

touched the bulge.    We, therefore, need not address whether or

not the officer reasonably believed appellant might be armed and

dangerous.    Once appellant pushed both officers away and engaged

in a struggle with the officers, the officers had probable cause

to arrest appellant for felony assault and battery.    Further,

since appellant was staggering and had a dazed look, bloodshot

eyes, and an odor of alcohol about his person, the officers also

had probable cause to arrest appellant for being drunk in

public. 2   The subsequent search was valid as a search incident to

a lawful arrest.

                  "[T]he test of constitutional validity
             [of a warrantless arrest and incidental
             search] is whether . . . the arresting
             officer had knowledge of sufficient facts
             and circumstances to warrant a reasonable
             man in believing that an offense has been
             committed." Bryson v. Commonwealth, 211 Va.
             85, 86-87, 175 S.E.2d 248, 250 (1970). To
             establish probable cause, the Commonwealth
             must show "'a probability or substantial
             chance of criminal activity, not an actual
             showing'" that a crime was committed. Ford
             v. City of Newport News, 23 Va. App. 137,
             143-44, 474 S.E.2d 848, 851 (1996) (quoting

     2
       Although public drunkenness is a Class 4 misdemeanor,
pursuant to Code § 19.2-74(A)(2), the police are authorized to
arrest the accused and not merely issue a summons.


                                - 8 -
            Illinois v. Gates, 462 U.S. 213, 243 n.13,
            103 S. Ct. 2317, 2335 n.13, 76 L.Ed.2d 527
            (1983)). Ordinarily, the Fourth Amendment
            requires only that an objectively reasonable
            basis exist for a search. See, e.g., Whren
            v. United States, 517 U.S. 806, 812-13, 116
            S. Ct. 1769, 1774, 135 L.Ed.2d 89 (1996).
            "'[T]hat 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. at 813, 116 S. Ct. at
            1774 (quoting Scott v. United States, 436
            U.S. 128, 138, 98 S. Ct. 1717, 1723, 56
            L.Ed.2d 168 (1978)).

Debroux v. Commonwealth, 32 Va. App. 364, 381, 528 S.E.2d 151,

159, aff'd on reh'g en banc, 34 Va. App. 72, 537 S.E.2d 630

(2000).

     In this case, because the officer did not pat-down

appellant and because the police found the cocaine during a

search incident to a lawful arrest, we affirm the trial court's

denial of the motion to suppress.

     Appellant next contends the trial court erred in convicting

appellant of two counts of assault and battery of police

officers.   Specifically, he argues no evidence indicated he

intentionally caused the officers bodily harm.   He further

contends he had a right to resist an unlawful search.

Similarly, he contends the trial court erred in convicting him




                                - 9 -
of "obstruction of justice" under Code § 18.2-460 because the

officers were not "lawfully engaged" in their duties. 3

     As we stated in Perkins v. Commonwealth, 31 Va. App. 326,

523 S.E.2d 512 (2000):

                 An assault and battery is the unlawful
            touching of another. See Gnadt v.
            Commonwealth, 27 Va. App. 148, 151, 497
            S.E.2d 887, 888 (1998). Assault and battery
            is "the least touching of another, willfully
            or in anger." Roger D. Groot, Criminal
            Offenses and Defenses in Virginia 29 (4th
            ed. 1998). The defendant does not have to
            intend to do harm; a battery may also be
            "done in a spirit of rudeness or insult."
            Id. (footnote omitted). The touching need
            not result in injury. See Gnadt, 27 Va.
            App. at 151, 497 S.E.2d at 888. A touching
            is not unlawful if the person consents or if
            the touching is justified or excused. See
            id.; Groot, supra, at 30 ("an intentional
            touching which was not justified or excused
            is a battery").

Id. at 330, 523 S.E.2d at 513.




     3
         Code § 18.2-460(C) states:

                 If any person by threats of bodily harm
            or force knowingly attempts to intimidate or
            impede a judge, magistrate, justice, juror,
            witness, or any law-enforcement officer,
            lawfully engaged in the discharge of his
            duty, or to obstruct or impede the
            administration of justice in any court
            relating to a violation of or conspiracy to
            violate § 18.2-248 or § 18.2-248.1 (a) (3),
            (b) or (c), or relating to the violation of
            or conspiracy to violate any violent felony
            offense listed in subsection C of
            § 17.1-805, he shall be guilty of a Class 5
            felony.

                               - 10 -
       Whether a touching is a battery depends on the intent of

the actor, not on the force applied.       Wood v. Commonwealth, 149

Va. 401, 405, 140 S.E. 114, 115 (1927).

       Appellant admits he pushed both officers.     This act, alone,

is an unlawful, willful touching done "in a spirit of rudeness

or insult."   Further, appellant engaged the officers in a

struggle that resulted in all three participants being thrown to

the ground.   In the ensuing struggle, appellant kneed one

officer and elbowed both officers.       The fact finder could

reasonably find an "unlawful, willful touching" that was "done

in a spirit of rudeness and insult."

       As noted earlier, the police had probable cause to arrest

appellant for public drunkenness.    While appellant relies on

Lovelace for his contention that the police cannot pat-down a

person suspected of committing a Class 4 misdemeanor, he

misreads Code § 18.2-460(C) set forth in footnote three above.

       Further, Lovelace does not support appellant's argument.

Rather, it addresses "search incident to citation" as expounded

in Knowles v. Iowa, 525 U.S. 113 (1998).       Lovelace, 258 Va. at

593-94, 522 S.E.2d at 858-59.    In Lovelace, the Supreme Court of

Virginia opined that when a suspect is stopped for an offense

that only gives rise to a citation or summons, a "full

field-type search" is not allowed.       Id. at 594, 522 S.E.2d at

859.   The Court wrote, "Because the nature and duration of such

an encounter are significantly different and less threatening

                                - 11 -
than in the case of an officer effecting a custodial arrest, the

rationales justifying a full field-type search are not

sufficient to authorize such a search incident to the issuance

of a citation."    Id.   Yet Lovelace, citing Knowles, did not bar

a "pat-down" in a citation situation under the proper

circumstances.    Id. at 594, 522 S.E.2d at 858-59.   The Court

wrote, "However, the Supreme Court recognized that the concern

for officer safety is not absent in a routine traffic stop and

may justify some additional intrusion.    However, by itself, it

does not warrant the greater intrusion accompanying 'a full

field-type search.'"     Id. at 594, 522 S.E.2d at 858 (citation

omitted).

     The Court further opined:

                 We believe that the scope of these
            further intrusions is limited to what is
            necessary to answer the concerns raised by
            the presence of either historical rationale.
            In other words, an encounter between a
            police officer and an individual that is
            similar to a routine traffic stop and
            results in the issuance of a citation or
            summons may involve some degree of danger to
            the officer or some need to preserve or
            discover evidence sufficient to warrant an
            additional intrusion, but it will not
            necessarily justify a full field-type
            search.

Id. at 594, 522 S.E.2d at 859.

     We conclude from Lovelace that, even in a citation offense,

the officer may pat-down the suspect if the officer reasonably

believes that the suspect might be armed and dangerous.


                                - 12 -
     Assuming, without deciding, that appellant had a right to

resist an unlawful pat-down, we find the officers were "lawfully

engaged in the discharge of [their] duties."   Appellant was

properly convicted of assault and battery on police officers and

impeding a police officer.

     For these reasons, we affirm appellant's convictions.

                                                         Affirmed.




                             - 13 -
