Commonwealth of Virginia v. Richard Hendrick, s/k/a Richard Alvin Hendrick

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, Malveaux and Causey
Argued by videoconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. Record No. 1054-22-2 JUDGE MARY BENNETT MALVEAUX
DECEMBER 29, 2022
RICHARD HENDRICK, S/K/A
RICHARD ALVIN HENDRICK
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Jacqueline S. McClenney, Judge
Lauren C. Campbell, Assistant Attorney General (Jason S. Miyares,
Attorney General, on briefs), for appellant.
Kelsey Bulger, Senior Appellate Attorney (Virginia Indigent Defense
Commission, on brief), for appellee.
Richard Alvin Hendrick was indicted for two counts of possession of a controlled
substance with intent to distribute, in violation of Code § 18.2-248(C). He filed a pretrial motion
to suppress the drug evidence, which he alleged was discovered during an unlawful search of his
car. Following a hearing, the trial court granted the motion and suppressed the evidence.
Pursuant to Code §§ 19.2-398(A)(2) and -400, the Commonwealth appeals the court’s pretrial
ruling. The Commonwealth contends that the drugs’ discovery did not violate the Fourth
Amendment because they were found during a protective sweep based upon a reasonable,
articulable suspicion that Hendrick was dangerous and might access his car to gain control of a
weapon. In the alternative, the Commonwealth argues that even if officers initially lacked
reasonable, articulable suspicion, their discovery of the drugs was attenuated from their initial
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
actions by Hendrick’s later statement about a firearms charge, which provided a basis for a
protective sweep. For the following reasons, we affirm the trial court’s ruling.
I. BACKGROUND
In an appeal by the Commonwealth of a trial court order suppressing evidence, “the
evidence must be viewed in the light most favorable to the defendant,” the party who prevailed
below. Commonwealth v. Peterson, 15 Va. App. 486, 487 (1992). We also “grant all reasonable
inferences fairly deducible from that evidence” to the defendant. Commonwealth v. Grimstead, 12
Va. App. 1066, 1067 (1991).
Shortly before midnight on November 3, 2021, Officers Danko and Gomes of the Richmond
Police Department saw Hendrick turn left after he failed to fully stop at a stop sign. Danko turned
on his lights and siren, and the officers stopped Hendrick’s car. Officer Burgess, who was driving
nearby, arrived to assist as the traffic stop began. All three officers testified at the suppression
hearing that the stop occurred in a neighborhood they consider a high-crime area, although Danko
and Gomes stated that at the time of the stop, they were not investigating any active service call in
the area.
Burgess parked where he had a “good view of [Hendrick’s] driver’s side door.” He stated
that as he “pulled up,” he could see Hendrick “[h]unched over” and “leaning towards the steering
wheel, going toward the floorboard . . . and then he looked back . . . in the mirror.” Burgess testified
that based upon his training and experience, Hendrick’s movements indicated “somebody . . . trying
to conceal something,” and he was “[c]oncerned it[ ] [was] a weapon.” Gomes also testified that as
he was getting out of Danko’s car, he saw Hendrick “make a movement towards the steering
wheel . . . his hands were down toward the floorboard.” Danko, approaching Hendrick’s car from
the driver’s side, heard Burgess say that he “saw [Hendrick] reaching under the seat.”
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Danko walked up to the driver’s side window, where Hendrick, the car’s sole occupant, was
visible sitting upright with his hands in view. 1 After greeting Hendrick, Danko immediately
requested that he step out of the car; he also asked Hendrick if he had any weapons in the car.
Hendrick answered, “[n]o, sir,” and stepped out. Danko handcuffed Hendrick and asked him if he
had any weapons “on [him].” Hendrick replied that he did not. Danko and Burgess conducted a
pat-down search of Hendrick, based upon their location in a high-crime area and Burgess’ statement
that Hendrick had been “reaching under the seat.” Danko testified that such “furtive movements . . .
normally indicate that someone is trying to either stash a firearm or a weapon” and that “at that
point, I thought that Mr. Hendrick might be armed.” Danko also stated that the only reason he
asked Hendrick to get out of his car during the traffic stop was because of Burgess’ statement and
that Hendrick had been polite and cooperative throughout the stop. Burgess and Danko did not find
any weapons on Hendrick.
As soon as Hendrick was handcuffed, Gomes “started to conduct a protective sweep of the
vehicle,” beginning with the driver’s compartment. Hendrick, who was standing with Danko and
Burgess at the rear of his car following the pat down, told the two officers that the mother of his
child lived nearby. When Burgess asked him, “[w]hat were you just reaching around for in the front
seat?”, Hendrick replied that he had been “fixing [his] boot.” He then told the officers that he had
“just c[o]me home” from “a gun charge.”
After hearing Hendrick’s “gun charge” statement, Burgess stepped over to Hendrick’s car
and opened the front passenger’s door to speak with Gomes; at that point, Gomes had been looking
through the driver’s compartment for just over one minute. Burgess told Gomes that Hendrick had
“sa[id] he just came home from a gun charge, felon with a firearm . . . charge.” Gomes testified that
1
Body camera footage from each of the three officers was introduced into evidence at the
suppression hearing and is part of the basis of this factual recitation.
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after hearing this, he continued his protective sweep of the driver’s compartment before moving to
search the back seat area.
Burgess testified that after informing Gomes about Hendrick’s statement, he joined in the
protective sweep. He first examined the front passenger compartment of Hendrick’s car before
moving to the back seat area. During this time, Burgess and Gomes discussed Hendrick’s
movement. Burgess told Gomes, “[d]ude, he was divin’ in the front, so I don’t know if he shoved
some shit down his pants,” and “[h]e definitely was in the front. He had something down his pants,
I think.” He also stated, “[i]f I was a betting man, he put it down his nuts.”
About a minute after joining Gomes, Burgess moved to the driver’s compartment. Seconds
later, a police dispatcher, who had checked Hendrick’s record after officers provided her with his
name and Social Security number, radioed the officers that her check was “showing a probably
armed.” Thirty seconds after the dispatcher imparted this information, Burgess announced to
Gomes, “[o]h, there you go. There’s all the drugs right there.”
Burgess testified that in “a little gap” that was “[u]nder the steering column,” he could see “a
knotted . . . baggie sticking out.” The baggie appeared to contain a white substance. Subsequent
analysis by the Virginia Department of Forensic Science determined that the baggie’s contents
comprised cocaine and a mix of heroin and fentanyl. Burgess stated that the gap where he found the
baggie was in the area where he had seen Hendrick reaching. He also stated that the gap was
sufficient to accommodate a knife or a “small Glock, definitely a Derringer.”
During cross-examination, Burgess acknowledged that during Hendrick’s pat down, he had
specifically checked his groin and “didn’t feel any weapon.” He also stated that “[if] there was a
weapon in [Hendrick’s] pants, yes, I’m pretty confident I would have felt it.” Burgess also testified
that Hendrick had large sums of money on him. He acknowledged that Hendrick had simply told
him that he had a “gun charge,” and “didn’t tell me what gun charge it was” or whether it
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constituted a felony or a misdemeanor; rather, Burgess had “assume[d] it’s a felony gun charge.”
After Burgess found the baggie under the steering column, he “didn’t continue to search the
[driver’s] compartment.”
Hendrick filed a motion to suppress and, following a hearing, the trial court entered an
order granting the motion. The court found that Hendrick
was driving through a high crime area at 11:55 p.m. He was pulled
over for . . . a traffic infraction. When the officers pulled [him]
over . . . , they did not know the identity of the driver. The officers
were not responding to [a] call or actively investigating criminal
activity. They were simply patrolling the area and witnessed a
traffic infraction. As they approached the vehicle, Officer Burgess
called out that he saw [Hendrick] making what he classified as a
“furtive movement”—leaning over the steering wheel and reaching
toward the floorboard. When Officer Danko approached the
driver’s side window, [Hendrick] had his hands on the steering
wheel and was sitting upright. He did not appear nervous and he
made no further “furtive movements.”
Based upon these circumstances, the court held that the officers lacked reasonable, articulable
suspicion to conduct a protective sweep of Hendrick’s car. The court also rejected the
Commonwealth’s argument, based upon the attenuation doctrine, that Hendrick’s subsequent
statement about just coming home from a gun charge provided a reasonable, articulable
suspicion supporting a sweep. The court found that at the time Hendrick made his “gun charge”
statement “the officers had already moved from a sweep to a search,” and held that the
attenuation doctrine was not applicable.
This appeal followed.
II. ANALYSIS
On appeal of an order granting a defendant’s motion to suppress, the Commonwealth has
the burden to show that the ruling constituted reversible error. See Murphy v. Commonwealth,
264 Va. 568, 573 (2002). Upon review of the ruling, the appellate court is bound by the trial
court’s factual findings “unless they are plainly wrong or without evidence to support them.”
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Peterson, 15 Va. App. at 487. See also Code § 8.01-680. “In addition, we ‘give “due weight to
the inferences drawn from those facts by resident judges and local law enforcement officers.”’”
White v. Commonwealth, 73 Va. App. 535, 552 (2021) (quoting Kyer v. Commonwealth, 45
Va. App. 473, 479 (2005) (en banc)). Ultimately, however, “we ‘review[] de novo the
overarching question’” of whether police conduct violated the Fourth Amendment. Id.(alteration in original) (quoting Moreno v. Commonwealth, 73 Va. App. 267, 274 (2021)).
“Specifically, ‘determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal.’” Freeman v. Commonwealth, 65 Va. App. 407, 415 (2015) (quoting Ornelas v.
United States, 517 U.S. 690, 699 (1996)). “Whether the Fourth Amendment has been violated is
a question to be determined from all the circumstances,” and “[r]eview of the existence of
probable cause or reasonable suspicion involves application of an objective rather than a
subjective standard.” McCain v. Commonwealth, 275 Va. 546, 552 (2008).
A. The Protective Sweep
The Commonwealth argues that as the officers approached Hendrick, they possessed
reasonable, articulable suspicion that he was dangerous and might access his car to gain
immediate control of a weapon; thus, a protective sweep for weapons was justified.
Accordingly, the Commonwealth contends, the trial court erred in granting Hendrick’s motion to
suppress the drugs that were incidentally discovered during the sweep.
“The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.’” White, 73 Va. App. at
552 (alteration in original) (quoting U.S. Const. amend. IV). “[B]y its express terms,” the
amendment “protects not only the individual, but also his or her things, and, most pertinent here,
his or her [car] from unreasonable searches.” Id. (first alteration in original) (quoting Saal v.
Commonwealth, 72 Va. App. 413, 421 (2020)).
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In Terry v. Ohio, 392 U.S. 1 (1968), “the United States Supreme Court permitted ‘a
protective search for weapons in the absence of probable cause to arrest . . . when a [police
officer] possesses an articulable suspicion that an individual is armed and dangerous.’”
McArthur v. Commonwealth, 72 Va. App. 352, 359 (2020) (alterations in original) (quoting
Michigan v. Long, 463 U.S. 1032, 1034 (1983)). Subsequently, “[r]ecognizing the inordinate
risk confronting the officer as he approaches a person seated in an automobile, the Court has
extended such protective searches beyond the person, including areas of the passenger
compartment of an automobile in which a weapon may be placed or hidden.” Id. (quoting Long,
463 U.S. at 1034). See also Maryland v. Buie, 494 U.S. 325, 332 (1990) (noting that “[i]n a
sense, Long authorized a ‘frisk’ of an automobile for weapons”). “The ‘sole justification’ for
both types of limited searches for weapons is ‘the protection of police officers and others
nearby,’” and such searches are only permissible where an officer “‘possesses a reasonable belief
based on “specific and articulable facts [that] . . . reasonably warrant” [an] officer in believing
[a] suspect is dangerous and . . . may gain immediate control of weapons.’” Bagley v.
Commonwealth, 73 Va. App. 1, 13 (2021) (alterations in original) (first quoting Long, 463 U.S.
at 1049 n.14; then quoting Stanley v. Commonwealth, 16 Va. App. 873, 875 (1993)).
When analyzing whether an officer has a reasonable basis to believe a person is
dangerous and might gain immediate control of a weapon in his car, a number of circumstances
are relevant. These include “the time of the stop, the specific conduct of the suspect[ed]
individual, the character of the offense under suspicion, and the unique perspective of a police
officer trained and experienced in the detection of crime.” Id. at 16 (alteration in original)
(quoting McCain, 275 Va. at 554). The determinative question is not “whether each individual
factor, viewed alone, ‘is susceptible [to an] innocent explanation’ but, rather, whether the various
factors, ‘[t]aken together,’ are sufficient to ‘form a particularized and objective basis’ for an
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officer’s suspicion.” Id. (alterations in original) (quoting United States v. Arvizu, 534 U.S. 266,
277 (2002)). This standard only requires “proof of . . . a reasonable belief that the suspect might
have a weapon and gain control of it. ‘The degree of certitude required by the reasonable
suspicion standard “is considerably less than proof of wrongdoing by a preponderance of the
evidence, and obviously less demanding than that for probable cause.”’” Id. (quoting Morris v.
City of Va. Beach, 58 Va. App. 173, 183 (2011)). Ultimately, “[t]he authority to conduct a
[protective sweep] does not follow automatically from the authority to effectuate an investigative
stop. ‘Only where the officer can “point to particular facts from which [the officer] reasonably
inferred that the individual was . . . dangerous”’” and might gain access to weapons is he
justified in searching for weapons. Lowe v. Commonwealth, 33 Va. App. 656, 661 (2000) (third
alteration in original) (citation omitted) (quoting Williams v. Commonwealth, 4 Va. App. 53,
66-67 (1987)).
Here, the trial court found that the officers lacked reasonable, articulable suspicion to
support a protective sweep. In reaching this conclusion, the court made a number of factual
determinations about the circumstances of Hendrick’s encounter with police. Specifically, the
court found that Hendrick was driving in a high-crime area at nearly midnight, he was stopped
for a traffic infraction by officers who did not know his identity, and who were not responding to
a call or otherwise actively investigating criminal activity, as officers approached, he was seen to
engage in what police considered a “furtive movement”—leaning over the steering wheel and
reaching toward the floorboard, he was sitting upright with his hands visible when Danko
reached his window, and he did not exhibit nervousness or make additional “furtive movements”
once Danko approached. These factual findings by the trial court are supported by the record
evidence and are not plainly wrong. Accordingly, they bind the Court and establish parameters
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for our de novo review of the trial court’s legal conclusion that the officers lacked a reasonable,
articulable suspicion to justify a protective sweep.2 See Peterson, 15 Va. App. at 487.
The Commonwealth contends that based on these facts, the officers possessed an
objectively reasonable and articulable suspicion “to conduct a protective sweep of [Hendrick’s]
vehicle which led to officers locating illegal narcotics in the passenger [sic] compartment.”
Specifically, it focuses on the fact that the traffic stop occurred late at night in a high crime area
and that after the officers had identified themselves as police by activating their lights and a
siren, they observed Hendrick make a “furtive movement.” Based upon the officers’ training and
experience, the Commonwealth argues, they were justified in interpreting these facts to
reasonably suspect that Hendrick possessed a weapon, sought to conceal it, and, “if allowed back
into his vehicle, [would] pose[] a threat to their safety.”
We are unconvinced by the Commonwealth’s argument and conclude, based upon a
consideration of all the facts and circumstances surrounding the traffic stop, that the trial court
did not err in finding that the officers lacked reasonable, articulable suspicion for a protective
sweep. Although the stop occurred late at night in a high-crime area, it is well-established that
such circumstances are not themselves determinative of the issue of reasonable, particularized
suspicion. See, e.g., Whitaker v. Commonwealth, 279 Va. 268, 276 (2010) (“[W]hile a suspect’s
presence in a high crime area, standing alone, is not enough to support a reasonable articulable
suspicion, it is a relevant contextual consideration in a Terry analysis.”); McArthur, 72 Va. App.
at 361 (“Even though this traffic stop did occur in a ‘high crime area,’ the Virginia Supreme
Court has held that a ‘person’s Fourth Amendment rights are not lessened simply because he or
she happens to live or travel in a ‘high crime’ area.’” (quoting McCain, 275 Va. at 553)).
Hendrick made a single movement over the steering wheel and toward the floorboard as officers
2
The Commonwealth does not challenge these factual findings by the trial court.
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approached his car, but he had ceased his movement and was sitting upright with his hands in
plain view when officers stepped up to his window. Further, he exhibited no signs of
nervousness, such as shaking hands, heavy breathing, or sweating. See, e.g., Curley v.
Commonwealth, 295 Va. 616, 619 (2018) (holding that protective sweep was justified, in part, by
the defendant’s shaking hand and heavy breathing); Walker v. Commonwealth, 42 Va. App. 782,
791 (2004) (same, where the defendant was breathing heavily and “very nervous”); Glover v.
Commonwealth, 3 Va. App. 152, 157 (1986) (same, where the defendant was “sweating heavily”
and “appeared nervous and preoccupied”). Hendrick was polite to the officers and complied
with their request when they asked him to step out of his car, and he offered them plausible
reasons for his presence in the area and his movement within his car. Additionally, the police
were not investigating any reported crime in the area and did not know Hendrick’s identity when
they witnessed him make a left turn without fully stopping at a stop sign and decided to pull him
over. Taken together, these facts and circumstances do not indicate that when the officers
stopped Hendrick, they possessed anything more than a mere “hunch” that he might be
dangerous and have a weapon in his vehicle that he could use to threaten their safety.3
Accordingly, we conclude that the trial court did not err in finding that the officers lacked
reasonable, articulable suspicion to justify a protective sweep of Hendrick’s vehicle when t hey
first encountered him during a traffic stop.4
3
Even if the officers subjectively suspected Hendrick of involvement with illicit drugs,
the Commonwealth presented no evidence to support an objective basis for such suspicion. See,
e.g., Hilliard v. Commonwealth, 17 Va. App. 23, 26 (1993) (noting that “[s]uspicion of illegal
drug possession and distribution is a circumstance which gives rise to an inference of
dangerousness” supporting a protective sweep). The evidence indicates only that Hendrick
committed a late-night traffic infraction in a neighborhood officers considered “high-crime.”
4
The trial court, in holding that the officers lacked reasonable, articulable suspicion to
justify a sweep, relied upon several decisions of this Court. In particular, it relied upon language
in Hill v. Commonwealth, 68 Va. App. 610 (2018), aff’d, 297 Va. 804 (2019), for the proposition
that “[t]he Court of Appeals has recognized that a single furtive movement in a high crime area
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B. The Attenuation Doctrine
In the alternative, the Commonwealth argues that Hendrick’s statement about a “gun
charge” provided the officers with a reasonable, articulable suspicion justifying a “subsequent or
continued protective sweep” and “attenuated the finding of the [narcotics] from the original
sweep.” Accordingly, the Commonwealth contends, the trial court erred in finding that the
attenuation doctrine did not apply and granting Hendrick’s motion to suppress.
“Under the attenuation doctrine, ‘evidence is admissible when the connection
between . . . unconstitutional police conduct and the evidence is remote or has been interrupted
by some intervening circumstance.’” Carlson v. Commonwealth, 69 Va. App. 749, 762 (2019)
(quoting Utah v. Strieff, 579 U.S. 232, 238 (2016)). In applying the doctrine, “[c]ourts look to
whether there is a temporal proximity between the unconstitutional conduct and the discovery of
is insufficient to justify a Terry stop.” Our resolution of Hill was based in part upon an analysis
of two additional cases which the trial court also relied upon: Smith v. Commonwealth, 12
Va. App. 1100 (1991), and Riley v. Commonwealth, 13 Va. App. 494 (1992). Both cases
involved defendants who were on foot in high-crime areas when they were seen making hand
movements toward the front of their pants. Smith, 12 Va. App. at 1102; Riley, 13 Va. App. at
496-97. In one part of our opinion in Hill, we stated that “[u]nlike the defendants in Smith and
Riley, [the] appellant did not merely exhibit a single furtive movement in a high crime area,” a
statement which the trial court quoted to support its reasoning that this case is “akin to Riley and
Smith.” Hill, 68 Va. App. at 622. But elsewhere in Hill, hewing more closely to the facts and
reasoning of Smith and Riley, we were more careful in stating that “[w]e have held that a
defendant’s furtive hand gesture in a public place known for [criminal] activity is a circumstance
which, in and of itself, is insufficient to justify a Terry stop.” Id. at 621 (emphasis added).
We take no position here on whether a single furtive hand gesture made outdoors in plain
view of an officer, as in Smith and Riley, may be distinguishable from a “furtive movement”
made inside an automobile compartment, where officers may be less able to see what an
individual is doing or may have in his hands; thus we take no position on whether, as implied by
the trial court, a single furtive movement of any kind, even in a high-crime area, is an insufficient
basis for reasonable, articulable suspicion. However, we note that a recent decision of this
Court, McArthur v. Commonwealth, 72 Va. App. 352 (2020), suggests that this may be a
distinction with a difference. See id. at 362-63 (holding that protective sweep of a vehicle
stopped in a high crime area for a defective fog light was unjustified, when the defendant was
polite and cooperative during the stop, immediately exited the vehicle upon request, and “made
no furtive movements around the cabin of the vehicle. . . . Without any further articulable facts
indicating that [the officer] reasonably suspected that [the defendant] was armed and dangerous,
it was unreasonable for the officer to conduct a protective sweep.” (emphasis added)).
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evidence, the presence of intervening circumstances, and the purpose and flagrancy of the
misconduct.” Id. A “‘finding with respect to attenuation . . . can only be made after
consideration of all the circumstances of the case.’ This necessarily requires a ‘careful sifting of
the unique facts and circumstances of each case.’” Kyer, 45 Va. App. at 483 (alteration in
original) (citation omitted) (first quoting United States v. Wellins, 654 F.2d 550, 554 (9th Cir.
1981); then quoting Schneckloth v. Bustamonte, 412 U.S. 218, 223 (1973)). Ultimately, the
question is whether the evidence obtained was “come at by exploitation of [the initial] illegality
or instead by a means sufficiently distinguishable to be purged of the primary taint.” Carlson, 69
Va. App. at 759 (alteration in original) (quoting Commonwealth v. Ealy, 12 Va. App. 744, 755
(1991)).
The Commonwealth argues that Hendrick’s statement that he had just returned home
from a firearms charge “should have been considered an intervening circumstance that attenuated
the finding of the contraband from any illegal conduct that occurred prior to [Hendrick’s]
statement.” It contends that in the context of a traffic stop, an officer’s knowledge about the
recent criminal history of a driver or passenger, especially when that history involves weapons, is
highly relevant and should be given due weight in determining whether there was reasonable,
articulable suspicion to conduct a protective sweep. Accordingly, the Commonwealth argues,
the trial court “improperly analyzed [Hendrick’s] statement” and “erred when concluding that
[his] statement was not an intervening event that caused the recovery of the contraband to be
attenuated from the original sweep of the vehicle.”
For purposes of this appeal, we assume, without deciding, that Hendrick’s “gun charge”
statement was sufficient to provide officers with reasonable, articulable suspicion for a protective
sweep. But even making that assumption, we conclude that the trial court did not err in granting
Hendrick’s motion to suppress because the officers exceeded the permissible scope of such a
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sweep. See Ali v. Commonwealth, 75 Va. App. 16, 37 n.9 (2022) (noting that “[t]he mechanism
of assuming without deciding a particular point in issue sometimes facilitates the appellate
court’s achievement of th[e] goal” of “decid[ing] cases on the best and narrowest ground”);
Butcher v. Commonwealth, 298 Va. 392, 396 (2020) (“The ‘best’ answer to a legal question is
the one with which the least number of jurists would disagree or . . . the greatest number of
jurists would agree. The ‘narrowest’ answer to a legal question is the one affecting the least
number of cases.”).
As noted above, Terry and its progeny “permit[] ‘a protective search for weapons in the
absence of probable cause to arrest . . . when a [police officer] possesses an articulable suspicion
that an individual is armed and dangerous.’” McArthur, 72 Va. App. at 359 (second and third
alterations in original) (emphasis added) (quoting Long, 463 U.S. at 1034). “The ‘sole
justification’” for such a “limited search[] for weapons is ‘the protection of police officers and
others nearby,’” where an officer possesses a reasonable, articulable suspicion that “‘[a] suspect
is dangerous and . . . may gain immediate control of weapons.’” Bagley, 73 Va. App. at 13
(second and third alterations in original) (emphasis added) (first quoting Long, 463 U.S. at 1049
n.14; then quoting Stanley, 16 Va. App. at 875). See also Buie, 494 U.S. at 332 (noting that “[i]n
a sense, Long authorized a ‘frisk’ of an automobile for weapons” (emphasis added)).
Accordingly, officers conducting a protective sweep must limit the sweep to a search for
weapons that a suspect might gain immediate control over, thus presenting a threat to officers
and others. Here, the record demonstrates that officers did not confine themselves to such a
limited, permissible search for weapons; instead, they expanded their conduct to search for
drugs.
Burgess testified that during the pat down of Hendrick, he checked Hendrick’s groin and
“didn’t feel any weapon.” He also testified that “[if] there was a weapon in [Hendrick’s] pants, yes,
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I’m pretty confident I would have felt it.” Thus, by Burgess’ own admission, prior to learning about
Hendrick’s “gun charge,” he had ruled out the possibility that Hendrick had a weapon concealed
down the front of his pants. However, after Burgess informed Gomes of Hendrick’s statement and
he joined Gomes in examining the interior of the car, Burgess discussed Hendrick’s movement with
Gomes. Burgess stated that Hendrick had been “divin’ in the front, so I don’t know if he shoved
some shit down his pants” and that Hendrick “definitely was in the front. He had something down
his pants, I think.” Burgess also told Gomes, “[i]f I was a betting man, he put it down his nuts.”
Given that Burgess had already excluded that Hendrick had a weapon concealed down the front of
his pants, the reasonable inference to be drawn from these statements, in context, is that the “it” or
“shit” Burgess was concerned to search for and find was drugs he suspected Hendrick possessed.
See Grimstead, 12 Va. App. at 1067 (providing that on appeal, “all reasonable inferences fairly
deducible from th[e] evidence” are granted to a defendant who prevailed on a motion to
suppress). This inference is further supported by Burgess’ statement when, shortly after making
the comments described above, he found narcotics in the driver’s compartment: “[o]h, there you
go. There’s all the drugs right there.” Additionally, by Burgess’ own testimony, once he located
the drugs, he ceased examining the driver’s compartment. Thus, the record supports the
conclusion that Burgess was searching specifically for narcotics. Accordingly, even assuming that
the officers possessed reasonable, articulable suspicion for a protective sweep, they exceeded the
permissible scope of a sweep, and thus the trial court did not err in suppressing the recovered
drugs. See generally Knight v. Commonwealth, 71 Va. App. 771, 783-87 (2020) (affirming trial
court’s finding that an “inventory search” of the defendant’s car was in fact an improper
investigatory search for contraband, based in part upon officers’ conversations and actions
depicted in their body camera footage).
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III. CONCLUSION
For the foregoing reasons, we hold that the trial court did not err in granting Hendrick’s
motion to suppress the evidence recovered from his car during a traffic stop.
Affirmed.
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