COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman, 

 Willis, Elder, Bray, Annunziata, Overton and Bumgardner 

Argued at Richmond, Virginia 

GORDON WAYNE WELSHMAN, S/K/A 

 GORDON WAYNE WELSHMAN, JR. 

 OPINION BY 

v. Record No. 0818-96-3 JUDGE JOSEPH E. BAKER 

 JULY 21, 1998 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Richard S. Miller, Judge 

 Clinton R. Shaw, Jr. (Office of the Public 

Defender, on brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Gordon Wayne Welshman (appellant) was convicted in a bench 

trial in the Circuit Court for the City of Lynchburg (trial 

court) for possession of cocaine with intent to distribute. On 

appeal, he contended the trial court erroneously denied his 

motion to suppress the cocaine and held the evidence sufficient 

to prove he intended to distribute the cocaine. A divided panel 

of this Court reversed and dismissed the conviction, holding the 

cocaine upon which his conviction was based was discovered as the 

result of an unreasonable seizure of his person, in violation of 

the Fourth Amendment. See Welshman v. Commonwealth, 25 Va. App. 

599, 491 S.E.2d 294 (1997). Upon rehearing en banc, we hold the 

trial court properly denied appellant's motion to suppress and 
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the evidence is sufficient to prove appellant intended to 

distribute the cocaine. Accordingly, we affirm his conviction. 

 During June 1995, Investigator Thomas of the Lynchburg 

Police Department conducted ongoing surveillance in the 2100 

block of Main Street, which was known as an open-air drug market. 

 Between January 1994 and August 11, 1995, the police "had [703] 

calls in the [2100] block of Main Street," 136 of which were for 

drug offenses. Sixty-eight of the drug offense calls directly 

involved the residence at 2110 Main Street, which was a reputed 

crack house. Police also received seventeen "shots fired" calls 

for that block during the same period. 

 On June 29, 1995, Investigator Thomas used binoculars to 

observe two individuals engaging in hand-to-hand transactions 

with drivers and pedestrians in the 2100 block of Main Street. 

He saw those two individuals carry white chunks of what appeared 

to be crack cocaine in their hands and exchange the chunks for 

cash. He believed the two were selling cocaine. Appellant, 

along with about seven other people, had been standing in front 

of the residence at 2110 Main Street for at least fifteen 

minutes, but appellant was not visibly involved in any of the 

apparent drug transactions. 

 Investigator Thomas radioed his observations to a team of 

four officers, including Officer Duff, who approached the scene 

to apprehend the two individuals suspected of selling cocaine. 

It was about 8:25 p.m. and "was just barely light outside." When 
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Investigator Thomas radioed the team, the two target individuals 

were "in the middle of the street . . . making a transaction" 

with a "stopped . . . vehicle." However, "when the officers 

began approaching in their vehicle[,] both individuals ran back 

into [the] little group where [appellant] was." This group was 

on the sidewalk area in front of 2110 Main Street, between the 

front porch and a van with its doors open parked in front of the 

residence. Four or five people, "male and female and some 

children," were on the front porch of the residence, and about 

three people were inside the van. In addition, "[t]here were 

other pedestrians within the block." Investigator Thomas 

testified that the officers "always want to outnumber the 

individuals we're getting out with, but in some cases we can't do 

it." The officers "elected to go in with what they had," but 

upon arriving at the scene, Officer Duff called for additional 

officers. 

 "Due to the nature and reputation of the area and [Officer 

Duff's] experience with the area, and, also some of the people 

that [he] had observed there," he decided to direct everyone on 

the sidewalk at the scene to lie "in a prone position 

momentarily" for the safety of the officers and the civilians. 

Duff also wanted to apprehend the target subjects before they had 

a chance to dispose of any cocaine they may have possessed. The 

officers intended to secure the two target individuals and the 

scene "either by having people leave or making sure that . . . 
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the people [who] decided to stay" had no weapons. Duff 

previously had seen a pellet gun in the mailbox of the residence, 

which was located only three to four feet from where appellant 

was standing, and in the possession of one of the occupants of 

the residence. He also was aware of several prior "shots fired" 

calls involving that residence and knew police previously had 

seen an individual firing a weapon in front of that residence. 

The 2100 block "was known as a high crime, very volatile area." 

 As the officers were exiting the car, Officer Duff told 

everyone on the sidewalk, including appellant, to get on the 

ground and extend their arms out from their bodies. He said he 

would have allowed anyone other than the target individuals to 

leave the scene, but he did not inform them of this option. 

Everyone complied with Officer Duff's directive. While other 

officers secured the target subjects, Officer Duff noticed 

appellant had not extended his arms as directed and instead had 

kept them under his torso. Fearing appellant was reaching for a 

weapon, Duff "immediately went to [appellant]" and again told him 

to extend his arms. As Duff began to roll appellant over, 

appellant complied by extending his arms. Duff saw nothing in 

the area where appellant had been lying but was concerned about 

the officers' safety and frisked appellant for weapons. When he 

patted the exterior of appellant's left front pants pocket, he 

detected an object that "felt like several smaller objects that 

were hard and it felt like . . . they were wrapped in some type 
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of baggy-type wrap." Without manipulating the contents of 

appellant's pocket, Duff immediately concluded the objects were 

crack cocaine. He then pulled from appellant's pocket a piece of 

a brown paper bag containing five or six chunks of crack cocaine 

weighing 1.44 grams. Other than appellant and the target 

individuals, police did not frisk anyone else at the scene. 

 In a search of appellant incident to arrest, the officers 

found $150 in cash, comprised of five $20 bills and one $50 bill. 

 They found no devices for ingesting cocaine in appellant's 

possession. After Mirandizing appellant, Officer Duff asked him 

if he smoked crack cocaine. Appellant said, "Do I look like I 

smoke cocaine?" When Duff replied, "No," appellant said, "All 

right then." Appellant said he was not holding the cocaine for 

anyone else and denied having an intent to sell it. 

 At trial, Officer Duff qualified as an expert and testified 

appellant's possession of 1.44 grams of crack cocaine was 

inconsistent with possession for personal use. He testified that 

crack cocaine was commonly sold in the Lynchburg area in $20 and 

$40 rocks and that one gram of cocaine would cost $150 to $175. 

Investigator Thomas testified that, in his experience, people 

selling cocaine commonly carry several rocks in pieces of brown 

paper or small pieces of cellophane, plastic wrappers or plastic 

bags. Purchasers, by contrast, he testified, "usually just get 

the rock and leave." 

 Appellant moved to suppress, contending the seizure of his 
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person and the subsequent pat-down search and removal of the 

cocaine from his pocket violated the United States and Virginia 

Constitutions. The trial court denied the motion to suppress, 

finding "the police officers in the case acted properly and had 

reasonable probability or reasonable basis to believe that the 

area involved was very dangerous; that it was a high crime area." 

 As a result, he held the officers' "actions were reasonable." 

 At trial, appellant moved to strike the Commonwealth's 

evidence, but the trial court denied the motion and convicted 

appellant of possessing cocaine with intent to distribute. The 

trial court "[drew] the inference based on [appellant's] answers 

[to] what the police officer asked him" that "[appellant] was not 

a [cocaine] user." 

Motion to Suppress

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

"the burden is upon [appellant] to show that this ruling, when 

the evidence is considered most favorably to the Commonwealth, 

constituted reversible error." Fore v. Commonwealth, 220 Va. 

1007, 1010, 265 S.E.2d 729, 731 (1980). Determining whether 

police may make a warrantless search or seizure involves issues 

of both law and fact and is reviewed de novo on appeal. See

Ornelas v. United States, 517 U.S. 690, 696-97 (1996) 

(articulating standard for reviewing determinations of reasonable 

suspicion and probable cause). However, "[i]n performing such 

analysis, we are bound by the trial court's findings of 
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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, 517 U.S. at 

699). 

Detention

 The Commonwealth concedes appellant was seized within the 

meaning of the Fourth Amendment when Officer Duff ordered him to 

lie face down on the ground and extend his arms. The 

Commonwealth also concedes the officers had no reason to believe 

appellant had been engaged in criminal activity. The question on 

appeal, therefore, is whether the officers' detention of 

appellant nevertheless was constitutionally justified. We hold 

that it was. 

 "The [F]ourth [A]mendment does not proscribe all seizures, 

only those that are 'unreasonable.' Whether a seizure 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." Bethea v. 

Commonwealth, 14 Va. App. 474, 476, 419 S.E.2d 249, 250 (1992) 

(en banc), aff'd on other grounds, 245 Va. 416, 429 S.E.2d 211 

(1993); see U.S. Const. amend. IV; Va. Const. art. I, § 10. The 

validity of a seizure "'turns on an objective assessment of the 
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officer's actions in light of the facts and circumstances 

confronting him at the time,' and not on the officer's actual 

state of mind at the time the challenged action was taken." 

Maryland v. Macon, 472 U.S. 463, 470-71 (1985) (quoting Scott v. 

United States, 436 U.S. 128, 136 (1978)). 

 Ordinarily, in the absence of consent, even a brief 

detention must be based on at least a reasonable, articulable 

suspicion the person seized is engaged in criminal activity. 

See, e.g., McGee, 25 Va. App. at 198-99, 487 S.E.2d at 261-62. 

However, as the United States Supreme Court has held, the absence 

of probable cause or reasonable suspicion of criminal activity 

does not necessarily render a detention unlawful. See Maryland 

v. Wilson, 117 S. Ct. 882, 886 (1997); Michigan v. Summers, 452 

U.S. 692, 705 (1981); see also United States v. Martinez-Fuerte, 

428 U.S. 543, 556-62 (1976) (upholding border patrol stops of 

vehicles at fixed checkpoint in absence of reasonable suspicion 

that vehicle contained illegal aliens). 

 In Michigan v. Summers, 452 U.S. 692, for example, the Court 

held that "a warrant to search for contraband founded on probable 

cause implicitly carries with it the limited authority to detain 

the occupants of the premises while a proper search is 

conducted." Id. at 705 (footnote omitted). Among various 

"legitimate law enforcement interest[s]" in detaining the 

occupants, it emphasized the 

 importance . . . [of] minimizing the risk of 

harm to the officers. . . . [T]he execution 

of a warrant to search for narcotics is the 
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kind of transaction that may give rise to 

sudden violence or frantic efforts to conceal 

or destroy evidence. The risk of harm to 

both the police and the occupants is 

minimized if the officers routinely exercise 

unquestioned command of the situation. 

Id. at 702-03 (footnote omitted). Although the Court stressed 

the importance of the existence of the search warrant to justify 

the detention in that case, see id. at 701, it also noted its 

holding did not "preclude the possibility that comparable police 

conduct may be justified by exigent circumstances in the absence 

of a warrant." Id. at 702 n.17. 

 In the more recent case of Wilson, 117 S. Ct. at 886, the 

Court extended Pennsylvania v. Mimms, 434 U.S. 106 (1977), to 

hold that a police officer making a routine traffic stop may 

order a passenger out of the car for safety reasons, even if the 

officer has no reason to suspect the passenger of criminal 

behavior. See also Bethea, 14 Va. App. 474, 419 S.E.2d 249. The 

Court noted the "reasonableness [of an officer's actions] 

'depends "on a balance between the public interest and the 

individual's right to personal security free from arbitrary 

interference by law officers."'" Wilson, 117 S. Ct. at 885 

(quoting Mimms, 434 U.S. at 109 (quoting United States v. 

Brignoni-Ponce, 422 U.S. 873, 878 (1975))). "On the public 

interest side of the balance," the Court identified a "weighty 

interest in officer safety," advanced by depriving the occupants 

of access to any weapons which might be concealed in the 

passenger compartment. See id. at 885-86. It concluded that 
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 danger to an officer from a traffic stop is 

likely to be greater when there are 

passengers in addition to the driver in the 

stopped car. While there is not the same 

basis for ordering the passengers out of the 

car as there is for ordering the driver out, 

the additional intrusion on the passenger is 

minimal. 

Id. at 886. 

 Under the reasoning of Summers and Wilson, we hold the 

officers here were justified in ordering appellant to lie on the 

ground briefly, both for his safety and the safety of the 

officers and other bystanders. The officers lacked reasonable 

suspicion or probable cause to believe appellant was engaged in 

criminal activity and did not have an arrest warrant for the two 

target individuals. However, they had probable cause to believe 

the two target individuals were then engaged in selling cocaine 

in plain view directly in front of a reputed crack house, about 

which officers had received numerous "shots fired" complaints. 

When the four officers first began to approach the scene, the two 

target individuals were standing by a car in the middle of the 

street. By the time the officers arrived, the two men had 

retreated to the sidewalk into the group of about eight people, 

of which appellant had been a part for at least fifteen minutes. 

 Once the target subjects had retreated into the group, that 

group outnumbered the police officers by a ratio of two to one. 

Other people, including children, were in close proximity. 

 Although the officers had not seen any weapons on the people 
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at the scene, given the number of people in close proximity, the 

reputation of the house and block for violence, 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 which may be considered in determining whether an 

investigatory stop is appropriate), and the nature of the crime 

for which they sought to apprehend the target subjects, see, 

e.g., Logan v. Commonwealth, 19 Va. App. 437, 445, 452 S.E.2d 

364, 369 (1994) (en banc) (noting that relationship between 

distribution of controlled substances and possession and use of 

dangerous weapons "is now well recognized"), the evidence 

supports the trial court's conclusion that the officers 

reasonably feared for their safety and the safety of the 

bystanders and properly ordered those people on the sidewalk with 

the target subjects to lie on the ground. 

 We conclude the trial court did not err in denying the 

motion to suppress. Requiring the officers to notify the members 

of the group on the sidewalk that they were free to leave before 

or while the officers apprehended the target subjects could have 

posed an increased risk to the safety of the officers, the 

members of the group on the sidewalk, and the other bystanders if 

the target subjects had attempted to dispose of evidence, resist 

arrest, or flee the scene. Therefore, the officers' order to the 

bystanders on the sidewalk to lie on the ground "momentarily" 

while the target subjects were taken into custody was not 
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unreasonable. See Baker v. Monroe Township, 50 F.3d 1186, 

1191-92 (3d Cir. 1995) (in federal civil rights action, holding 

that police executing no-knock search warrant for drugs could 

detain mother and her three children, who were climbing steps to 

target apartment, to protect both the officers and those 

detained); Willowby v. City of Philadelphia, 946 F. Supp. 369, 

373-74 (E.D. Pa. 1996) (in federal civil rights action, holding 

that police executing search warrant for drugs did not violate 

constitutional rights of those present on porch of adjacent row 

house by ordering them to "get down . . . in the interest of the 

bystanders' and officers' safety") (footnote omitted). 

 Moreover, the officers briefly detained only those people in 

immediate proximity to the target subjects and not those on the 

nearby porch or in the van. In addition, Officer Duff testified 

he intended to allow people to leave the scene immediately after 

the target subjects had been secured and he would have frisked 

only those who chose to stay at the scene. 

 Viewing the facts in the light most favorable to the 

Commonwealth, we cannot say the brief detention of appellant 

violated his rights under the United States or Virginia 

Constitutions. 

Frisk for Weapons

 Appellant also contends Officer Duff violated his Fourth 

Amendment rights when Duff frisked him for weapons. Again, we 

disagree. 
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 Under settled principles, once an officer has lawfully 

detained an individual, "he is 'authorized to take such steps as 

[are] reasonably necessary to protect [his and others'] personal 

safety and to maintain the status quo during the course of the 

stop.'" Servis v. Commonwealth, 6 Va. App. 507, 519, 371 S.E.2d 

156, 162 (1988) (quoting United States v. Hensley, 469 U.S. 221, 

235 (1985)). An officer may preserve the status quo by ordering 

the person detained to place his hands where the officer can see 

them. See Woodson v. Commonwealth, 14 Va. App. 787, 793-94, 421 

S.E.2d 1, 5 (1992), aff'd, 245 Va. 401, 429 S.E.2d 27 (1993); 

Bethea, 14 Va. App. at 478, 419 S.E.2d at 252. 

 Additional information may provide the basis for a frisk of 

the person for weapons. An officer "may conduct a limited 

pat-down search of the suspect's outer clothing to search for 

weapons if the officer reasonably believes, based on specific and 

articulable facts, that the suspect might be armed and 

dangerous." Phillips v. Commonwealth, 17 Va. App. 27, 30, 434 

S.E.2d 918, 920 (1993). The refusal of a person detained to show 

his hands may provide just such a basis. See James v. 

Commonwealth, 22 Va. App. 740, 745-46, 473 S.E.2d 90, 92 (1996) 

(permitting frisk of passenger who appeared jittery and did not 

respond to officer's order to keep hands in view). Additional 

factors appropriate for consideration may include the reputation 

of the neighborhood as a high-crime area. See Brown, 15 Va. App. 

at 234 n.1, 421 S.E.2d at 912 n.1. 
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 Officer Duff initially detained appellant for safety reasons 

and did not have reasonable suspicion of criminal activity by 

appellant. However, Officer Duff was lawfully there 

investigating criminal activity that Investigator Thomas had 

observed. Once appellant had been detained, Duff was entitled to 

take reasonable steps to protect the safety of the officers, the 

target individuals, and everyone else at or near the scene. In 

determining what measures were appropriate, Duff was entitled to 

consider the reputation of the immediate area for violence and 

drug-related crime. See id. Duff attempted to maintain safety 

in a minimally intrusive manner by ordering appellant and the 

others on the sidewalk to lie prone and extend their arms from 

their bodies so their hands would be in plain view. When 

appellant refused Officer Duff's order to extend his hands from 

his body, placing them under his torso instead, Duff had specific 

and articulable facts giving rise to the reasonable belief 

appellant "might be armed and dangerous." See id.; see also

United States v. Moorefield, 111 F.3d 10, 13-14 (3d Cir. 1997) 

(upholding pat-down of passenger following his failure to obey 

officer's order to place hands in view); Lansdown v. 

Commonwealth, 226 Va. 204, 212-13, 308 S.E.2d 106, 111-12 (1983), 

cert. denied, 465 U.S. 1104 (1984) (permitting frisk of van's 

passenger for weapons where driver was stopped for multiple 

traffic infractions including reckless driving and attempting to 

elude a police officer and where passenger "individually did 
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nothing to indicate he possessed a concealed weapon"). 

 Appellant's subsequent compliance with Duff's order and 

Duff's failure to find a weapon on the ground beneath appellant 

did not remove the possibility appellant had a weapon on his 

person and might again try to access it. 

 Under these facts, we conclude the frisk for weapons was not 

an unreasonable search. 

"Plain Feel" Doctrine

 When Officer Duff felt the rocks of crack cocaine in 

appellant's pocket, the plain feel doctrine of Minnesota v. 

Dickerson, 508 U.S. 366 (1993), permitted their seizure. Under 

that doctrine, 

 [i]f a police officer lawfully pats down a 

suspect's outer clothing and feels an object 

whose contour or mass makes its identity 

immediately apparent, there has been no 

invasion of the suspect's privacy beyond that 

already authorized by the officer's search 

for weapons; if the object is contraband, its 

warrantless seizure would be justified by the 

same practical considerations that inhere in 

the plain view context. 

Id. at 375-76. 

 Here, Officer Duff testified he identified the item when he 

first felt it and did not have to manipulate it in order to 

complete the identification. Therefore, viewed in the light most 

favorable to the Commonwealth, the evidence supported the trial 

court's denial of appellant's motion to suppress on this issue. 

See also Ruffin v. Commonwealth, 13 Va. App. 206, 208-09, 409 

S.E.2d 177, 178-79 (1991) (applying plain view doctrine to uphold 
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seizure where officer conducting pat-down for weapons found item 

he thought to be controlled substance). 

Intent to Distribute

 Appellant also challenges the sufficiency of the evidence to 

prove intent to distribute. In evaluating such a challenge, we 

view the record in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). The credibility of a witness, the weight 

accorded the testimony, and the inferences to be drawn from 

proven facts are matters to be determined by the fact finder. 

See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 

476 (1989). 

 Circumstantial evidence may establish the elements of a 

crime, provided it excludes every reasonable hypothesis of 

innocence. See, e.g., Tucker v. Commonwealth, 18 Va. App. 141, 

143, 442 S.E.2d 419, 420 (1994). However, "the Commonwealth need 

only exclude reasonable hypotheses of innocence that flow from 

the evidence, not those that spring from the imagination of the 

defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 

S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is 

reasonable is a question of fact, see Cantrell v. Commonwealth, 7 

Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and a finding by 

the trial court is binding on appeal unless plainly wrong. See

Martin, 4 Va. App. at 443, 358 S.E.2d at 418. 
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 "Because direct proof of intent [to distribute drugs] is 

often impossible, it must be shown by circumstantial evidence." 

Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 

(1988). Such evidence may include the quantity of drugs and cash 

possessed and whether appellant used drugs. See Poindexter v. 

Commonwealth, 16 Va. App. 730, 734-35, 432 S.E.2d 527, 530 

(1993). Possession of a large sum of money, especially in small 

denominations, and the absence of any paraphernalia suggestive of 

personal use, also are regularly recognized as factors indicating 

an intent to distribute. See Colbert v. Commonwealth, 219 Va. 1, 

4, 244 S.E.2d 748, 748-49 (1978). 

 Here, appellant possessed 1.44 grams of crack cocaine rocks 

and $150 in cash, comprised of five $20 bills and one $50 bill. 

Officer Duff, who was accepted by the court as an expert, 

testified the quantity of cocaine found was inconsistent with 

personal use and consistent with distribution. He testified 

appellant's possession of the $20 bills also was consistent with 

distribution of crack cocaine, which usually was sold in $20 and 

$40 increments. Finally, police found no evidence of personal 

use of cocaine, and appellant denied holding it for someone else. 

 These facts, combined with appellant's indignant response to 

police when they asked if he smoked crack cocaine, permitted the 

inference that he possessed the cocaine with the requisite intent 

to distribute. The trial court, as the trier of fact, drew just 

such an inference, and we cannot say it erred in doing so. 
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Officer Duff admitted an addict could consume one gram of cocaine 

in a day, and Investigator Thomas admitted appellant could have 

purchased the drugs as they were packaged. However, no evidence 

in the record showed appellant personally used cocaine, and 

appellant's statement to Officer Duff negated such an inference. 

 Therefore, the trial court was entitled to conclude that the 

only reasonable hypothesis flowing from the evidence was that 

appellant intended to distribute the cocaine. 

 For these reasons, we hold the trial court did not err in 

denying appellant's motion to suppress and in finding the 
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evidence sufficient to prove he intended to distribute the 

cocaine. Therefore, we affirm appellant's conviction. 

 Affirmed.
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Annunziata, J., with whom Benton and Elder, JJ., join, 

 dissenting. 

 The majority holds that police officers may seize a person 

whom they have no reasonable, articulable basis to suspect of 

criminal activity. Because I believe this holding is not 

supported by Fourth Amendment law, I respectfully dissent. 

 Investigator Thomas observed two men conduct drug 

transactions, then join a group of eight men, including 

appellant, standing on a sidewalk in front of a reputed crack 

house. Thomas did not see appellant do anything "except stand 

there." At Thomas' direction, Officer Duff moved into the area 

to apprehend the men involved in the drug transactions. Duff 

wanted to "secure the two target suspects and then make the scene 

secure, either by having people leave or making sure that there 

were no weapons with the people that decided to stay." As he 

approached the scene, Duff ordered the individuals on the 

sidewalk, including appellant, to lie on the ground in a prone 

position and extend their arms. After appellant assumed a prone 

position, but kept his hands under his torso, Duff conducted a 

pat-down search and discovered the cocaine used to support 

appellant's conviction. 

 "[P]eople are not shorn of all Fourth Amendment protection 

when they step from their homes onto the public sidewalks." 

Delaware v. Prouse, 440 U.S. 648, 663 (1979). In holding that no 

reasonable suspicion or probable cause was required to seize 

appellant, the majority applies the principle that, "[w]hether a 
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seizure 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." Bethea v. Commonwealth, 14 Va. App. 474, 

476, 419 S.E.2d 249, 250 (1992) (en banc) (citing United States 

v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)), aff'd on other 

grounds, 245 Va. 416, 429 S.E.2d 211 (1993). 

 "For all but . . . narrowly defined intrusions, the 

requisite 'balancing' has been performed in centuries of 

precedent and is embodied in the principle that seizures are 

'reasonable' only if supported by probable cause." Dunaway v. 

New York, 442 U.S. 200, 214 (1979). The reasonableness of 

seizures less intrusive than a traditional arrest, however, 

 involves a weighing of the gravity of the 

public concerns served by the seizure, the 

degree to which the seizure advances the 

public interest, and the severity of the 

interference with individual liberty. A 

central concern in balancing these competing 

considerations in a variety of settings has 

been to assure that an individual's 

reasonable expectation of privacy is not 

subject to arbitrary invasions solely at the 

unfettered discretion of officers in the 

field. To this end, the Fourth Amendment 

requires that a seizure must be based on 

specific, objective facts indicating that 

society's legitimate interests require the 

seizure of the particular individual, or that 

the seizure must be carried out pursuant to a 

plan embodying explicit, neutral limitations 

on the conduct of individual officers. 

Brown v. Texas, 443 U.S. 47, 50-51 (1979) (citations omitted); 
- 22 - 

see also Prouse, 440 U.S. at 654 (explaining that the balancing 

test requires either individualized suspicion or other safeguards 

to limit discretion); Lowe v. Commonwealth, 230 Va. 346, 350, 337 

S.E.2d 273, 276 (1985) (citing Brown, 443 U.S. at 50-51) 

(explaining Brown standard). 

 Applying this standard, the Supreme Court of the United 

States and Virginia courts have repeatedly held that a 

constitutionally valid seizure less intrusive than an arrest 

requires either (1) reasonable, articulable suspicion that a 

crime is being or has been committed, see, e.g., United States v. 

Sokolow, 490 U.S. 1, 7 (1989) (explaining that an investigatory 

stop under Terry v. Ohio, 392 U.S. 1 (1968), "requires 'some 

minimum level of objective justification'" (quoting INS v. 

Delgado, 466 U.S. 210, 217 (1984))); Brown, 433 U.S. at 51 

(holding that stop of pedestrian requires reasonable, articulable 

suspicion of criminal activity); Prouse, 440 U.S. at 663 (holding 

that stop of automobile requires reasonable, articulable 

suspicion of criminal activity); Leeth v. Commonwealth, 223 Va. 

335, 340, 288 S.E.2d 475, 478 (1982) (citing Brown, 443 U.S. at 

51) (holding that stop of automobile requires reasonable, 

articulable suspicion of criminal activity); Simmons v. 

Commonwealth, 217 Va. 552, 554, 231 S.E.2d 218, 220 (1977) 

(citing Terry, 392 U.S. at 27) (holding that stop of pedestrian 

must be supported by reasonable, articulable facts of criminal 

activity); or (2) an explicit, neutral plan limiting the 
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discretion of the officers in the field. See, e.g., Michigan 

Dep't of State Police v. Sitz, 496 U.S. 444, 453 (1990) 

(approving stop at traffic checkpoint selected pursuant to 

guidelines and stopping every vehicle); United States v. 

Martinez-Fuerte, 428 U.S. 543, 559 (1976) (approving permanent 

immigration checkpoint stops involving limited discretionary 

enforcement activity); Simmons v. Commonwealth, 238 Va. 200, 204, 

380 S.E.2d 656, 658-59 (1989) (explaining that roadblock stops 

"must be undertaken pursuant to an explicit plan or practice 

which uses neutral criteria and limits the discretion of the 

officers conducting the roadblock"); Lowe, 230 Va. at 352, 337 

S.E.2d at 277 (approving roadblock stop employing neutral 

criteria and limiting officers' discretion). 

 Prior to today, the Supreme Court of the United States and 

Virginia courts have approved seizures without any objective, 

particularized suspicion of wrongdoing in only two contexts. 

First, in Michigan v. Summers, 452 U.S. 692, 705 (1981), the 

Court held that police could, without objective suspicion, detain 

the occupant of a house during a search conducted pursuant to a 

valid warrant. See also Allen v. Commonwealth, 3 Va. App. 657, 

661-62, 353 S.E.2d 162, 165 (1987) (applying Summers to 

substantially identical facts). The Court explained that the 

state's interest in officer safety outweighed the "incremental 

intrusion on personal liberty [caused by the defendant's 

detention] when the search of a home has been authorized by a 
- 24 - 

valid warrant." Summers, 452 U.S. at 703. 

 Second, courts have held that police may, without objective 

suspicion, order occupants of a lawfully stopped car to perform 

certain actions. In Pennsylvania v. Mimms, 434 U.S. 106, 110-11 

(1977) (per curiam), the Court held that police may order the 

driver of a lawfully stopped car out of the vehicle. The Court 

reasoned that the important value of officer safety outweighed 

the "mere inconvenience" to the driver, an "additional intrusion 

[which] can only be described as de minimis." Id. at 111. The 

Court explained as follows: "The police have already lawfully 

decided that the driver shall be briefly detained; the only 

question is whether he shall spend that period sitting in the 

driver's seat of his car or standing alongside it." Id. In a 

series of decisions, this Court has applied Mimms to similar 

orders by police, including orders for passengers to step out of 

stopped vehicles. See Stanley v. Commonwealth, 16 Va. App. 873, 

875, 433 S.E.2d 512, 513 (1993) (citing, inter alia, Mimms, 434 

U.S. at 111); Thompson v. Commonwealth, 16 Va. App. 478, 481, 431 

S.E.2d 72, 74 (1993) (citing Hatcher v. Commonwealth, 14 Va. App. 

487, 491-92, 419 S.E.2d 256, 258-59 (1992)); Hatcher, 14 Va. App. 

at 492, 419 S.E.2d at 259; Bethea, 14 Va. App. at 478, 419 S.E.2d 

at 251-52. 

 Finally, in Maryland v. Wilson, 117 S. Ct. 882, 884 (1997), 

the United States Supreme Court extended the Mimms rule to 

passengers. The Court reasoned that, "as a practical matter, the 
- 25 - 

passengers are already stopped by virtue of the stop of the 

vehicle." Wilson, 117 S. Ct. at 886. The Court held that the 

state's weighty interest in preventing violence to police 

outweighed the minimal "additional intrusion" on a passenger's 

rights. Id.

 In the Summers and Wilson lines of cases, the detention of 

the defendant represented an incremental, additional intrusion 

following an antecedent search or seizure based on probable cause 

or reasonable suspicion, such as the execution of a valid search 

warrant or lawful stop. The first facet of the detentions 

approved in the Summers and Wilson lines of cases is that the 

challenged seizure rests on an antecedent determination of 

probable cause or reasonable suspicion. See Wilson, 117 S. Ct. 

at 884 (holding that the Mimms rule "that a police officer may as 

a matter of course order the driver of a lawfully stopped car to 

exit his vehicle[] extends to passengers as well"); Summers, 452 

U.S. at 703 ("The existence of a search warrant . . . provides an 

objective justification for the detention."); Mimms, 434 U.S. at 

109 ("[W]e . . . deal only with the narrow question of whether 

the order to get out of the car, issued after the driver was 

lawfully detained, was reasonable and thus permissible under the 

Fourth Amendment."); Harris v. Commonwealth, __ Va. App. __, __, 

__ S.E.2d __, __ (1998) (citing Wilson, 117 S. Ct. at 886) 

("Following a lawful traffic stop, the Fourth Amendment permits 

the police to order the passengers to get out of the car pending 
- 26 - 

the completion of the stop."); Stanley, 16 Va. App. at 875, 433 

S.E.2d at 513 (citing, inter alia, Mimms, 434 U.S. at 111) ("In 

the context of the lawful stop of an automobile, the balancing of 

these interests may permit the police to require both the driver 

and any passengers to step out of the vehicle."); Thompson, 16 

Va. App. at 481, 431 S.E.2d at 74 (citing Hatcher, 14 Va. App. at 

491-92, 419 S.E.2d at 258-59) ("Upon the lawful stop of an 

automobile, we have recognized that the balancing of these 

interests may permit the police to require both the driver and 

any passengers to step out of the vehicle."); Hatcher, 14 Va. 

App. at 492, 419 S.E.2d at 259 ("If a driver's maneuvers give 

rise to probable cause to believe that a traffic infraction has 

occurred, then effecting a brief detention that includes not only 

the driver and his car but his passengers as well, seems a 

legitimate law enforcement goal."); Bethea, 14 Va. App. at 478, 

419 S.E.2d at 251-52 ("While Mimms involved the driver of the 

vehicle, the principles upon which the decision is based 

logically extend to encompass a passenger in a lawfully detained 

vehicle."); see also New York v. Class, 475 U.S. 106, 117-18 

(1986) (describing one of the three factors in Summers and Mimms

as the existence of "some probable cause focusing suspicion on 

the individual affected by the search").1

 

 1

In three cases, Virginia courts have approved police orders 

for the occupant of a vehicle to perform certain actions on the 

basis of reasonable, articulable suspicion. See Bethea v. 

Commonwealth, 245 Va. 416, 419-20, 429 S.E.2d 211, 213 (1993) 

(criticizing this Court's Mimms-based reasoning, but approving 

order to passenger to get out of the vehicle because it was based 
- 27 - 

 The second facet of the detentions approved in the Summers

and Wilson lines of cases is that the seizures at issue were 

minimal incremental intrusions cumulative to the search or 

seizure already supported by probable cause or reasonable, 

articulable suspicion. See Wilson, 117 S. Ct. at 886 (reasoning 

that "the additional intrusion on the passenger is minimal"); 

Summers, 452 U.S. at 703 ("[T]he detention represents only an 

incremental intrusion on personal liberty when the search of a 

home has been authorized by a valid warrant."); Mimms, 434 U.S. 

at 109 ("We think this additional intrusion can only be described 

as de minimis."); Harris, __ Va. App. at __, __ S.E.2d at __ 

("This authority over passengers at a lawful traffic stop is 

deemed a `reasonable' seizure under the Fourth Amendment because 

the `weighty [public] interest in officer safety' during traffic 

stops, which `may be dangerous encounters,' sufficiently 

outweighs the minimal additional intrusion upon the private 

interests of passengers, who `are already stopped by virtue of 

the [lawful] stop of the vehicle.'" (quoting Wilson, 117 S. Ct. 

 

on reasonable, articulable suspicion); Pryor v. Commonwealth, 17 

Va. App. 117, 118-19, 435 S.E.2d 417, 418-19 (1993) (en banc) 

(reciting facts justifying order for passenger to get out of car, 

and specifically disavowing reliance on our Bethea and Hatcher

line of cases); Woodson v. Commonwealth, 14 Va. App. 787, 792-94, 

421 S.E.2d 1, 4-5 (1992) (explaining Bethea analysis, but 

ultimately "find[ing] that the evidence was sufficient to support 

a reasonable suspicion that [the defendant] was involved in 

criminal activity"), aff'd on other grounds, 245 Va. 401, 429 

S.E.2d 27 (1993) (holding that defendant was not seized within 

the meaning of the Fourth Amendment by the police order to place 

his hands on the steering wheel because he did not comply). 
- 28 - 

at 885-86) (alterations in Harris)); Hatcher, 14 Va. App. at 491, 

419 S.E.2d at 259 ("Here, appellant was not ordered to exit the 

vehicle but to remain beside it while Officer Reetz conducted his 

brief follow-up investigation following his detention of the car 

and its occupants. As was the case in Mimms, the intrusion on 

appellant's privacy rights and freedom of movement was de minimis

[sic] . . . ."); Bethea, 14 Va. App. at 478, 419 S.E.2d at 252 

("To comply with the request, the passenger need only exit the 

vehicle, an act that amounts to no more than a mere 

inconvenience. Like the driver, the passenger 'is being asked to 

expose to view very little more of his person than is already 

exposed.'" (quoting Mimms, 434 U.S. at 111)). In the two cases 

which did not discuss the minimal, incremental nature of the 

seizure, the seizure was not challenged by the defendant, and we 

merely explained the permissibility of the order to exit the 

vehicle before reversing on other grounds. See Stanley, 16 Va. 

App. at 875, 433 S.E.2d at 513-14; Thompson, 16 Va. App. at 481, 

431 S.E.2d at 74. 

 In stark contrast, this case has none of the distinguishing 

features of Wilson, Summers, Mimms, or the Virginia cases 

applying them. Prior to ordering appellant to the ground, Duff 

had made no valid, antecedent determination of reasonable 

suspicion or probable cause with respect to appellant. Instead, 

as the Commonwealth concedes, the police had no individualized 

suspicion of appellant whatsoever. In addition, Duff's seizure 
- 29 - 

of appellant was not an additional increment of intrusion 

incident to an otherwise justified search or seizure of 

appellant, see Mimms, 434 U.S. at 111, appellant's home, see

Summers, 452 U.S. at 701, or a vehicle, which incidentally and 

necessarily intruded on appellant's mobility. See Wilson, 117 

S. Ct. at 886. Duff's order to appellant to lie on the ground 

was the seizure, and it was not conducted as a component part of 

any legal search or seizure. Finally, Duff's seizure of 

appellant cannot reasonably be described as "a mere 

inconvenience," Mimms, 434 U.S. at 111, "minimal," Wilson, 117 

S. Ct. at 886, or "de minimis." Hatcher, 14 Va. App. at 491, 419 

S.E.2d at 259. Rather than being ordered to step out of his car 

or to remain in his house, appellant was ordered to lie face down 

on the sidewalk with his arms extended from his body. As opposed 

to the circumstances addressed in Wilson, Summers, and Mimms, 

Duff did not order appellant to perform a commonplace action like 

stepping out of his car but instead ordered appellant to submit 

to complete police control. 

 Balancing the individual's right to be free from arbitrary 

government intrusions against society's countervailing interest 

in preventing and detecting crime and in protecting its law 

enforcement officers, see Brignoni-Ponce, 422 U.S. at 878, I 

would hold that Duff's seizure of appellant required reasonable, 

articulable suspicion of appellant's involvement in criminal 

activity. "In the absence of any basis for suspecting appellant 
- 30 - 

of misconduct, the balance between the public interest and 

appellant's right to personal security and privacy tilts in favor 

of freedom from police interference." Brown, 443 U.S. at 52; see 

also Moss v. Commonwealth, 7 Va. App. 305, 308, 373 S.E.2d 170, 

172 (1988) (citing Brown, 443 U.S. at 52). The majority's 

resolution of the balance in favor of police power violates the 

"central concern in balancing these competing considerations": 

"to assure that an individual's reasonable expectation of privacy 

is not subject to arbitrary invasions solely at the unfettered 

discretion of officers in the field." Brown, 443 U.S. at 50-51 

(citing Prouse, 440 U.S. at 654-55; Brignoni-Ponce, 422 U.S. at 

882). Given the Commonwealth's concession that Duff did not have 

reasonable, articulable suspicion to seize appellant, I would 

hold the seizure unreasonable. 

 The majority lists several facts in support of the officers' 

fears for their safety, including the number of people at the 

scene, the reputation of the area for violence, and the nature of 

the crime. These factors, however, are relevant only to a 

determination of whether a seizure is supported by reasonable, 

articulable suspicion.2

 They are of no consequence here because 

 

 2The majority cites Brown v. Commonwealth, 15 Va. App. 232, 

421 S.E.2d 911 (1992), and Logan v. Commonwealth, 19 Va. App. 

437, 452 S.E.2d 364 (1994) (en banc), in support of the factors 

it lists. In Brown, we held that an officer's characterization 

of the park where the defendant was arrested as an "open drug 

market" was admissible as evidence of possession of cocaine with 

intent to distribute, 15 Va. App. at 235, 421 S.E.2d at 913, but 

parenthetically noted in the footnote cited by the majority that 

"the defendant's presence in a high crime area, standing alone, 

does not provide the requisite degree of suspicion to justify an 
- 31 - 

the majority does not premise its holding on the ground that the 

officers had reasonable suspicion to order appellant to lie down. 

 Instead, it holds "[u]nder the reasoning of Summers and Wilson" 

that the officers could seize appellant notwithstanding the fact 

that "[t]he officers lacked reasonable suspicion or probable 

cause to believe appellant was engaged in criminal activity and 

did not have an arrest warrant for the two target individuals." 

 In his dissent in Wilson, Justice Stevens wrote, "How far 

this ground-breaking decision will take us, I do not venture to 

predict. I fear, however, that it may pose a more serious threat 

to liberty than the Court realizes." 117 S. Ct. at 890. Today, 

the majority takes the step foreseen by Justice Stevens and 

expands the reasoning of Wilson far beyond its limited context. 

The majority's holding that police may seize individuals without 

reasonable suspicion or probable cause represents a radical 

departure from well-established Fourth Amendment principles found 

in the prior decisions of the Supreme Court of the United States 

as well as the courts of Virginia. Accordingly, I dissent. 

 

investigatory stop." Id. at 234 n.1, 421 S.E.2d at 912 n.1. In 

Logan, we held that a broken rear vent car window constituted 

reasonable, articulable suspicion of criminal activity. Logan, 

19 Va. App. at 441-42, 452 S.E.2d at 367-68.