Present: All the Justices 

MART T. HARRIS 

OPINION BY 

v. Record No. 002337 JUSTICE LAWRENCE L. KOONTZ, JR. 

September 14, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether a law enforcement 

officer had a reasonable belief that an individual was 

trespassing on private property providing a sufficient basis for 

the officer to detain and conduct a “pat-down” search of the 

individual. 

BACKGROUND 

 On the afternoon of March 20, 1997, Officers J.M. Whitehead 

and T.B. Shelton of the City of Suffolk Police Department 

received a radio dispatch relaying information or a “tip” from 

an anonymous telephone caller that a black male was selling 

drugs near the corner of Davis Boulevard and the private road 

leading into the Cogic Square Apartments, a public housing 

development. The anonymous tipster had identified the 

individual as “Mart Harris” and had indicated that Harris was 

wearing jeans, a white T-shirt, and a checkered jacket. The 

tipster had further stated that Harris was armed. 

 Upon arriving at Cogic Square, Whitehead and Shelton 

observed three men on the property of the housing development at 
the location indicated by the anonymous tipster. One of the men 

was a black male dressed in jeans, a white T-shirt, and a 

checkered jacket. The three men were standing near a bench that 

formerly had been used as a bus stop. A short distance away 

there was a “no trespassing” sign posted on one of the buildings 

of the housing development. 

 Shelton had worked for two and one-half years in a drug 

elimination program at Cogic Square, was familiar with most of 

the residents and their regular visitors, and had never before 

seen any of the three men at the housing development. Shelton 

subsequently testified that for these reasons he formed the 

opinion that the three men were possibly trespassing. Neither 

Shelton nor Whitehead observed any activity consistent with the 

anonymous tipster’s assertion that drugs were being sold. The 

man fitting the description given by the tipster did not readily 

appear to be armed and there were no visible bulges in his 

clothing that might have contained a concealed weapon. 

Shelton approached the man wearing the checkered jacket. 

At that time, Shelton did not question the man to ascertain his 

identity or whether he was a visitor at the housing development. 

Rather, based upon the information from the anonymous tip that 

this man was armed and because this man’s jacket was loose 

fitting, Shelton decided to conduct a pat-down search for 

weapons as a precaution for the officers’ safety. During the 

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pat-down search, Shelton seized a handgun concealed under this 

man’s jacket near his left hip. 

Following the seizure of the handgun and in response to 

Shelton’s questions, the man admitted that he was Mart Harris. 

Shelton then determined that none of the three men was a 

resident of Cogic Square. He charged the other two men with 

trespassing and arrested Harris for trespassing and possession 

of a concealed weapon. Shelton performed a search of Harris 

incident to the arrest on the trespassing and firearm charges 

and seized a clear, zip-lock, plastic bag containing a substance 

later determined to be 3.29 ounces of marijuana. Subsequently, 

Harris was indicted for possession of marijuana with intent to 

distribute, Code § 18.2-248.1, and possession of a firearm after 

having been convicted of a felony, Code § 18.2-308.2. 

 Immediately prior to trial, Harris moved to suppress the 

evidence seized during the protective search and the subsequent 

search incident to arrest. The Commonwealth contended that the 

initial stop and search were permissible because the officers 

had corroborated sufficient information from the anonymous tip 

regarding Harris and his illegal activity and also that Shelton 

reasonably believed Harris was trespassing prior to detaining 

him. 

The trial court denied Harris’ motion to suppress, finding 

that Shelton’s corroboration of the appearance of the individual 

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described by the anonymous tipster coupled with his own 

observations and knowledge of the area provided Shelton with an 

adequate basis to temporarily detain Harris. The trial court 

further found that the protective search was warranted by the 

tipster’s assertion that Harris was armed. The trial court 

convicted Harris on both charges, sentencing him to five years’ 

imprisonment, with three years suspended, for possession of 

marijuana with intent to distribute and five years’ 

imprisonment, with four years suspended, for possession of a 

firearm after having been convicted of a felony. The sentences 

were imposed to run consecutively.1

 Harris’ initial appeal of these convictions to the Court of 

Appeals of Virginia was dismissed for failure to file a timely 

notice of appeal. By an order dated March 2, 1999, this Court 

granted Harris’ subsequent petition for a writ of habeas corpus 

and permitted him to seek a delayed appeal in the Court of 

Appeals. Harris contended in his petition for appeal in the 

Court of Appeals that the anonymous tip lacked sufficient 

indicia of credibility to provide the police with a reasonable, 

articulable suspicion that Harris was involved in criminal 

 1

 Additionally, Harris was convicted of trespassing and 

carrying a concealed weapon, both misdemeanors. Harris did not 

challenge these convictions on appeal. 

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activity. By order dated December 13, 1999, the Court of 

Appeals granted Harris’ petition for appeal. 

 Before the argument of Harris’ appeal in the Court of 

Appeals, the United States Supreme Court released its opinion in 

Florida v. J.L., 529 U.S. 266 (2000), holding that an anonymous 

tip identifying a person by location and appearance and 

asserting that the person is armed is not sufficient to justify 

the temporary detention of a person matching the description 

given by the tipster in order to conduct a pat-down search where 

the law enforcement officers responding to the tip did not also 

corroborate the tipster’s assertions that the individual was 

involved in illegal activity. Id. at 268. Applying J.L., the 

Court of Appeals determined that the anonymous tip received by 

the police in the present case did not provide an adequate basis 

for initially detaining Harris because the officers’ 

observations of Harris, and the other two men, did not 

“corroborate the tipster’s assertion that [Harris] was engaged 

in selling drugs.”2 Harris v. Commonwealth, 33 Va. App. 325, 

332, 533 S.E.2d 18, 20 (2000). 

 2

 The Court of Appeals erroneously recites in its opinion 

that Shelton identified Harris by name before conducting the 

pat-down. Although the testimony concerning the sequence of 

events which preceded the pat-down is somewhat confused, when 

Shelton was asked on cross-examination if he had identified 

Harris “by name” prior to the pat-down, Shelton replied, “No, 

sir.” We note, however, that even if Shelton had identified 

Harris by confirming his name prior to conducting the pat-down, 

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The Court of Appeals reasoned, however, that the police 

were not prohibited from unobtrusively observing the activities 

of a person identified by an anonymous tipster as possibly being 

involved in criminal activity in order to “corroborate[] the 

anonymous information with the specific indicia of reliability 

required by the holding of J.L., or . . . provide[] independent 

reasonable suspicion supported by articulable facts that 

criminal activity may be afoot.” Harris, 33 Va. App. at 333, 

533 S.E.2d at 21 (internal quotation marks omitted)(emphasis 

added). The Court of Appeals concluded that, in light of his 

familiarity with the residents of Cogic Square and their regular 

visitors, Shelton had “a reasonable basis to believe that 

[Harris] was trespassing on private property” and that this 

justified the initial detention of Harris. Id., 533 S.E.2d at 

22. 

The Court of Appeals properly recognized that “the 

authority to conduct a pat-down search does not follow 

automatically from the authority to effect an investigative 

stop.” Id. at 334, 533 S.E.2d at 22. Relying on the language 

in J.L. to the effect that the need to confirm the reliability 

of an anonymous tip “in no way diminishes a police officer’s 

prerogative . . . to conduct a protective search of a person who 

 

this still would not have corroborated the tipster’s allegations 

of criminal wrongdoing. 

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has already been legitimately stopped,” J.L., 529 U.S. at 274, 

the Court of Appeals concluded that Shelton could rely on “the 

information concerning the presence of a weapon” in the tip as 

the basis for conducting a protective pat-down search once 

Harris was otherwise lawfully detained. Harris, 33 Va. App. at 

334, 533 S.E.2d at 22. Accordingly, the Court of Appeals 

affirmed the judgment of the trial court. We awarded Harris 

this appeal. 

DISCUSSION 

 Before addressing the substantive issue raised by this 

appeal, we must first consider the procedural posture of Harris’ 

conviction for possession of a firearm after having been 

convicted of a felony. This Court’s order granting Harris’ 

petition for a writ of habeas corpus and awarding him a delayed 

appeal references the trial court’s record numbers for his 

convictions for possession of marijuana with intent to 

distribute and possession of a firearm after having been 

convicted of a felony, but identifies only the drug-related 

conviction by express reference to the offense by name. The 

notice of appeal filed pursuant to that order also identifies 

both convictions by those record numbers, and Harris sought 

reversal of both convictions in his petition for appeal in the 

Court of Appeals. 

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Although some of the Court of Appeals’ records reference 

both of the trial court’s record numbers, the Court of Appeals 

affirmed Harris’ drug-related conviction, but concluded that a 

delayed appeal had not been awarded with respect to the firearm 

conviction. Harris, 33 Va. App. at 329 n.1, 533 S.E.2d at 19 

n.1. This conclusion was erroneous. 

An appellate court may take judicial notice of its own 

records. Cunningham v. Hayes, 204 Va. 851, 857, 134 S.E.2d 271, 

275, cert. denied, 376 U.S. 973 (1964). Reading our March 2, 

1999 order in its entirety, it is clear that we intended Harris 

to have the right to seek an appeal of both convictions. 

Because the issue raised in the appeal necessarily applies to 

the suppression of all the evidence seized from Harris, the 

Court of Appeals’ erroneous interpretation of our order does not 

undermine the arguments made by the parties, nor will it affect 

our analysis. Indeed, the Court of Appeals recognized that 

“[t]he issue in this case is the validity of the initial stop 

and accompanying pat-down, not the arrest or search incident 

thereto.” Harris, 33 Va. App. at 331, 533 S.E.2d at 20. That 

same issue is dispositive in both of the appealed convictions. 

Accordingly, we hold that Harris’ delayed appeal relates to both 

convictions, the Court of Appeals’ order awarding that appeal 

brought both convictions before that Court, and Harris’ appeal 

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from the judgment of that Court brings both convictions before 

us in this appeal. 

We now turn to the substantive issue raised by this appeal. 

Although the Commonwealth does not expressly concede the 

applicability of the holding in J.L. to the facts of this case, 

it does not contend that the Court of Appeals erred in holding 

that the anonymous tip received by the police, coupled with 

their corroboration of innocuous information asserted in the 

tip, was insufficient to support the initial detention of 

Harris. Accordingly, we need not address that aspect of the 

Court of Appeals opinion. Rather, the dispositive issue is 

whether the Court of Appeals properly concluded under the 

particular facts of this case that Shelton had the requisite 

reasonable, articulable suspicion that Harris may have been 

engaged in criminal wrongdoing sufficient to warrant the initial 

detention of Harris consistent with his rights under the Fourth 

Amendment to the Constitution of the United States. See 

generally Terry v. Ohio, 392 U.S. 1 (1968). 

It is undisputed that the officer did not observe any 

conduct that would support a reasonable belief that Harris was 

selling drugs or that he was unlawfully in possession of a 

concealed weapon. Thus, our focus is upon whether Harris’ 

conduct reasonably suggested that he was trespassing. We are of 

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opinion that our decision in Ewell v. Commonwealth, 254 Va. 214, 

491 S.E.2d 721 (1997), controls our analysis. 

In Ewell, we held that an off-duty police officer working 

as a security guard in an apartment complex was not justified in 

stopping a vehicle leaving the complex’s parking lot and 

detaining the operator based on the officer’s suspicion that the 

operator was trespassing because the officer was unfamiliar with 

the vehicle and its operator. Id. at 217, 491 S.E.2d at 723. 

In that case, the record showed that the officer “was employed 

primarily to enforce the complex’s policy against trespassing. 

The complex’s parking lot had only one access, and it was posted 

with a ten-by-five foot, lighted sign, stating ‘no 

trespassing.’ ” Id. at 215, 491 S.E.2d at 722. The officer 

testified that “he was familiar with most of the complex’s 

residents and their automobiles” and “was concerned because it 

was very early [in the morning] and the car was parked in an 

area suspected of ‘high narcotics’ trafficking.” Id. at 216, 

491 S.E.2d at 722. 

The Commonwealth contends that Ewell may be distinguished 

on several grounds. The Commonwealth first contends that the 

officer in Ewell was familiar with the apartment complex only 

through his part-time employment as a security guard, whereas 

Shelton’s knowledge of Cogic Square through his two-and-a-half 

years of work in the drug elimination program provided him with 

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a greater familiarity with the residents and their guests than 

was evident in Ewell. We disagree. 

There is nothing in Ewell to indicate the length of time 

the officer had been employed as a security guard by the 

apartment complex; thus, we cannot say that Shelton’s asserted 

familiarity with the residents and visitors of Cogic Square was 

quantitatively greater than that of the officer in Ewell. 

Moreover, the officer in Ewell “was employed primarily to 

enforce the complex’s policy against trespassing” and it follows 

logically that his familiarity with the complex, its residents, 

and their guests would be naturally heightened with respect to 

enforcing that policy. By way of contrast, on the record before 

us we cannot say that Shelton’s duties under the drug 

elimination program focused primarily on, or even necessarily 

included, regularly enforcing Cogic Square’s no trespassing 

policy. 

The Commonwealth next contends that Shelton’s testimony 

that he participated in the drug elimination program at Cogic 

Square creates a heightened expectation that drug trafficking 

was occurring at Cogic Square and that Harris and the other two 

men were thus more likely to be trespassers involved in that 

criminal activity. We see no distinction between the assertion 

in Ewell that it was “suspected” that drug trafficking was 

taking place in the parking lot and the “reasonable inference” 

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the Commonwealth asks this Court to draw in this case that an 

ongoing drug elimination program establishes that the particular 

location where Harris was standing was known for drug 

trafficking. 

To the contrary, unlike the officer’s assertion in Ewell

that the specific area where he first observed the defendant in 

her car was suspected as a drug market, Shelton testified only 

that Cogic Square as a whole was the subject of the drug 

elimination program. Moreover, it does not necessarily follow 

that a long-term drug elimination program supports the inference 

that drug trafficking continued to occur, for it might be 

equally true that the program was successful and that Cogic 

Square was being maintained in the program in order to assure 

that it remained drug-free. 

Finally, the Commonwealth contends that while “there was 

nothing unusual about [Ewell] leaving an apartment complex in 

her automobile” near midnight, Harris and the other two men “had 

no apparent reason to be standing on [a] private street corner.” 

The evidence, however, was that the three men were standing and 

conversing near a former and, by appearance, possibly still 

functioning bus stop immediately adjoining a public street. 

Certainly, three persons standing and conversing near an 

apparent bus stop adjoining a public street at midday is no more 

unusual than a person driving away from a parking lot at 

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midnight. Moreover, although the prominence of the “no 

trespassing” sign posted on one of the buildings at Cogic Square 

is not clear from the record, there is nothing in the record to 

suggest that this sign was any more prominent than a ten-by-five 

foot, lighted sign posted at the single entrance to the property 

as in Ewell. Thus, just as in Ewell, the officer observed an 

individual on private property that was posted “no trespassing,” 

but otherwise “act[ing] as any other person might have acted 

under similar circumstances.” Id. at 217, 491 S.E.2d at 723. 

In each case, the officers’ subjective knowledge that the 

area was known for drug trafficking did not attach with any 

particularity to the observed activity or the individual. Each 

officer had no more than an “unparticularized suspicion or 

‘hunch’ ” that criminal activity was afoot. See Terry, 392 U.S. 

at 27. As such, each officer’s subjective belief that the 

individual might be a trespasser was not sufficient to warrant a 

non-consensual investigatory detention. 

The Commonwealth relies upon the information of the 

anonymous tipster that Harris was armed as justification for 

heightening Shelton’s inchoate “hunch” that Harris was 

trespassing to the level of a reasonable, articulable suspicion. 

In doing so, the Commonwealth bootstraps the legitimate concern 

for law enforcement officers’ safety, which permits a protective 

search of a legally detained suspect, to serve as the basis for 

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detaining the suspect. However, the issue before this Court is 

not whether Shelton could, based on the information in the tip 

that Harris was armed, conduct the protective pat-down had 

Harris been otherwise lawfully detained, but whether Shelton had 

a reasonable, articulable suspicion to warrant detaining Harris 

in the first place. 

As we have noted, nothing in the behavior observed by the 

officers corroborated the tipster’s allegation that Harris was 

armed. Nor did the tipster assert that Harris was trespassing, 

and nothing in the information supplied suggests that the 

tipster would have a reason to know whether Harris was lawfully 

on the property of Cogic Square. The mere presence of an 

unknown individual on the property of a large housing 

development does not create a reasonable suspicion that such an 

individual is engaged in trespassing or some other criminal 

activity. Thus, the uncorroborated tip in no way elevates 

Shelton’s inchoate hunch that Harris was trespassing, an offense 

not generally associated with the wrongdoer being armed, to a 

reasonable, articulable suspicion of criminal wrongdoing to 

warrant detaining Harris in order to conduct a protective patdown search based upon that same information. 

Accordingly, we hold that, at the time Shelton detained 

Harris, Shelton lacked a sufficient reasonable, articulable 

suspicion that Harris was engaged in any criminal activity and, 

14
thus, the initial seizure of Harris was in violation of his 

Fourth Amendment rights. Consequently, the evidence obtained as 

a result of that seizure and in the search incident to Harris’ 

arrest was tainted. 

CONCLUSION 

For these reasons, we hold that the trial court erred in 

failing to suppress the evidence obtained as a result of the 

initial seizure of Harris and in the subsequent search of Harris 

incident to his arrest, and the Court of Appeals erred in 

affirming the trial court’s judgment. Accordingly, we will 

reverse the judgment of the Court of Appeals, enter final 

judgment vacating Harris’ convictions for possession of 

marijuana with intent to distribute and possession of a firearm 

after having been convicted of a felony, and dismiss the 

indictments against him. 

Reversed and final judgment. 

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