COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Elder 

Argued at Richmond, Virginia 

NOEL FLOYD EARLEY 

 MEMORANDUM OPINION* BY 

v. Record No. 2398-95-2 JUDGE LARRY G. ELDER 

 NOVEMBER 5, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Cullen D. Seltzer, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

briefs), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Noel F. Earley (appellant) appeals his conviction of one 

count of possession of cocaine with intent to distribute. He 

contends that the trial court erroneously denied his motion to 

suppress a plastic bag of cocaine obtained when Officer O'Kleasky 

of the Richmond police patted the sleeve of his coat during a 

sweep of a known open air drug market. He argues that Officer 

O'Kleasky lacked reasonable suspicion that he was either 

committing a crime or armed at the time Officer O'Kleasky seized 

him and patted his sleeve for weapons.1

 For the reasons that 

follow, we affirm appellant's conviction. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 1The Commonwealth conceded at oral argument that appellant 

was seized before the bag of cocaine was knocked from his sleeve. 

 Therefore, we only consider whether reasonable suspicion existed 

for the seizure and pat-down. 
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 On appeal, we review determinations of reasonable suspicion 

de novo and findings of historical fact for clear error. Ornelas 

v. United States, U.S. , , 116 S. Ct. 1657, 1663, 134 

L.Ed.2d 911 (1996). We also give due weight to inferences drawn 

from historical facts by trial judges and law enforcement 

officials. Id.

 It is well settled that a police officer may conduct a 

pat-down search of a suspect's outer clothing, if he can "point 

to specific and articulable facts which, taken together with 

rational inferences from those facts, reasonably lead him to 

conclude, in light of his experience, that criminal activity may 

be afoot and that the suspect may be armed and presently 

dangerous." Thompson v. Commonwealth, 16 Va. App. 478, 481, 431 

S.E.2d 72, 74 (1993) (quoting Lansdown v. Commonwealth, 226 Va. 

204, 209, 308 S.E.2d 106, 110 (1983), cert. denied, 456 U.S. 

1104, 104 S. Ct. 1604, 80 L.Ed.2d 134 (1984) (quoting Terry v. 

Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L.Ed.2d 889 

(1968))). Whether sufficient cause exists to warrant a stop and 

frisk is determined by the totality of the circumstances. Smith 

v. Commonwealth, 12 Va. App. 1100, 1102, 407 S.E.2d 49, 51 (1991) 

(citing United States v. Cortez, 449 U.S. 411, 417, S. Ct. 690, 

695, 66 L.Ed.2d 621 (1981)). In examining the circumstances, "we 

recognize that a trained police officer may be able 'to perceive 

and articulate meaning to given conduct which would be wholly 

innocent to the untrained observer." Id. (citations omitted). 
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The United States Supreme Court has described the process that 

law officers undertake when assessing the bases for their 

suspicion: 

 The analysis proceeds with various objective 

observations, information from police reports 

if such are available, and consideration of 

the modes or patterns of operation of certain 

kinds of law breakers. From these data, a 

trained officer draws inferences and makes 

deductions -- inferences and deductions that 

might well elude an untrained person. 

 The process does not deal with hard 

certainties, but with probabilities. Long 

before the law of probabilities was 

articulated as such, practical people 

formulated certain common sense conclusions 

about human behavior; jurors as factfinders 

are permitted to do the same--and so are law 

enforcement officers. 

Cortez, 449 U.S. at 418, 101 S. Ct. at 695. 

 In this case, we hold that Officer O'Kleasky had reasonable 

articulable suspicion that appellant may have been engaged in 

criminal activity and was armed. Consequently, a Terry stop and 

a pat-down of appellant was justified. The street corner on 

which appellant was standing with two other males was known as an 

active open air drug market and was the site of many shootings. 

Officer O'Kleasky and his fellow officers arrived to conduct a 

routine sweep of the street corner to search for drugs and 

weapons. As they arrived at the corner, the officers watched 

appellant quickly pull his left fist up into the sleeve of his 

coat and start making a twisting motion within his sleeve. 

Appellant remained at the corner and made no effort to leave 

after the two other males began walking up the street. The 
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officers knew appellant had a history of violent behavior that 

included convictions for shooting a firearm into an occupied 

dwelling and assault. After Officer O'Kleasky twice asked 

appellant to show him his hand, appellant complied while still 

apparently manipulating an object to fall lower within his 

sleeve. Officer O'Kleasky then said to appellant, "put your arm 

down." Appellant put his arm down, but it still appeared that he 

was attempting to keep some object from falling out of his 

sleeve. Concerned for the safety of himself and the other 

officers, Officer O'Kleasky reached over and patted appellant one 

time on his sleeve to check for firearms, causing the plastic bag 

of cocaine to fall from appellant's sleeve. 

 While each of these circumstances standing alone would not 

justify the seizure and search of appellant, when viewed as a 

whole, Officer O'Kleasky had reasonable articulable suspicion to 

seize and pat-down appellant. The additional circumstances of 

this case distinguish it from those cases in which we held that a 

police officer witnessing a peculiar hand movement by a person in 

a high crime area, without more, lacks reasonable suspicion 

justifying a stop and frisk. Riley v. Commonwealth, 13 Va. App. 

494, 497-99, 412 S.E.2d 724, 726-27; Smith, 12 Va. App. at 1104, 

407 S.E.2d at 52; Goodwin v. Commonwealth, 11 Va. App. 363, 367, 

398 S.E.2d 690, 692 (1990). Furthermore, the officers were in an 

established open air drug market known for shootings conducting a 

sweep for weapons and drugs. We have recognized that searches 
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for narcotics "may give rise to sudden violence or frantic 

efforts to conceal or destroy evidence" and that it is reasonable 

for officers to infer that such situations are dangerous. 

Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87 

(1987) (quoting Michigan v. Summers, 452 U.S. 692, 702, 101 

S. Ct. 2587, 2594, 69 L.Ed.2d 340 (1981)). 

 For the foregoing reasons, we affirm the conviction. 

Affirmed. 
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Benton, J., dissenting. 

 Noel F. Earley was standing on the sidewalk at 2:50 in the 

afternoon when the police officers arrived at "a corner that [the 

officers] routinely check during [their] tour" of that 

neighborhood. No evidence in this record tended to prove that 

the officers had a reasonable suspicion that Earley was engaged 

in criminal activity. See Terry v. Ohio, 392 U.S. 1, 30 (1968). 

 For the reasons cogently stated by this Court in Riley v. 

Commonwealth, 13 Va. App. 494, 412 S.E.2d 724 (1992); Smith v. 

Commonwealth, 12 Va. App. 1100, 407 S.E.2d 49 (1991); and Goodwin 

v. Commonwealth, 11 Va. App. 363, 398 S.E.2d 690 (1990), I would 

hold that the police unlawfully stopped and searched Earley. See

also Smith v. Commonwealth, 217 Va. 336, 228 S.E.2d 562 (1976).