COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Bray 

Argued at Richmond, Virginia 

CHRISTOPHER EMANUEL MOSLEY, S/K/A 

 CHRISTOPHER EMMANUEL MOSLEY 

 MEMORANDUM OPINION* BY 

v. Record No. 0879-00-2 JUDGE LARRY G. ELDER 

 MAY 15, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF KING AND QUEEN COUNTY 

Thomas B. Hoover, Judge 

 John C. Jones, Jr., for appellant. 

 Susan M. Harris, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Christopher Emanuel Mosley (appellant) was convicted in a 

jury trial for the attempted capital murder of a police officer, 

use of a firearm in the commission of that offense, possession 

of cocaine, and possession of a firearm while in possession of 

cocaine, pursuant to Code §§ 18.2-31, 18.2-53.1, 18.2-250 and 

18.2-308.4, respectively. On appeal, he argues that the trial 

court erroneously found the officer's non-consensual touching of 

his pocket was not a pat-down search and that the officer lacked 

the reasonable articulable suspicion necessary to support a 

pat-down search of appellant. Therefore, he contends, the trial 
court erroneously denied his motion to suppress. We hold the 

evidence supported the trial court's finding of reasonable 

articulable suspicion necessary for a pat-down search, and we 

affirm appellant's convictions. 

 At a hearing on a defendant's motion to suppress, the 

Commonwealth has the burden of proving that a warrantless search 

or seizure did not violate the defendant's Fourth Amendment 

rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 

S.E.2d 656, 659 (1989). On appeal, we consider the evidence 

adduced at both the suppression hearing and the trial, DePriest 

v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 

(1987), and we view the evidence in the light most favorable to 

the prevailing party, here the Commonwealth, granting to its 

evidence all reasonable inferences fairly deducible therefrom, 

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 

47, 48 (1991). "[W]e are bound by the trial court's findings of 

historical fact unless 'plainly wrong' or without evidence to 

support them[,] and we give due weight to the inferences drawn 

from those facts by resident judges and local law enforcement 

officers." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United 

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 

911 (1996)). However, we review de novo the trial court's 

application of defined legal standards such as reasonable 

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suspicion to the particular facts of the case. See Ornelas, 517 

U.S. at 699, 116 S. Ct. at 1663. 

 "Fourth Amendment jurisprudence recognizes three categories 

of police-citizen confrontations: (1) consensual encounters, 

(2) brief, minimally intrusive investigatory detentions, based 

upon specific, articulable facts, commonly referred to as Terry

stops, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 

L. Ed. 2d 889 (1968), and (3) highly intrusive arrests and 

searches founded on probable cause." Wechsler v. Commonwealth, 

20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1995). In order to 

justify a Terry stop, "an officer must have a 'reasonable and 

articulable suspicion of criminal activity on the part of the 

defendant . . . .'" Hatcher v. Commonwealth, 14 Va. App. 487, 

490, 419 S.E.2d 256, 258 (1992) (quoting Commonwealth v. 

Holloway, 9 Va. App. 11, 15, 384 S.E.2d 99, 101 (1989)). An 

officer who develops reasonable suspicion that criminal activity 

is occurring may stop a person "'in order to identify him, to 

question him briefly, or to detain him briefly, while attempting 

to obtain additional information'" in order to confirm or dispel 

his suspicions. DePriest, 4 Va. App. at 585, 359 S.E.2d at 544 

(quoting Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 

1647, 84 L. Ed. 2d 705 (1985)). 

 Although an officer may not search a suspect simply because 

he is effecting a Terry stop, the officer may conduct a pat-down 

search for weapons if he "has reason to believe that the suspect 

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is armed and dangerous." Adams v. Williams, 407 U.S. 143, 146, 

92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972). Circumstances 

"relevant in [this] analysis include characteristics of the area 

surrounding the stop, the time of the stop, the specific conduct 

of the suspect individual, the character of the offense under 

suspicion, and the unique perspective of a police officer 

trained and experienced in the detection of crime." Christian 

v. Commonwealth, 33 Va. App. 704, 714, 536 S.E.2d 477, 482 

(2000) (en banc) (footnote omitted) (recognizing in footnote 

that "[t]he relationship between the distribution of controlled 

substances . . . and the possession and use of dangerous weapons 

is now well recognized" (quoting Logan v. Commonwealth, 19 Va. 

App. 437, 445, 452 S.E.2d 364, 369 (1994) (en banc)). 

 Our review of the existence of reasonable suspicion 

involves application of an objective rather than subjective 

standard. See, e.g., Whren v. United States, 517 U.S. 806, 

812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996). 

Ordinarily, the fact "'that the officer does not have the state 

of mind which is hypothecated by the reasons which provide the 

legal justification for the officer's action does not invalidate 

the action taken as long as [all] the circumstances, viewed 

objectively, justify that action.'" Id. at 813, 116 S. Ct. at 

1774 (quoting Scott v. United States, 436 U.S. 128, 138, 98 

S. Ct. 1717, 1723, 56 L. Ed. 2d 168 (1978)). 

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 Even if we assume without deciding that Trooper E.D. Gray's 

indirect request to appellant to exit the Ford Escort in which 

appellant was a passenger so that Trooper Gray could search the 

vehicle was improper because the request was not justified by 

the lawful traffic stop, which had ended, or by the driver's 

purported consent to search,1 nevertheless, Trooper Gray had the 

reasonable suspicion necessary to detain and question appellant 

about the likely cigarette violation he observed when he first 

stopped the vehicle and in fact testified that he intended to do 

so later during the encounter. 

 Reasonable suspicion of the cigarette violation permitted 

Trooper Gray to remove appellant from the car, at which time 

additional facts provided him with reason to believe appellant 

was armed. Although the stop occurred during daylight hours, it 

occurred in the vicinity of the B.P. gas station, behind which 

"a lot of people were . . . congregating" despite the presence 

of "no loitering" signs. Trooper Gray had made several arrests 

in that area for drug and weapons possession. Before stopping 

 1

 An officer may require passengers to exit a lawfully 

stopped vehicle for officer safety without particularized 

suspicion of danger or wrongdoing. See Maryland v. Wilson, 519 

U.S. 408, 414-15, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41 (1997). 

However, under at least some circumstances, when the lawful stop 

of the vehicle has been completed and the officer lacks 

reasonable suspicion of any further criminal activity, a search 

purportedly based on the driver's consent violates the Fourth 

Amendment because a reasonable person in the driver's position 

would not believe he is free to disregard the officer's request 

and simply drive away. See Reittinger v. Commonwealth, 260 Va. 

232, 236-37, 532 S.E.2d 25, 27-28 (2000). 

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the Escort, Trooper Gray observed appellant run from the area 

behind the station where people were congregating and enter the 

passenger side of the vehicle. Although the stop itself 

occurred a short distance from the gas station, Trooper Gray 

activated his lights and turned his vehicle around on the 

station's premises, presumably alerting all those congregating 

there that the stop was about to occur. Just as appellant 

exited the vehicle, the driver's brother arrived at the scene 

and refused Trooper Gray's request to leave. Although Trooper 

Gray had requested backup, Trooper McGee had not yet arrived at 

the scene. 

 Trooper Gray then noticed that appellant's pants pockets 

"were real bulgy," despite the fact that the pants themselves 

were baggy, and he observed that "something sharp stuck out" of 

one of them. Although appellant denied having a weapon, Trooper 

Gray "wanted to make sure," based on the size of "the bulge 

. . . and the sharpness of it," that "it was not a weapon that 

would harm [him]." When he touched the bulge with the back of 

his hand, he determined it was hard and sharp, and his fears 

that appellant was armed were not dispelled. At that time, 

Trooper Gray would have been justified in reaching into 

appellant's pocket to determine the object was not a weapon. 

However, he followed a less intrusive course, asking appellant 

again whether he had any weapons or perhaps what was in his 

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pocket, and appellant pulled several items out of the pocket 

himself, including a pager and suspected crack cocaine. 

 These facts, viewed in their entirety, supported the trial 

court's conclusion that the pat-down search which led to Trooper 

Gray's discovery of the cocaine was justified by reasonable 

suspicion to believe, first, that appellant was a minor in 

possession of tobacco in violation of Code § 18.2-371.2 and, 

second, that appellant was armed and dangerous. 

 Appellant's suggestion that the trial court based its 

ruling on the faulty conclusion that the touching of appellant's 

pocket was not a pat-down search is belied by the record. 

Although the trial court said that what Trooper Gray did was 

"not really even a pat-down," it also described his actions as 

"a very limited pat-down" and said "[i]f you want to call it a 

pat-down, okay." Appellant does not contest the trial court's 

finding that he "voluntarily pulled the items out of [his] 

pocket" after Trooper Gray questioned him about the pocket's 

contents. Even if he did contest this finding, as set out 

above, the reasonable suspicion which supported the pat-down 

also supported a search of the contents of appellant's pocket in 

order to dispel Trooper Gray's concern that appellant was, in 

fact, carrying a weapon. Thus, the evidence supports the trial 

court's denial of appellant's motion to suppress. 

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 For these reasons, we hold the trial court's denial of 

appellant's motion to suppress was not erroneous, and we affirm 

appellant's convictions. 

Affirmed.

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