COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and AtLee Argued at Richmond, Virginia

BERNARD LEE DODSON MEMORANDUM OPINION  BY v. Record No . 0460-17-2 JUDGE W ILLIAM G. PETTY FEBRUARY 20, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Gregory L. Rupe, Judge Lauren P. Whitley, Deputy Pub lic Defender, for appellant. Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Bernard Lee Dodson entered a conditional nolo contendere plea 1 to possession of cocaine with the intent to distribute, i n violation of Co de § 18.2-248( C), and obstruction of justice, in violation of Code § 18.2-460(C), reserving the right to challen ge the trial court’s denial of his motion to suppress evidence. In challenging the trial court’s denial of his motion to suppress, Dodson argues that the officer s did not have reasonable, articu lable facts to support the stop and frisk, or pat-down search, of D odson’s person. Dodson further argues that his actions in resisting an illegal arrest did not purge the taint of the police officers’ unconstitutional conduct.

 Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Code § 19.2-254 provides i n relevant part, With the approval of the cour t and the consent of the Commonwealth, a defendant may e nter a conditional plea of guilt y in a misdemeanor or felony case in circuit court, reserving the right, on appeal from the judgmen t, to a review of the adverse determination of any specified pr etrial motion. If the defenda nt prevails on appeal, he shall be allowed to withdraw his plea.UNPUBLISHED- 2 - Because the parties are fully c onversant with the record in thi s case and this memorandum opinion carries no preced ential value, we recite onl y those facts and incidents of the proceedings as are necessar y to the parties’ understanding of the disposition of this appeal. We view the evidence in the li ght most favorable to the Commonw ealth, the prevailing party below, granting to it the benefit of any reasonable inferences. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). Police officers from the Richm ond Police Department saw Dodson on a street corner next to a burning candle and stopped to investigate. While talking to Dodson, the officers saw a bulge in Dodson’s pocket and decided to pat him down. Dodson objecte d to the pat down and refused to comply. When the officers pul led Dodson to his feet to impl ement the pat down, he struggled and engaged in what the trial court found to be “assaultive beh avior.” During the struggle, Dodson hit an officer in the f ace with his elbow and knocked th e body camera from the officer’s chest. Dodson was arrested for assaulting a police officer and obstructing justice. 2 After the arrest, the police searche d Dodson and discovered Dodson was we aring two pairs of pants; there were drugs hidden in a pocket of the inner pants. Dodson moved to suppress the evidence, arguing that the police had no cons titutional right to pat him down and he therefore had a right to resist the pat down. In denying the motion to suppress, the tr ial court explained, Put it to you pretty simply. Had he submitted, “I’m not authorizing you to search me in a ny shape, form or fashion,” I’ d have probably suppressed everythin g. But as soon as he engaged in the resistance, which I t hought was assaultive behavior, qui te frankly, it was over. He c ould be searched. He was going downtown for assaulting a polic e officer. Simple as that.

2 Dodson was arrested for assaul ting a police officer and obstru ction of justice. “[W]hen a law enforcement officer has pr obable cause to arrest a suspec t for one crime, it is immaterial if the suspect is later charged w ith something else.” Doscoli v. Commonwealth, 66 Va. App. 419, 428, 786 S.E.2d 472, 477 (2016). It is therefore not relevant to our analysis that Dodson was not charged with assaulting a police officer.- 3 - The only issue before this Court on appeal is whether the trial court erred in concluding that Dodson’s assaultive behavior prov ided probable cau se for an arr est and the subsequent search incident to arrest. We conclude that the trial court did not e rr. We note at the outset that t he drugs were not found during the pat-down search, but rather were found during the more intrusiv e search incident to arrest for obstruction of justice and assault on a police officer. We need not decide, therefore, wh ether the pat down itself was lawful. The only question before us is whether Dodson’s behavi or gave the police probable cause to arrest him for assau lt on a police officer. Dodson do es not contest the fact that he struck an officer with his elbow while he was struggling. Additionall y, Dodson does not argue the evidence was insufficient for his obstruction of justice convic tion. Instead, Dodson argues that he was entitled to resis t an unlawful arrest. “Under the common law, a citizen generally is permitted to use reasonable force to resist an illegal arrest.” Commonwealth v. Hill, 264 Va. 541, 546, 57 0 S.E.2d 805, 808 (2002). In contrast, “a person in this Commo nwealth does not have the righ t to use force to resist an unlawful detention or ‘pat dow n’ search.” Id. at 548, 570 S.E. 2d at 809. This is because “a protective search for weapons or other investigative detention constitutes a brief, though not inconsequential, restriction on a n individual’s freedom of move ment.” Id. at 547, 570 S.E.2d at
808. Here, the officers told Dodson t hat they intended to conduct a pat-down search of the bulge in his pocket. The purpose of the detention fell squarel y under the jurisprudence of Hill. Thus, regardless of whether t he “brief, though not inconsequent ial, restriction on [Dodson’s] freedom of movement,” id., was lawful or unlawful, Dodson did n ot have a lawful right to resist the detention. See also McCr acken v. Commonwealth, 39 Va. App. 254, 276, 572 S.E.2d 493, 504 (2002) (Elder, J., concurring, in part, in the judgment and dissenting, in part) (“No Virginia- 4 - appellate decision hold s that an arrest is unlawful for purposes of entitling the arrestee to resist the arrest simply because the evidence which provides probable cause for the arrest is obtained in a search or seizure that is unreasonable under the Fourth Amendment .”). At the point that Dodson’s resistance gave the o fficers probable cause to believe he had assaulted a police officer or obstructed justice, the officer s had a lawful reason to arre st him and to conduct a search incident to arrest. 3 Dodson also misconstrues the scope of the common law doctrine p ermitting an individual to resist an unlawfu l arrest. This doctrin e is a species of se lf-defense. Brown v. Commonwealth, 27 Va. App. 111, 116-17, 497 S.E.2d 527, 530 (1998). While the doctrine remains a viable defense at trial to a charge of assaulting a police officer, it does not negate the existence of probable cause. As long as the officer has probable cause to b elieve that an assault has occurred, he is justified in making an arr est and conducting a search inc ident to that arrest. “[W]hether or not a search is re asonable within the meaning of the Fourth Amendment,” . . . has never “depend[ed] on the law of th e particular State in which the s earch occurs.” While “[i]ndivid ual States may surely construe their own constitutions as imposing more stringent constraints on po lice conduct than does the Fede ral Constitution,” state law did not a lter the content of the Fourt h Amendment.

3 Dodson argues at great length reg arding the point at which he was seized and when he was “arrested” for purposes of “re sisting arrest.” Issues rela ted to seizure, reasonable suspicion, probable cause, and alleged viola tions of the Fourth Amendment often hinge on technicalities of law and intricacies of the facts . “Close questions as to wheth er an officer possesses articulable suspicion must be resolved i n the courtroom and not fought out on the streets.” Hill, 264 Va. at 548, 570 S.E.2d at 809. “[T]he act of resisting arrest is frau ght with the danger of violence and serious injury to both t he officer and the arrestee. Encouragi ng an arrestee to resist what he considers an unlawful arrest ‘le ad[s] to great mischief with re spect to encouragi ng resistance to, and to endangering, arresting offi cers.’” Doscoli, 66 Va. App. at 425, 786 S.E.2d at 475 (quoting United States v. Simon, 409 F.2d 474, 477 (7th Cir. 1969)). Si mply put, if Dodson was aggrieved by the actions of the police, he had every right to p ursue legal remedies. However, when the remedy he chose was a ssault on a police officer, he di d so at his own peril.- 5 - Virginia v. Moore, 553 U.S. 164, 172 (2008) (first, thir d, and fourth alteration i n original) (quoting California v. Greenwood, 486 U.S. 35, 43 (1988)). “Wh en officers have probable cause to believe that a person has committed a crime in their presenc e, the Fourth Amendment permits them to make an arrest, and to s earch the suspect in order to s afeguard evidence and ensure their own safety.” Id. at 178. Once Dodson’s actions gave offi cers probable cause to believe he had obstructed justice or assaulted a police officer, t he officers could lawfully arre st him and lawfully conduct a search incident to that arrest. Conse quently, the trial court did not err in denying Dodson’s motion to suppress the evidence. Accordi ngly, we affirm the convictions. Affirmed.