COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata 

Argued at Alexandria, Virginia 

MOMAR O. GUY, s/k/a 

 MOMAR OBOI GUY 

 MEMORANDUM OPINION* BY 

v. Record No. 1949-99-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JUNE 27, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

Charles L. McCormick, III, Judge 

 Tracy L. Quackenbush, Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 Shelly R. James, Assistant Attorney General 

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

for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Momar O. Guy (appellant) was convicted in a bench trial of 

larceny, subsequent offense, in violation of Code §§ 18.2-96 

and 18.2-103. The trial court denied appellant's pretrial motion 

to suppress evidence seized from a search of his person and a 

subsequent statement made to a police officer. On appeal, he 

argues that the evidence was insufficient to justify a Terry frisk 

for weapons. In the alternative, he argues that the search 

exceeded the scope of a Terry pat-down search for weapons and that 
the "plain feel" doctrine does not apply. For the following 

reasons, we reverse the judgment of the trial court. 

I. 

 On appeal, the defendant bears the burden to establish that 

denying the motion to suppress was reversible error. Whether a 

seizure occurred and whether a frisk for weapons was 

constitutionally valid involve questions of law and fact which 

we review de novo on appeal. See McGee v. Commonwealth, 25 Va. 

App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) (citing 

Ornelas v. United States, 517 U.S. 690, 699 (1996)). "In 

performing such analysis, we are bound by the trial court's 

findings of historical fact unless 'plainly wrong' or without 

evidence to support them. . . ." Id. (citing Ornelas, 517 U.S. 

at 699). We view the evidence in the light most favorable to 

the prevailing party, the Commonwealth in this instance. See

Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 

139 (1994). 

 Viewed in this light, the evidence at the suppression 

hearing established that on May 27, 1998, Officer Daniel Frazier 

(Frazier) was providing security for the grand opening of a 

Wal-Mart. On that occasion, Frazier was standing at appellant's 

car writing a parking summons for failure to display a town 

decal. "At that point in time [Frazier] noticed [appellant] 

come out of the Wal-Mart, walk two rows over and duck down 

behind a pick-up truck and was looking above the bed of the 

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pick-up truck at [Frazier]." The officer "motioned" appellant 

over to him and asked for identification. Upon learning that 

appellant had a suspended license, Frazier issued appellant a 

traffic summons for driving on a suspended operator's license. 

Appellant indicated he was going to call someone to drive him 

home. 

 As Frazier was finishing the paperwork in his car, a woman 

approached him and advised him that appellant "had gone back 

over to the pick-up truck and picked something up . . . and 

stuck it in the waistband -- in the crotch of his pants." When 

the officer looked up, he saw appellant behind the pick-up truck 

walking towards the store. 

 The officer directed appellant back to him and asked 

appellant "what he had stuck down in his pants." Frazier 

testified as follows: 

[Appellant] told me -- I don't know if he 

made any statement or not. I think he told 

me he didn't have anything. At that point 

in time I put him against the car and told 

him to put his hands on the car. I stepped 

back, patted him down for weapons. I went 

to the crotch area and I felt a square box. 

At that point I knew it wasn't a weapon. I 

asked him to remove it or asked him what it 

was and he removed it. 

The item was a "Walkman" device that was still in its store 

packaging. Appellant was handcuffed, taken into the store to 

the security officer, and questioned. According to Frazier, 

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appellant stated that he had stolen the "Walkman" because "he 

was bored." 

 The trial court denied appellant's pretrial motion to 

suppress the evidence and subsequent statements and convicted 

appellant of larceny, subsequent offense, in violation of Code 

§§ 18.2-96 and 18.2-103. 

II. 

 Fourth Amendment jurisprudence recognizes three categories 

of police-citizen confrontations, including the following: 

"(1) consensual encounters, (2) brief, minimally intrusive 

investigatory detentions, based upon specific, articulable 

facts, commonly referred to as Terry stops, 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) (citations omitted). An investigatory stop may be 

initiated only when an officer has "a reasonable suspicion, 

based on objective facts, that the individual is involved in 

criminal activity." Brown v. Texas, 443 U.S. 47, 51 (1979); see

Terry v. Ohio, 392 U.S. 1, 21-22 (1968). 

 Assuming, without deciding, that the stop and frisk for 

weapons in the instant case was permissible under Terry,1 the 

 1

 As an initial matter, the Commonwealth contends that the 

issue of whether the officer reasonably stopped appellant was 

not properly preserved at trial and, thus, is barred by Rule 

5A:18. However, because we assume, without deciding, that the 

stop was constitutionally valid, the Commonwealth's procedural 

challenge is moot. 

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removal of the object from inside appellant's clothing exceeded 

the scope of that pat-down frisk for weapons. It is well 

established that "[a] search for weapons in the absence of 

probable cause to arrest . . . must, like any other search, be 

strictly circumscribed by the exigencies which justify its 

initiation." Id. at 25-26 (citing Warden v. Hayden, 387 U.S. 

294 (1967)). "The purpose of this limited search is not to 

discover evidence of a crime, but to allow the officer to pursue 

his investigation without fear of violence. . . ." Adams v. 

Williams, 407 U.S. 143, 136 (1972). Thus, the pat-down frisk 

"must be limited to that which is necessary for the discovery of 

weapons which might be used to harm the officer or others nearby 

. . . ." Terry, 392 U.S. at 26. See also Ybarra v. Illinois, 

444 U.S. 85, 94-94 (1979) ("Nothing in Terry can be understood 

to allow a generalized 'cursory search for weapons' or, indeed, 

any search whatever for anything but weapons."). 

 In Minnesota v. Dickerson, 508 U.S. 366 (1993), the United 

States Supreme Court established the "plain feel" doctrine, 

which holds that contraband discovered during a lawful Terry

stop is admissible so long as the search does not exceed the 

bounds permitted by Terry. See id. at 373. Thus, if the 

contour or mass of the object makes its identity immediately 

apparent, the officer may lawfully seize it. See id. at 375. 

Once an officer has determined that the object is not a weapon, 

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however, and if its shape or size does not indicate its 

contraband nature, the search must stop. See id. at 378. 

 In the instant case, Frazier's search of appellant should 

have ceased once the officer determined that appellant possessed 

no weapons. See Harris v. Commonwealth, 241 Va. 146, 152, 400 

S.E.2d 191, 195 (1991). When the officer patted down 

appellant's "crotch area" and "felt a square box," he 

immediately "knew it wasn't a weapon." Frazier did not know 

what the object was and could only describe it as "[h]ard box 

shaped." Indeed, Frazier did not learn that the item was stolen 

until well after it was removed from appellant's pants when the 

officer escorted appellant to Wal-Mart security inside the 

store. Here, the officer's search of appellant's pants and 

seizure of the "square box" after having concluded that it was 

not a weapon was unrelated to the sole justification of the 

pat-down frisk (i.e., "the protection of the police officer and 

others nearby."). Therefore, "it amounted to the sort of 

evidentiary search that Terry expressly refused to authorize." 

Dickerson, 508 U.S. at 378. 

 While the officer was not required to be certain of the 

item's nature, he was required to possess probable cause that 

the item was either contraband or evidence of a crime. See

Ruffin v. Commonwealth, 13 Va. App. 206, 209, 409 S.E.2d 177, 

179 (1991). Because the evidence was insufficient to establish 

probable cause that appellant had committed a crime, the search 

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exceeded the bounds permitted by Terry. Accordingly, the trial 

court erred in refusing to suppress the evidence. 

 For the following reasons, we reverse the judgment of the 

trial court and dismiss the indictment. 

 Reversed and dismissed.

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