COURT OF APPEALS OF VIRGINIA
Present: Judges El der, Frank and Haley Argued at Chesapeake, Virginia

GEORGE SHERRELL THOMPSON OPINION BY v. Record No. 2408-07-1 JUDGE ROBERT P. FRANK APRIL 28, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Mar tin, Jr., Judge ∗ J. Barry McCracken, Assistant Public Denfender (Office of the Public Defender, on brief), for appellant. Kathleen B. Martin, Senior Assi stant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
George Sherrell Thompson, appellant, was conv icted, in a bench tria l, of possession of cocaine with the intent to distribute, in violation of Code § 18.2-248; possession of a firearm while possessing with the intent to distribute cocaine, in violation of Code § 18.2 -308.4, possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2; carry ing a concealed weapon, second offense, in violat ion of Code § 18.2-308, and possession of marijuana, in violation of Code § 18.2-250.1. On ap peal, appellant claims the trial court e rred in denying his motion to suppress, contending the police had no legal basis to pat him down. For the reas ons stated, we reverse appellant’s convictions.
BACKGROUND On appeal, we review the evidence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S. E.2d 781, 786 (2003). That principle requires

∗ Judge Alfred M. Tripp pres ided at appellant’s hearing on his motion to suppress.- 2 - us to “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible ev idence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth , 221 Va. 492, 498, 27 0 S.E.2d 755, 759 (1 980) (emphasis and citation omitted). So viewed, in the mo rning of December 10, 2006, Offi cer Gerard Cofer of the Norfolk Police Department approached a Lafayette Boulevar d address to execute an arrest warrant for a person inside that residence. The officer observed appellant standing with two other men “loitering” in front of a convenie nce store on Lafayette Boulevard. Cofer knew from his experience as a police officer, having made a rrests at that location, that the area was known as an “open market for drug sales.” As an undercove r officer, Cofer had previously made drug buys at that location and had made several drug-related arrests there. Cofer testified loitering was a fa ctor in such sales. Signs prohibiting loitering or trespassing were po sted in front of the store, and the City of Norfolk had authorized the police department to enforce “no trespassing” at that convenience store. Prior to executing the arrest warrant at the residence, Cofer observed appellant for approximately five minutes. The execution of the arrest warrant to ok “about ten minutes.” Cofer then returned to the conv enience store. Appellant was “still loitering” in fro nt of the store. He observed appellant for another three to five minutes before he approached appellant. Cofer was dressed in his police uniform, displaying his badg e. The two men with appellant separated and walked away. Upon seeing Cofer, appellant started walking toward the fron t door of the store, but he voluntarily turned around at Cofer’s request. Cofer asked to see ap pellant’s identifi cation, stating that he wanted to check whether appellant had an y outstanding warrants. Appellant gave Cofer the identification, offering no explanation as to why he was standing in front of the store.- 3 - While waiting for the warran t check, Cofer asked appellant if he had any weapons or contraband. Appellant did not respond, and Cofer repeated the question. Appellant again was unresponsive and began acting nervously. Appellan t’s “hand started to tr emble.” Appellant was “shifting his body weight,” and ap peared to be “looking for differe nt avenues of escape.” The officer believed appellant’s beha vior far exceeded the “small degree of nervousness” typically observed during a rout ine police encounter. Cofer asked appellant a third time if he had any weapons. When appella nt remained unresponsive, Cofer placed him on the wall near the front door of the store. Concerned that appellant had a concealed weapon, Cofer told appellant he was goin g to pat him down for weapons for the officer’s safety. Cofer began the pat down. As the officer reached toward appellant’s wa istband, appellant “snatched his right hand down and went towards the left si de of his waistband.” Cofer grab bed appellant’s ri ght wrist. He then felt what he believed from hi s experience was the hand le of a handgun in th e left front side of appellant’s waistband. Upon lifting appellant’s shir t, Cofer discovered a .45 calib er pistol protruding from appellant’s waistband. Cofer th en placed appellant in custody and handcuffed hi m. During a subsequent search in cident to arrest, Cofer recovered a fully loaded magazine clip for the handgun, a bag containing marijuana and cocaine, and a dollar bill with cocaine residue. Pretrial, appellant filed a mo tion to suppress, alleging that the officer had no reasonable articulable suspicion to conduct a pat down, nor probable ca use to search. The tr ial court denied the motion. This appeal follows.- 4 - ANALYSIS On appeal, appellant argues his seizure was illegal because the polic e had no reasonable articulable suspicion that he was engage d in criminal activity in violation of Terry v. Ohio , 392 U.S. 1 (1968). He further contends that the pat down was illegal because the polic e had no reason to believe he was armed and dangerous. When reviewing a trial court’s denial of a motion to suppre ss, “we 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 ) (quoting Ornelas v. United States , 517 U.S. 690, 699 (1996 )). The burden is on the defendant to show that the denial of his supp ression motion, wh en the evidence is considered in the light most favorable to the Co mmonwealth, was reve rsible error. McCain v. Commonwealth , 261 Va. 483, 48 9-90, 545 S.E.2d 541, 545 (2001) (citing Fore v. Commonwealth , 220 Va. 1007, 1010, 265 S.E.2d 729, 73 1 (1980)). “‘Ultimate questions of reasonable suspicion and probable cause to make a warrantless search ’” involve questions of both law and fact an d are reviewed de

novo on appeal. McGee , 25 Va. App. at 198, 48 7 S.E.2d at 261 (quoting Ornelas , 517 U.S. at 691). The Fourth Amendment prohibits only unreasonable searches and seizures. James v. Commonwealth , 22 Va. App. 740, 745, 473 S.E.2d 90, 92 (1996). It is not unreasonable for a police officer to conduct a limited pat-down search for weapons when the officer can point to “specific and articulable facts” “which reason ably lead[] him to conclude, in light of his experience, that ‘criminal activity may be af oot’ and that the suspect ‘may be armed and presently dangerous.’” Lansdown v. Commonwealth , 226 Va. 204, 209, 308 S.E.2d 106, 110 (1983) (quoting Terry , 392 U.S. at 30), cert. denied , 465 U.S. 1104 (1984). “Reasonableness is judged from the perspective of a reasonable o fficer on the scene allowing for the need of- 5 - split-second decisions and without regard to the officer’s intent or motivation.” Scott v. Commonwealth , 20 Va. App. 725, 727, 460 S.E.2d 610, 612 (1995) (citing Graham v. Connor , 490 U.S. 386, 396-97 (1989)). An officer is entitl ed to view the circumstances confronting him in light of his training and experience, Terry , 392 U.S. at 27, and he may consider any suspicious conduct of the suspected person. Williams v. Commonwealth , 4 Va. App. 53, 67, 354 S.E.2d 79, 86-87 (1987). “[A]n appellate court decides cases ‘on the best and narrowest ground available.’” Luginbyhl v. Commonwealth , 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) ( en banc ) (quoting Air Courier Conference v. Am. Postal Workers Union , 498 U.S. 517, 531 (1991) (Stevens, J., concurring)). Thus, we do not address the legality of the seizure in this case because we reverse on other grounds. Our singular inquiry is whethe r Officer Cofer had a reasonable suspicion that appellant was armed and dangerous. An officer may not automatically sear ch a suspect in the course of a Terry stop, but he may frisk the suspect if he devel ops reasonable suspicion during the Terry stop to believe the particular person to be frisk ed is armed and dangerous. Knowles v. Iowa , 525 U.S. 113, 117-18 (1998). Among the factors relevant to this analysis include “characteristics of the area surrounding the stop, the time of th e 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.” McCain v. Commonwealth , 275 Va. 546, 554, 659 S.E.2d 512, 517 (2008). Appellant argues on appeal that his cooperation with the police, i.e., voluntarily approaching the officer and providing hi s identification, coupled with no aggressive be havior, militate against any concern the officer may have had due to the “open drug market” locatio n. Appellant suggests that his nervousness, even with his refusal to an swer Cofer’s inquiry abou t weapons, without more,- 6 - is insufficient to give th e officer reason to believe he was ar med and dangerous. Appellant further points out that prior to the pat down he exhibited no behavior that suggested he was armed and dangerous. We first note that Officer Cofer observed appella nt for eight to ten minutes loitering in front of the store, known to be the site of drug distribution and drug-relat ed arrests. Cofer characterized the area as an “open market for drug sales.” Certainly, th is factor by itself is insufficient to warrant a pat down. “Even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized susp icion before a frisk for weapons can be conducted.” Maryland v. Buie , 494 U.S. 325, 33 4 n.2 (1990). Next, we consider appellant’ s conduct when the officer inquired whether appellant had any weapons. The officer described appellant as nervous , with his hands trembling. He appeared to be “looking for different avenues of escape.” An officer’s perception of a suspect’s ner vousness, without additional articulable facts reasonably suggesting the suspect is armed and presently dang erous, cannot justify a pat-down search. See Moore v. Commonwealth , 12 Va. App. 404, 406-07, 404 S.E.2d 77, 78 (1991) (holding that, where the pat-dow n search was based only on the officer’s “subjective evaluation of the severity of [appellant’s] nervousness,” “the officer lacked sufficient justification to conduct the pat-down search”). “Nervousness . . . st anding alone, is insufficient to justify a frisk for weapons, but ‘nervous, evasive behavior is a pe rtinent factor’ for consid eration in assessing the totality of the circumstances.” McCain , 275 Va. at 554, 659 S.E.2d at 517 (quoting Illinois v. Wardlow , 528 U.S. 119, 124 (2000)); see also Walker v. Commonwealth , 42 Va. App. 782, 792, 595 S.E.2d 30, 35 (2004) (holding appe llant’s strange behavior a nd “very nervous” appearance in area known for drug activity, and officer’s co ncern when appellant refused to remove hand from his pocket, justified frisk); James , 22 Va. App. at 745-46, 473 S.E.2d at 92 (holding- 7 - passenger’s “jittery” behavior wh ile officers arrested driver on felony warrant and passenger’s unresponsiveness to requests to keep hands in vi ew supported a frisk). In contrast to these examples, the record here does not show that appellant concealed or attempted to conceal his hands from Officer Cofer. We are mindful that this Co urt has previously acknowledged that suspicion of narcotics distribution gives rise to an inference of dangerousness. See Williams , 4 Va. App. at 67, 354 S.E.2d at 87 (holding that even though the office rs who detained Williams had no information that he was armed, they acted reasonably when conducting a protective pat-down search for weapon s in light of the fact that they had a reasonable suspicion th at Williams was presently engaged in narcotics distribution); see also Jones v. Commonwealth , 272 Va. 692, 7 01 n.3, 636 S.E.2d 403, 407 n.3 (2006) (noting “it is reasonable for an officer to believe a person may be armed and dangerous when the person is suspected of being in volved in a drug transaction”). We are not prepared to conclude that one who loiters in an “open mark et for drug sales” is automatically subject to a pat down. When there are no other re levant facts to su ggest a person is involved in the distribution of drugs, such as a hand-to-hand transaction, contact with others, or maintenance of a “stash,” we are compelled to conclude that the reco rd does not support a reasonable basis for a weapons pat down. Officer Cofer, an experienced narcotics officer who had previously worked as an undercover agent buying drugs at the location of that convenience store, believed appellant might be involved in narcotics activity. Cofer wa s familiar with the area, having made arrests at that very location. He was equally familiar wi th the pattern of those who sell drugs, indicating that loitering was a factor in the distribution of drugs. However, nothing in the record sugge sts that Officer Cofer had anything more than a hunch that appellant was distributing illegal drugs. See Roulhac v. Commonwealth , 50 Va. App. 8, 18, 646 S.E.2d 4, 9 (2007) (finding no basis to conclude appellant was armed and- 8 - dangerous where the record is silent as to a ppellant's involvement in criminal activity, “much less his association with drug distribution”). The common thread in those cases involving high crime areas and nervous behavior is the specific act of a furtive gesture to su ggest that the suspect is armed. See Jones v. Commonwealth , 52 Va. App. 548, 557, 665 S.E.2d 261, 266 (2008) (findi ng that because appellant refused to show his hands and reached to the floorboard three times, the officer reasonably believed appellant was armed and dangerous and pat down was justified); Bandy v. Commonwealth , 52 Va. App. 510, 519, 664 S.E.2d 519, 523 (2008) (findi ng that appellant’s nervousness, his inability to explain his presence on private propert y, his association with a man carrying cocaine, and his repeated motions toward his pocket made it reasonable for the officer to believe appellant was armed and dangerous.); Walker , 42 Va. App. at 792, 595 S.E.2d at 35 (holding appellant’s strange behavior and “very ne rvous” appearance in area known fo r drug activity, and officer’s concern when appellant refused to remove hand from his pocket, justified frisk); Welshman v. Commonwealth , 28 Va. App. 20, 34, 502 S.E.2d 122, 129 (1998) ( en banc ) (noting that “[t]he refusal of a person detained to show his hands” may provide a basis for a frisk of the person for weapons); James , 22 Va. App. at 745-46, 473 S.E.2d at 92 ( observing that passe nger’s “jittery” behavior while officers arrest ed driver on felony warrant a nd passenger’s unresponsiveness to requests to keep hands in view supported frisk). We again underscore that nothing in this record indicates that appellant conducted himself in such a way as to lead Officer Cofer to believe he was reaching for or concealing a weapon. 1 In addition, there was nothing unique about a ppellant’s clothing that would suggest he was concealing a weapon. In Simmons v. Commonwealth , 217 Va. 552, 231 S.E.2d 218 (1977),

1 Although Officer Cofer testified that appellant reached into his wais tband, this activity occurred after the pat down had begun and theref ore cannot be considered in whether appellant was armed and dangerous prior to the onset of the search.- 9 - for example, the Supreme Court of Virginia held that the office r reasonably concluded that the “warm-up jacket sagging in the front” contained a weapon, and, accordingly, he was justified in searching the suspect for weapons. Id. at 556, 231 S.E.2d at 219-20. Similarly, in United States v. Black , 525 F.3d 539 (4th Cir. 2008), the Fourth Circui t held that after noticing the suspect had a bulge in his pocket that he believed to be a gun, the officer was justified in conducting a Terry stop and patting him down. Here, the Commonwea lth cannot point to a ny facts which suggest that, based upon appellant’s clothing, he possess ed a concealed weapon or was otherwise armed and dangerous. We conclude that Officer Cofer lacked facts giving rise to reasonabl e suspicion to believe appellant was armed and dangerous. Although the area was known as an open-air drug market, the encounter occurred at approximately 8:00 a.m. and in broad daylight . Appellant initially agreed to the encounter and it occurred in a pub lic place, yet appellant was under no obligation to respond to Officer Cofer’s questions. See Cost v. Commonwealth , 275 Va. 246, 253, 657 S.E.2d 505, 509 (2008) (“[A]ppellant’s failure to respond to the officer’s questions is of no particular significance because [appellant] was under no obligation to respond to [the officer’s] questions.”). Cofer observed appellant for nearly fifteen minutes and did not witness appellant or his companions engage in criminal activity. Equally important, the record is silent as to appellant making furtive gestures or concealing his hands. Officer Cofer may have had a hunch that ap pellant was involved with drugs because of the neighborhood, the amount of time he spent out side the convenience store, and appellant’s refusal to answer questions. Ho wever, such a hunch does not rise to the level of reasonable suspicion. The officer’s interaction with appellant during the brief encounter did not elevate that hunch to reasonable suspicion because Officer Co fer developed no additional facts during the course of the encounter that w ould support a reasonable suspicion that appellant was involved in- 10 - criminal activity or was armed and dangerous. Thus, we find that Officer Cofer’s frisk of appellant for weapons was not supported by a re asonable belief he was armed and presently dangerous. See Roulhac , 50 Va. App. at 19, 646 S.E.2d at 10 (“Without consent or reasonable suspicion that appellant was arme d, [the officer] had no lawful auth ority to grab appellant and to pat him down for weapons.”). To that end, we hold that the evidence recove red as a result of that illegal search was not admissible at trial. Wong Sun v. United States , 371 U.S. 471, 485-88 (1963).
CONCLUSION For the foregoing reasons, we find that the tr ial court erred in denying appellant’s motion to suppress. Accordingly, we re verse the trial court and remand for further proceedings if the Commonwealth be so advised. Reversed and remanded.