COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Elder 

Argued at Richmond, Virginia 

DANNY LAVON GAYLES 

 MEMORANDUM OPINION* BY 

v. Record No. 1382-95-2 JUDGE JAMES W. BENTON, JR. 

 AUGUST 13, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

L. A. Harris, Jr., Judge 

 Steven D. Benjamin (Betty Layne DesPortes, 

Steven D. Benjamin and Associates, on 

briefs), for appellant. 

 Marla Graff Decker, Assistant Attorney 

 General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Danny Lavon Gayles appeals his conviction for possession of 

cocaine. Code § 18.2-250. He contends the trial judge erred in 

admitting evidence obtained in violation of the Fourth Amendment. 

 We agree and reverse his conviction. 

 Viewed in the light most favorable to the Commonwealth, the 

party prevailing below, Richmond v. Commonwealth, 22 Va. App. 

257, 260, 468 S.E.2d 708, 709 (1996), the evidence proved that on 

January 9, 1995, at 2:00 a.m., two Henrico County police officers 

responded in a marked vehicle to a report of three "suspicious 

subjects" at the Henrico Arms Apartment Complex. One of the 

officers testified that when they arrived at the complex, he saw 

three males standing on a sidewalk at a corner in front of an 

 

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

designated for publication. 
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apartment building. The officer testified that the apartments 

are "posted a no-trespassing zone." When the officer stopped his 

vehicle and approached the men, two walked in one direction on 

the sidewalk and the other one walked in the opposite direction 

on the sidewalk. The officer asked the two men together, "Hey, 

how are you doing?" Both men continued to walk until the officer 

asked twice if he could talk to them for a minute. The officer's 

written report states that twice he asked Gayles "to stop." 

 When he asked the men if they lived in the apartment 

complex, Gayles replied "No." Gayles complied with the officer's 

request for identification and gave him his driver's permit. The 

officer then asked "what was he doing in the apartment complex." 

 Gayles said that he was "looking for an address." Gayles could 

not provide the specific address he was seeking but "kept 

pointing in a direction" and saying, "I know it's a building over 

there." 

 The officer asked Gayles if he was armed. Gayles responded, 

"No" and opened his coat to display his waist area. The officer 

then told Gayles, "I'm going to pat you down" and began to frisk 

 Gayles. The officer testified that he "scrunched up the inside 

pockets and the outside pockets of [Gayles'] jacket" and then 

"patted" the front pockets of Gayles' pants. When he patted 

Gayles' rear pockets, he felt "a lump of something." Gayles 

pulled away. As the officer attempted to grab and hold him, 

Gayles ran away. The officer chased him through a parking lot in 
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the apartment complex. During the chase, the officer observed 

Gayles throw a cellophane bag from his pocket. Gayles ran to the 

end of the apartments and stopped. 

 After the officer reached him, Gayles told the officer that 

he did not wish to be caught with a pocketknife. Although the 

officer found nothing in Gayles' left rear pocket, he searched 

along the route of the pursuit and found a bag of rock cocaine. 

The officer also found in another location along the route of 

pursuit a plastic bag containing smaller bags. After arresting 

Gayles, the officer searched him and found a razor blade and 

$118. Gayles denied any knowledge of the cocaine. 

 The trial judge ruled that the pat-down was "certainly 

reasonable under all these circumstances." Thus, the trial judge 

overruled the motion to suppress the cocaine and convicted Gayles 

of possession of cocaine. 

 Agreeing that the officer initiated a consensual encounter, 

see Buck v. Commonwealth, 20 Va. App. 298, 301-02, 456 S.E.2d 

534, 535 (1995), Gayles contends that the officer violated his 

fourth amendment rights by frisking him. The Commonwealth does 

not claim the frisk was a consensual search. Indeed, the facts 

prove that although Gayles lifted up his coat to display his 

clothing, he never granted the officer permission to conduct a 

pat-down for weapons. The Commonwealth argues, however, that the 

officer's concern for his own safety justified the pat-down. 

 An officer may conduct a Terry stop only when the officer 
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has a reasonable, articulable suspicion that an individual is 

engaged in criminal activity. Hayes v. Florida, 470 U.S. 811, 

816 (1985). Furthermore, to subject the individual to a frisk 

for weapons, the officer must "'reasonably suspect[] that the 

person is dangerous' or 'intends to do him bodily harm.'" Payne 

v. Commonwealth, 14 Va. App. 86, 89, 414 S.E.2d 869, 870 (1992) 

(citation omitted). However, the officer may not act upon an 

"inchoate and unparticularized suspicion or 'hunch.'" Moss v. 

Commonwealth, 7 Va. App. 305, 308, 373 S.E.2d 170, 172 (1988) 

(quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). 

 The officer testified that the apartments were located in a 

high crime area and that police officers had been assaulted 

within the complex. Proof that the police encountered or 

detained the accused in a known high crime area is not sufficient 

to justify a fourth amendment seizure. Texas v. Brown, 443 U.S. 

47, 52 (1979); Smith v. Commonwealth, 12 Va. App. 1100, 1104, 407 

S.E.2d 49, 52 (1991). "'Even in high crime areas, where the 

possibility that any given individual is armed is significant, 

Terry requires reasonable, individualized suspicion [that a 

suspect is armed] before a frisk for weapons can be conducted.'" 

Stanley v. Commonwealth, 16 Va. App. 873, 875, 433 S.E.2d 512, 

514 (1993)(quoting Maryland v. Buie, 494 U.S. 325, 334 n.2 

(1990)). 

 While the Commonwealth proved that the time and place of the 

encounter may have increased the officer's suspicions, the 
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evidence never proved why Gayles, in particular, posed a danger 

to the officer's safety. Although the Commonwealth's evidence 

proved that Gayles was unable to name a specific address, Gayles 

did point to an apartment. This evidence did not suggest that 

Gayles' conduct presented a threat to the officer's safety. No 

rule of law authorizes officers to conduct general frisks for 

weapons solely because the officer decides to initiate an 

encounter. Id. We will not assume on these facts that Gayles 

was dangerous simply because an unidentified caller reported 

three suspicious males standing in front of the complex. 

 Although the officer testified that Gayles initially 

attempted to avoid speaking with him, we place little 

significance on this behavior. Gayles had no duty to speak with 

the officer, and his decision to avoid contact with him raises 

only a slight, if any, suggestion of suspicious circumstances. 

See Florida v. Royer, 460 U.S. 491, 497-98 (1983). Viewing the 

circumstances objectively, the evidence was insufficient to prove 

a reasonable articulable suspicion that Gayles was armed and 

dangerous. Generalized suspicion will not support a frisk 

search. Sattler v. Commonwealth, 20 Va. App. 366, 369, 457 

S.E.2d 398, 400 (1995). 

 This case is similar to Smith, where we refused to uphold an 

investigatory stop and frisk when an officer observed an 

individual on a playground at night suddenly stick something in 

his pants. 12 Va. App. at 1104, 407 S.E.2d at 52. Also, in 
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Goodwin v. Commonwealth, 11 Va. App. 363, 398 S.E.2d 690 (1990), 

the Commonwealth proved that police officers observed the accused 

emerge from an open space behind an apartment in an area known 

for crime and that he jammed his hands in his coat upon seeing 

the policemen. 11 Va. App. at 364-65, 398 S.E.2d at 691. We 

held that those observations were insufficient to believe Goodwin 

posed a threat to the officers. Id. at 367, 398 S.E.2d at 692. 

See also Moss, 7 Va. App. at 308, 373 S.E.2d at 172. 

 In this case, Gayles did not make any suspicious movements 

or gestures and even displayed his waist area to the officer. 

That conduct was not threatening. As this Court stated in 

Toliver v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (1996): 

 The circumstances were insufficient to give 

[the] officer . . . an objectively reasonable 

basis for suspecting that [the accused] was 

armed and dangerous. He had no information 

that [the accused] was involved in criminal 

activity, nor had he observed any criminal 

behavior. The mere fact that [the accused] 

was in an area know for drugs was 

insufficient to support an inference that he 

was involved in criminal activity. [The 

accused] talked to [the] officer . . . 

willingly and gave his correct name when 

asked. Nothing suggested that he was 

carrying a concealed weapon. Therefore, the 

frisk was illegal. 

Id. at ___, ___ S.E.2d at ___. Thus, we find the trial judge was 

plainly wrong in ruling that the officer lawfully frisked Gayles. 

 This Court has held that "contraband abandoned during flight 

is not admissible if it is the product of a prior illegal 

seizure." Smith, 12 Va. App. at 1104, 407 S.E.2d at 52. In 
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Smith, the officer conducted an unlawful frisk of the accused who 

struggled with the officer and then fled. After capturing the 

accused, the officer found a bag of crack cocaine along the 

escape route. "The cocaine . . . , although abandoned by the 

[accused] during flight, was first discovered by the police 

officer during his attempt to search the [accused] during an 

investigatory stop." Id. 

 For these reasons, we hold the trial judge erred in refusing 

to suppress the evidence and, therefore, reverse the conviction. 

 Reversed.