COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys 

Argued at Richmond, Virginia 

COMMONWEALTH OF VIRGINIA 

 

v. Record No. 1593-02-2 

 MEMORANDUM OPINION* BY 

KEITH FRANKLIN WEEDEN JUDGE RUDOLPH BUMGARDNER, III 

 DECEMBER 3, 2002 

COMMONWEALTH OF VIRGINIA 

v. Record No. 1594-02-2 

CEDRIC ANTHONY FASSETT 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

John Richard Alderman, Judge 

 Amy L. Marshall, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

briefs), for appellant. 

 M. Cody Cowan (Arnold R. Henderson; Arnold 

Henderson & Associates, on brief), for 

appellee Keith Franklin Weeden. 

 Russell E. Allen (Witmeyer & Allen, P.L.C., 

on brief), for appellee Cedric Anthony 

Fassett. 

 Keith Franklin Weeden and Cedric Anthony Fassett were 

charged with possession of marijuana and conspiracy to 

distribute marijuana. The Commonwealth appeals the granting of 

their motions to suppress evidence. Concluding the officers 

 

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

designated for publication.
lacked reasonable suspicion to conduct a pat-down search, we 

affirm. 

 The Commonwealth must show the trial court's ruling on the 

motion to suppress constituted reversible error when considered 

in the light most favorable to the defendants. McGee v. 

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) 

(en banc); Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 

407 S.E.2d 47, 48 (1991). "Ultimate questions of reasonable 

suspicion and probable cause to make a warrantless search" 

involve questions of both law and fact and are reviewed de novo

on appeal. Ornelas v. United States, 517 U.S. 690, 699 (1996). 

 Sergeant Sizemore and Deputy Lantz of the Hanover County 

Sheriff's Office responded to a dispatch that two men in a 

restaurant were "possibly" armed. They met with the manager, 

who pointed out the defendants. The manager explained that an 

off-duty police officer had reported the defendants "may be 

armed." The officers observed nothing unusual about the 

appearance or behavior of the defendants, who were seated in a 

booth. The officers approached them and told the defendants 

someone had reported they had weapons. Sergeant Sizemore told 

the defendants to put their hands on the table and slide out of 

the booth. As Fassett exited, Sizemore saw a fist-sized bulge 

in his waistband and thought it might be a weapon. Sizemore 

patted the bulge and felt what he thought was a plastic bag of 

marijuana. He seized the bag, which turned out to contain 

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marijuana. Weeden then consented to a search of his jacket, 

which was lying on the seat. It contained more marijuana and 

plastic bags. 

 The source of the information, upon which the police acted, 

testified at the supression hearing. In this case, we thus know 

precisely the information available to the police to authorize 

their responses. Michael Mabry was an off-duty Richmond police 

detective. While eating at the restaurant, he noticed the 

defendants because they were loud and boisterous as they 

entered. The two sat in a booth about seven to ten feet from 

Mabry. As Weeden slid into the booth, "his coat fell open and 

there appeared to have been something heavy in his pocket." 

Mabry did not see what the heavy object was and did not 

determine conclusively that it was a weapon. 

 While observing the defendants, Mabry remembered 

investigating unsolved robberies in Richmond conducted by "two 

gentlemen wearing large coats and bandanas, one dark-complected 

and one light-complected." Mabry then informed the manager 

"something didn't look right" and suggested the manager call the 

police "to have someone ride through to keep an eye on the 

place." The manager placed the call, and Mabry spoke to the 

dispatcher himself. He reported what he believed he had 

observed and "explained . . . you might just want to have 

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someone come through" and keep "an eye on the area."1 Mabry left 

the restaurant and never spoke to the arresting officers. 

In deciding whether a seizure occurred, we determine 

"whether, under a totality of circumstances, a reasonable person 

would have believed that he . . . was not free to leave." 

McGee, 25 Va. App. at 199-200, 487 S.E.2d at 262. A significant 

factor to consider is whether an officer has informed an 

individual that he "has been specifically identified as a 

suspect in a particular crime." Id. at 200, 487 S.E.2d at 262; 

United States v. Gray, 883 F.2d 320, 323 (4th Cir. 1989). In 

this case, the officers specifically told the defendants that 

someone had seen them with weapons, and asked them to step out 

of the booth. The Commonwealth agrees that the officers had to 

have reasonable suspicion to pat-down Fassett as he slid out of 

the booth. It maintains that Mabry's observations amounted to 

reasonable suspicion. 

 The investigative detention "must be based upon reasonable 

articulable suspicion that criminal activity is or may be 

afoot." McGee, 25 Va. App. at 199, 487 S.E.2d at 261. The 

officers need "a particularized and objective basis for 

suspecting" the defendants are engaged in criminal activity. 

United States v. Cortez, 449 U.S. 411, 417-18 (1981); Bass v. 

 1

 When asked if he used the word "weapon or handgun" while 

talking to the manager, Mabry responded, "I said possibly it 

could have been the butt of a weapon." 

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Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923 (2000) ("a 

minimal level of objective justification" is required). A 

reasonable suspicion "must be more than an unparticularized 

suspicion or 'hunch.'" Terry v. Ohio, 392 U.S. 1, 27 (1968). 

 Mabry observed a heavy object in the pocket of Weeden's 

jacket as it fell open. He did not see the object and did not 

specifically identify the heavy object as a weapon. After 

recalling a string of robberies in Richmond, Mabry suggested the 

manager call the police to have them increase patrols in the 

area. Mabry's observation amounted to neither reasonable 

suspicion that the defendants were armed and dangerous nor that 

they were engaged in criminal activity. He reported that the 

heavy object might be a weapon and suggested the police keep an 

eye on the area. When the officers arrived, they did nothing to 

investigate the report or to corroborate Mabry's suspicions. 

The officers did not see the defendants engage in any suspicious 

conduct. Nothing was remarkable about their appearance, and 

nothing suggested they were engaged in any criminal activity. 

 Information supporting an officer's investigative detention 

of a suspect "must be reliable in its assertion of illegality." 

Florida v. J.L., 529 U.S. 266, 272 (2000). "The fact that the 

. . . hunch is conveyed to the police does not raise the hunch 

to the level of reasonable suspicion." Beckner v. Commonwealth, 

15 Va. App. 533, 537, 425 S.E.2d 530, 533 (1993). This is not a 

case where the officers were given a conclusory assertion that 

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the defendants were armed from which they could infer personal 

observation. Id. at 537, 425 S.E.2d at 533. If information 

that a defendant might be armed is insufficient for a detention, 

it cannot be used as the basis for a pat-down. Harris v. 

Commonwealth, 262 Va. 407, 416-17, 551 S.E.2d 606, 611 (2001). 

 In this case, the facts do not constitute a reasonable 

suspicion of criminal activity. We conclude the officers lacked 

a particularized and objective basis to support a detention of 

the defendants and to permit a pat-down of them. Accordingly, 

we affirm. 

 Affirmed. 

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