COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Bumgardner 

Argued at Richmond, Virginia 

DARRYL LEON HALL 

 MEMORANDUM OPINION* BY 

v. Record No. 2293-00-1 JUDGE JERE M. H. WILLIS, JR. 

 JULY 31, 2001 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

A. Joseph Canada, Judge 

 Ben Pavek (Office of the Public Defender, on 

brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

for appellee. 

 

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

designated for publication.

 On appeal from his bench trial conviction for possession of 

cocaine, in violation of Code § 18.2-250, Darryl Leon Hall 

contends that the trial court erred in denying his motion to 

suppress evidence obtained in violation of his Fourth Amendment 

rights. For the following reasons, we affirm. 

I. BACKGROUND

 On February 17, 2000, Virginia Beach Police Officers S.J. 

Conklin and D.A. Keisel were conducting surveillance of 3244 

Peele Court in response to several reports of drug activity 

there. The police had previously served a search warrant on the 
residence and had recovered cocaine. Officer Conklin testified 

that he was familiar with the neighborhood, which he 

characterized as an "open-air drug market" with "lot[s] of 

firearms violations," an area where numerous "shots fired" had 

been reported and numerous "drug arrests" had occurred. 

 At approximately 3:00 p.m., the officers observed Hall 

approach the residence and knock on the front door. The woman 

who lived there "came to the door, looked to the right, looked 

to the left, saw [the police], [and] shut the door." Hall went 

to the backyard where he could not be observed because of a 

"privacy fence." The officers exited their vehicle and "walked 

up the alley towards the house, . . . looked through the fence, 

[saw] nobody in the back yard [sic] and [noticed that] the 

drapes were drawn." After approximately fifteen to twenty 

minutes, Hall exited the rear of the house. 

 As Hall approached the officers, Officer Conklin said, 

"Excuse me. Can we talk to you for a minute?" Hall then 

"initiated conversation" with the officers, and Officer Conklin 

asked him "if he knew he was coming from a known drug house." 

Hall replied that he did not. 

 Officer Conklin then asked whether he could see some 

identification and Hall responded, "Yes. I'll give you 

everything I have." He then pulled out a lighter and his 

wallet, removed his ID from his wallet and gave it to Officer 

Conklin who "ran a local check" from his shoulder radio. 

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 After Hall gave Officer Conklin his identification, the 

woman the officers had seen at the front door exited the house, 

approached the group and began arguing with Hall about money. 

As she approached, Officer Conklin "advised [Hall] that he was 

going to pat him down for narcotics and weapons." Officer 

Conklin testified that, as Hall emptied his pockets, he noticed 

a paper towel sticking out of the only pocket Hall failed to 

empty, and this made him "suspicious." 

 Officer Conklin testified that during previous arrests, he 

had recovered "crack stems or cocaine smoking devices wrapped in 

towels." He stated that "in [his] experience they normally take 

paper towels and wet it or wad it up around a smoking device so 

they don't burn their finger when they're smoking it." Officer 

Conklin further stated that he decided to pat Hall down within 

"[a] few seconds . . . [t]en seconds maybe" after Hall handed 

him his identification. 

 In denying the motion to suppress, the trial court 

concluded: 

When the officer asked [Hall] for ID it was 

still consentual [sic] because [Hall] not 

only offered him his ID, he was cooperative. 

He said, I'll give you everything I have. 

* * * * * * * 

The testimony was that after the officer had 

[Hall's] ID, then the woman interjected 

herself or at some point became part of 

this. It was totally consentual [sic] when 

he asked him for the ID, and then while he 

was looking at the ID, checking on the 

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warrants, he was apparently still pushing 

around in his pocket and pulling out things; 

and he was checking his radio to determine 

whether there were any warrants. The court 

feels . . . that during that procedure, he 

spotted the tissue or paper towel, whatever 

it is; and based on that, it's reasonable 

suspicion and he searched him. 

Hall pled not guilty, but stipulated to the Commonwealth's 

evidence. He was convicted of possession of cocaine. 

II. ANALYSIS

 Hall contends that he was unlawfully "seized" when Officer 

Conklin asked for and took possession of his identification. 

Therefore, he argues, all evidence obtained thereafter was the 

fruit of an unlawful seizure and should have been suppressed. 

 "In reviewing a trial court's denial of a motion to 

suppress, 'the burden is upon the defendant to show that the 

ruling, when the evidence is considered most favorably to the 

Commonwealth, constituted reversible error.'" McGee v. 

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

(en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 

S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980)). "Ultimate 

questions of reasonable suspicion and probable cause to make a 

warrantless search" involve issues of both law and fact, 

reviewable de novo on appeal. Ornelas v. United States, 517 

U.S. 690, 699 (1996). Similarly, whether a police-citizen 

encounter constitutes a seizure, thereby implicating the Fourth 

Amendment, presents a mixed question of law and fact, requiring 

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independent appellate review. See Watson v. Commonwealth, 19 

Va. App. 659, 663, 454 S.E.2d 358, 361 (1995). "[I]n performing 

such analysis, 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, 25 Va. App. at 198, 487 S.E.2d at 261. 

 Officer Conklin did not effect a seizure when he requested 

Hall's identification in order to conduct a "check" for 

outstanding warrants. "[A] person has been 'seized' within the 

meaning of the Fourth Amendment only if, in view of all of the 

circumstances surrounding the incident, a reasonable person 

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

States v. Mendenhall, 446 U.S. 544, 554 (1980). See Baldwin v. 

Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647-48 (1992). 

"Thus, a seizure occurs when a law enforcement officer, by 

physical force or some display of authority, restrains in some 

manner a citizen's freedom of movement. Only when such 

restraint is imposed is there a basis for invoking Fourth 

Amendment safeguards." McCain v. Commonwealth, 261 Va. 483, 

490-91, 545 S.E.2d 541, 546 (2001) (citations omitted). 

Examples of circumstances that might 

indicate a seizure, even where the person 

did not attempt to leave, would be the 

threatening presence of several officers, 

the display of a weapon by an officer, some 

physical touching of the person of the 

citizen, or the use of language or tone of 

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voice indicating that compliance with the 

officer's request might be compelled. 

Mendenhall, 446 U.S. at 554 (citation omitted). "In contrast, a 

police request made in a public place for a person to produce 

some identification, by itself, generally does not constitute a 

Fourth Amendment seizure." McCain, 261 Va. at 491, 545 S.E.2d 

at 546 (citations omitted). 

 Officer Conklin requested Hall's identification without any 

show of force or display of authority that would have led a 

reasonable person to believe that he was not free to leave. 

Hall chose to remain and to answer the officers' questions. He 

voluntarily gave his identification to Officer Conklin. Nothing 

in the record suggests that the officers threatened, 

intimidated, restrained, or coerced Hall. Officer Conklin 

retained Hall's identification for "[a] few seconds . . . [t]en 

seconds maybe," during which time Hall could have requested its 

return or simply walked away. He did neither. Officer 

Conklin's mere request for Hall's identification and his brief 

use of that identification for a "check" did not effect a 

seizure for Fourth Amendment purposes. "A seizure does not 

occur in the absence of physical force used by a law enforcement 

officer or a defendant's submission to an officer's assertion of 

authority." Id.

 "Once a police officer has properly detained a suspect for 

questioning, he may conduct a limited pat-down search for 

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weapons if he reasonably believes that the suspect might be 

armed and dangerous." Williams v. Commonwealth, 4 Va. App. 53, 

66, 354 S.E.2d 79, 86 (1987). To support the pat-down, the 

officer must be able to point to articulable facts from which he 

could reasonably infer that the defendant might be armed and 

dangerous. See James v. Commonwealth, 22 Va. App. 740, 754, 473 

S.E.2d 90, 92 (1996). 

"Among the circumstances to be considered in 

connection with this issue are the 

'characteristics of the area' where the stop 

occurs, the time of the stop, whether late 

at night or not, as well as any suspicious 

conduct of the person accosted such as an 

obvious attempt to avoid officers or any 

nervous conduct on the discovery of their 

presence." 

Williams, 4 Va. App. at 67, 354 S.E.2d at 86-87 (quoting United 

States v. Bull, 565 F.2d 869, 870-71 (4th Cir. 1977), cert. 

denied, 435 U.S. 946 (1978)). 

 The encounter in this case took place in a high crime area. 

Officer Conklin testified that the neighborhood was an "open-air 

drug market" with "lot[s] of firearms violations," an area where 

numerous "shots fired" had been reported and numerous "drug 

arrests" had occurred. The police knew the residence to be one 

in which narcotics had previously been found and about which 

recent complaints of narcotics activity had been received. 

"Suspicion of narcotics possession and distribution is . . . 

recognized as a circumstance which, standing alone, gives rise 

to an inference of dangerousness." Williams, 4 Va. App. at 67, 

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354 S.E.2d at 87 (citation omitted). Under these circumstances, 

the police were reasonably concerned for their safety and acted 

reasonably in conducting a protective pat-down search for 

weapons. "To hold otherwise would be an invitation to violence 

in what is always a potentially explosive situation." Id.

 The judgment of the trial court is affirmed. 

 Affirmed.

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Benton, J., dissenting. 

 The evidence proved that the officer obtained Darryl Leon 

Hall's identification, retained it "to see if he had any 

warrants on him," and requested his dispatcher to check for 

outstanding warrants against Hall. I would hold that when the 

officer did so, he seized Hall for purposes of the Fourth 

Amendment. See United States v. Mendenhall, 446 U.S. 544, 554 

(1980) (holding that a person has been seized "if, in view of 

all the circumstances surrounding the incident, a reasonable 

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

Moreover, when a police officer subjects a person to a 

protective frisk for weapons, the officer intrudes on that 

person's privacy and conducts a search and seizure under the 

Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 16-19 (1968). See

also Toliver v. Commonwealth, 23 Va. App. 34, 36, 473 S.E.2d 

722, 724 (1996) (holding that "[w]hile being frisked, no 

reasonable person would feel free to walk away"). 

 To conduct a protective frisk for weapons of an "individual 

whose suspicious behavior he is investigating," an officer must 

have a reasonable articulable suspicion that the individual "is 

armed and presently dangerous to the officer or to others." 

Terry, 392 U.S. at 24. "The purpose of this limited search is 

not to discover evidence of crime, but to allow the officer to 

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

Williams, 407 U.S. 143, 146 (1972). 

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 The record contains no evidence supporting a reasonable 

articulable suspicion that Hall was armed and dangerous. 

Indeed, the officer's testimony established that he only frisked 

Hall to discover drugs. He testified as follows: 

I advised Mr. Hall I was going to pat him 

down for narcotics and weapons. I noticed a 

paper towel sticking out of his pocket. The 

pocket the paper towel was sticking out of 

- that was the only pocket I went to go 

into. When he said he would give me 

everything, he emptied everything but that 

pocket; and based on the other arrests in 

the neighborhood, I have recovered crack 

stems or cocaine smoking devices wrapped in 

towels. 

This testimony does not indicate that the officer was justified 

in believing or even did believe that Hall was armed and 

presently dangerous. The officer merely believed that one of 

Hall's pockets contained drug paraphernalia. In fact, he 

searched only the pocket where the paper towel indicated to him 

the presence of a "smoking device." He was not searching for 

weapons because "that was the only pocket [he] went to go into." 

 The majority relies on testimony about the surrounding area 

and the general circumstances of narcotics activity to justify 

the search. Even if such factors justified a protective frisk 

for weapons, the officer did not conduct such a search. He was 

looking for the evidence of crime and not to protect his safety. 

When an officer makes "no claim that he suspected [the paper 

towel] to be a weapon," he had no basis to seize it. Minnesota 

v. Dickerson, 508 U.S. 366, 378 (1993). The seizure and search 

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of the paper towel were the product of an "exploration 

. . . unrelated to '[t]he sole justification of the search 

[under Terry:] . . . the protection of the police officer and 

others nearby.'" Dickerson, 508 U.S. at 378 (quoting Terry, 392 

U.S. at 29). As in Dickerson, this officer's search for weapons 

"amounted to the sort of evidentiary search that Terry expressly 

refused to authorize." Dickerson, 508 U.S. at 378. 

[E]vidence may not be introduced if it was 

discovered by means of a seizure and search 

which were not reasonably related in scope 

to the justification for their initiation. 

 . . . Suffice it to note that [a 

warrantless weapons] search, unlike a search 

without a warrant incident to a lawful 

arrest, is not justified by any need to 

prevent the disappearance or destruction of 

evidence of crime. The sole justification 

of the search in the present situation is 

the protection of the police officer and 

others nearby, and it must therefore be 

confined in scope to an intrusion reasonably 

designed to discover guns, knives, clubs, or 

other hidden instruments for the assault of 

the police officer. 

Terry, 392 U.S. at 29 (citations omitted). See also Harris v. 

Commonwealth, 241 Va. 146, 154, 400 S.E.2d 191, 196 (1991) 

(holding that the opening of a film canister found in a pat-down 

search for weapons exceeded the scope of a Terry search even 

though the officer's experience led him to believe "people kept 

their narcotics and drugs in film canisters and 'things of that 

nature'"). 

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 I would hold the evidence provides no facts supporting a 

reasonable articulable suspicion that Hall was armed and 

dangerous. Thus, the record establishes no lawful justification 

for the officer to seize the paper towel he saw in Hall's 

pocket. As in Toliver, the following is controlling: 

 The circumstances were insufficient to 

give [the] Officer . . . an objectively 

reasonable basis for suspecting that [Hall] 

was armed and dangerous. He had no 

information that [Hall] was involved in 

criminal activity, nor had he observed any 

criminal behavior. The mere fact that 

[Hall] was in an area known for drug use 

created no inference that he was involved in 

criminal activity. [Hall] cooperated with 

[the] Officer . . . and . . . gave his 

correct name. Nothing suggested that he was 

carrying a concealed weapon. Therefore, the 

frisk was illegal and the trial court erred 

in admitting the evidence . . . . 

23 Va. App. at 37, 473 S.E.2d at 724 (citations omitted). 

 For these reasons, I would hold that the trial judge erred 

in refusing to suppress the evidence. I would, therefore, 

reverse the conviction and remand for a new trial. 

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