COURT OF APPEALS OF VIRGINIA 

 

Present: Judges Benton, Elder and Senior Judge Coleman 

Argued at Chesapeake, Virginia 

EDWARD BRIAN WILLIAMS 

 MEMORANDUM OPINION* BY 

v. Record No. 2854-01-1 JUDGE LARRY G. ELDER 

 MAY 13, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY 

Robert B. Cromwell, Jr., Judge 

 Roger K. Grillo for appellant. 

 Margaret W. Reed, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Edward Brian Williams (appellant) appeals from his bench 

trial convictions for breaking and entering, petit larceny, and 

possession of cocaine. On appeal, he contends the trial judge 

erred in denying his motion to suppress both his confession and 

cocaine that was seized during a search of his pocket. We hold 

the denial of the motion to suppress was not error because, 

although the officer lacked reasonable suspicion to believe 

appellant was armed and dangerous, the officer had probable cause 

to arrest appellant for breaking and entering and larceny prior to 

frisking and questioning him. Thus, we affirm the convictions. 

 

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

designated for publication.
 I. 

 The evidence proved that William Sleeth was going to his 

residence when he saw a microwave oven on appellant's porch. 

Later, while Sleeth was visiting a neighbor, appellant approached 

the two men and asked if they were interested in purchasing a 

microwave oven. After Sleeth determined it was the same microwave 

oven he had earlier seen on appellant's porch, both declined 

appellant's offer. When Sleeth left his neighbor's residence, he 

noticed that the door on Amos Parsons's residence "was sticking 

out quite a distance." Because this appeared unusual and Parsons 

was his friend, Sleeth decided to investigate. He noticed 

Parsons's microwave oven was missing and "recollected the one 

[appellant had offered to sell him] looked like" Parsons's 

microwave oven. Sleeth was "pretty familiar" with Parsons's 

microwave because he had "used it quite frequently" when he lived 

with Parsons for a week. 

 After Sleeth contacted Parsons, Parsons called the police and 

reported a burglary and theft of his microwave oven. When Officer 

Robbie Fisher and another officer responded, Sleeth described 

appellant's attempt to sell a microwave. As this was occurring, 

Officer Fisher saw appellant exit a car and walk to his residence. 

Officer Fisher, who had known appellant for almost twenty years, 

said he believed appellant had both a "drinking problem" and a 

"drug problem." 

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 Officer Fisher approached him and asked him "if he had any 

knowledge about the microwave that was stolen from Mr. Parsons." 

Appellant said he had no knowledge of it. Officer Fisher then 

advised appellant that "[he] had a witness that said . . . 

[appellant] did have the [stolen] microwave earlier in the 

evening" (emphasis added), and Fisher asked if appellant would 

come to the police station to resolve the matter. Appellant did 

not object or respond in any way. 

 Officer Fisher testified that he did not arrest appellant but 

"advised [appellant he] was going to pat him down before placing 

him in the police car." As Officer Fisher "started going toward 

[appellant] to pat him down," appellant raised his arms. The 

officer also testified that he had no reason to suspect appellant 

was armed and dangerous. Instead, for his own safety and the 

safety of the officer who would be in the car with him and 

appellant, Fisher "just wanted to pat [appellant] down just to 

make sure" he was unarmed. 

 While conducting the pat-down, Officer Fisher felt a "small 

cylinder type round object" in appellant's front jacket pocket. 

He removed it and said to appellant, "[T]his is a crack pipe." 

After appellant and Officer Fisher discussed the pipe, Fisher 

transported him to the police station. At the police station, 

appellant waived his Miranda rights and made a statement to 

Fisher. Appellant admitted that he broke into Parsons's residence 

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and took a microwave oven. He said he took the microwave because 

Parsons owed him money. 

 Appellant was charged with the instant offenses and moved to 

suppress. He argued Officer Fisher lacked reasonable suspicion to 

believe he was armed and dangerous and could have avoided any 

threat to his safety by "interrogat[ing]" appellant at the scene 

rather than transporting him to the station. The Commonwealth 

argued reasonable suspicion of a completed crime was sufficient to 

support a frisk when coupled with the heightened safety risk 

presented by an officer's traveling with a suspect in a vehicle. 

The trial court held (1) that Officer Fisher acted reasonably in 

approaching appellant to question him about the burglary and (2) 

that frisking appellant prior to transporting him in Fisher's 

police cruiser was reasonable to ensure the officers' safety. 

 The court subsequently tried appellant on pleas of not guilty 

and convicted him of breaking and entering, possession of cocaine, 

and petit larceny. 

 II. 

 On appeal of a ruling on a motion to suppress, we view the 

evidence in the light most favorable to the prevailing party, here 

the Commonwealth, granting to the evidence all reasonable 

inferences deducible therefrom. Commonwealth v. Grimstead, 12 

Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by 

the trial court's findings of historical fact unless 'plainly 

wrong' or without evidence to support them," McGee v. 

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Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en

banc), but we review de novo the trial court's application of 

defined legal standards such as probable cause and reasonable 

suspicion to the particular facts of the case, Ornelas v. United 

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 

911 (1996). 

 Under settled principles, in order to conduct a pat-down 

weapons frisk, an officer must (1) rightly be in the presence of 

the party frisked so as to be endangered if the person is armed, 

see 4 Wayne R. LaFave, Search and Seizure § 9.5(a), at 246 (3d ed. 

1996), and (2) have reasonable suspicion that the person may, in 

fact, be armed and dangerous, see, e.g., Phillips v. Commonwealth, 

17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993). The requirement 

that an officer be rightly in the presence of the person frisked 

means that the officer must have a duty to be in the person's 

presence, such as to conduct an investigatory stop or to arrest 

some other person. See LaFave, supra, at 247 (citing Terry v. 

Ohio, 392 U.S. 1, 32-33, 88 S. Ct. 1868, 1885-86, 20 L. Ed. 2d 889 

(1968) (Harlan, J., concurring)). "[A] frisk for self-protection 

cannot be undertaken when the officer has unnecessarily put 

himself in a position of danger by not avoiding the individual in 

question." Id.

 Here, at the hearing on his motion to suppress, appellant 

said Officer Fisher could have "interrogated him" at the scene and 

argued only that Officer Fisher lacked reasonable suspicion to 

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believe he was armed and dangerous, thereby implicitly conceding 

the existence of reasonable suspicion for the detention and 

questioning. The trial court held Officer Fisher's frisking 

appellant was reasonable because Fisher (1) had reasonable 

suspicion to believe appellant had committed the burglary1 and (2) 

 1

 The trial court made the following statement in denying 

the motion: 

[T]he evidence clearly indicates to the 

court that Officer Fisher responded to a 

possible burglary. When he got there he 

spoke to the victim who was missing a 

microwave. Then he spoke to the neighbor 

across the street who said that [appellant] 

tried to sell him a microwave, so I don't 

find it unusual at all that . . . Officer 

Fisher[] approached [appellant] knowing his 

history ranging from alcohol to drugs. 

[Appellant] made no objection to going down 

to the station and being questioned. I 

can't imagine a police department in the 

United States that doesn't have as a matter 

of policy you must search somebody before 

you put them in a cruiser to transport them. 

The officer said he did it for his own 

safety. I find nothing unreasonable or 

unusual about the officer's actions . . . . 

Although the trial court did not use the words, "reasonable 

suspicion," the court's recitation of the above facts, viewed in 

conjunction with the Commonwealth's argument that Officer Fisher 

had reasonable suspicion to believe appellant had been involved 

in a completed crime, support the conclusion that the trial 

court simply adopted the Commonwealth's argument as the basis 

for its denial of the suppression motion. 

Further, "[a]bsent clear evidence to the contrary in the 

record, the judgment of a trial court comes to us on appeal with 

a presumption that the law was correctly applied to the facts." 

Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 

291 (1977). Here, as discussed infra in the text, clear 

evidence in the record establishes only that the trial court 

erred in upholding the pat-down because no evidence proved 

appellant may have been armed and dangerous and Officer Fisher 

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was about to transport appellant in his police cruiser. These 

facts, standing alone, were insufficient to justify the frisk. 

The trial court did not find appellant was armed and dangerous, 

and Officer Fisher expressly testified he had no reason to believe 

appellant was armed and dangerous. Thus, the trial court's stated 

basis for denying the suppression motion was erroneous. 

 Nevertheless, if Officer Fisher had probable cause to arrest 

appellant, the frisk of appellant was lawful as a search 

incident to arrest. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 

S. Ct. 2556, 2564-65, 65 L. Ed. 2d 633 (1980) (holding search 

may precede formal arrest so long as police have probable cause 

to arrest at time of search). Although Officer Fisher testified 

he did not arrest appellant before the frisk search, that 

circumstance is not dispositive of Fisher's right to search 

incident to arrest. Id.

 In determining whether an officer had probable cause to 

arrest, "the officer's subjective beliefs are irrelevant." 

Dickerson v. Commonwealth, 35 Va. App. 172, 183, 543 S.E.2d 623, 

 

expressly testified he had no basis for harboring such a belief. 

Based on the presumption and the existence of evidence to 

support a finding that Officer Fisher had reasonable suspicion 

to believe appellant committed the burglary and theft, we 

conclude the trial court made this preliminary finding before 

concluding erroneously that the need to assure officer safety 

during such an encounter supported the weapons frisk. 

Thus, we hold the trial court's denial of the motion 

constituted a ruling that Officer Fisher had reasonable 

suspicion for the detention and questioning. 

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628 (2001); see also Whren v. United States, 517 U.S. 806, 

812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996). 

The legal standard of probable cause, as the 

term suggests, relates to probabilities that 

are based upon the factual and practical 

considerations in everyday life as perceived 

by reasonable and prudent persons. The 

presence or absence of probable cause is not 

to be examined from the perspective of a 

legal technician. Rather, probable cause 

exists when the facts and circumstances 

within the officer's knowledge, and of which 

he has reasonably trustworthy information, 

alone are sufficient to warrant a person of 

reasonable caution to believe that an 

offense has been or is being committed. 

Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 

(1981). 

 The evidence, viewed in the light most favorable to the 

Commonwealth, proved that when Officer Fisher first approached 

appellant, he knew someone had broken into Parsons's trailer and 

taken his microwave oven. Officer Fisher was aware that 

appellant had a "drug problem." Sleeth told Officer Fisher he 

had seen a microwave oven on appellant's porch earlier and that 

appellant had offered to sell the microwave to him. Officer 

Fisher told appellant a witness "said [appellant] [had] the 

[stolen] microwave earlier in the evening." Sleeth testified at 

trial that he was "pretty familiar" with Parsons's microwave 

oven because he had "used it quite frequently" and had cooked 

meals in it when he lived with Parsons for a week. 

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 We hold this evidence established that Officer Fisher had 

probable cause to believe appellant possessed the microwave that 

had been taken by burglary from Parsons's residence. Once the 

police have probable cause to arrest, it is not "particularly 

important that the search preceded the arrest rather than vice 

versa." Rawlings, 448 U.S. at 111, 100 S. Ct. at 2564. 

Therefore, the trial judge did not err in denying the motion to 

suppress. 

 It is true that the issue of probable cause to arrest was 

not expressly presented to the trial court and that the record 

contains no indication the trial court considered this issue 

directly.2 Nevertheless, appellant implicitly conceded the 

 2

 A panel of this Court previously stated in dicta that the 

right-result-wrong-reason doctrine "may not be used if the 

correct reason for affirming . . . was not raised in any manner 

at trial." Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 

S.E.2d 312, 313-14 (1992). However, a majority of this Court, 

sitting en banc, recently implicitly refused to apply that 

principle where the majority believed that application of the 

right-result-wrong-reason doctrine did not require findings of 

fact in addition to those already made by the trial court. 

McCracken v. Commonwealth, 39 Va. App. 254, 260-62, 572 S.E.2d 

493, 496-97 (2002) (en banc) (on appeal of conviction based in 

part on trial court's ruling that officer had reasonable 

suspicion to perform weapons frisk that led to discovery of 

marijuana, holding frisk was justified by existence of probable 

cause to arrest defendant for trespass without discussing fact 

that "existence of probable cause to arrest for trespass or any 

other crime was not raised at trial as a basis for justifying" 

search, McCracken, 39 Va. App. at 272, 572 S.E.2d at 502 (Elder, 

J., concurring in part and dissenting in part)); id. at 272, 572 

S.E.2d at 502 (Elder, J., concurring in part and dissenting in 

part) (noting that "the trial court gave no indication that it 

considered [the issues of probable cause to arrest for trespass 

or standing to challenge the deputy's entry of the residence 

where the frisk occurred] or made any of the additional factual 

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existence of reasonable suspicion to "interrogate[]" him about 

the burglary and theft; the Commonwealth expressly argued the 

existence of reasonable suspicion regarding theft of the 

microwave; and the trial court held Officer Fisher had 

reasonable suspicion for the detention and questioning. In 

concluding on appeal that Officer Fisher had probable cause to 

arrest, we hold only that the uncontested facts establishing 

reasonable suspicion also proved the "greater" legal theory of 

probable cause to arrest. See McLellan v.Commonwealth, 37 

Va. App. 144, 155, 554 S.E.2d 699, 704 (2001) (noting that 

doctrine permitting appellate court to affirm on alternate 

ground requires that "the correct reason and its factual basis 

were presented at trial"); Driscoll v. Commonwealth, 14 Va. App. 

449, 452, 417 S.E.2d 312, 314 (1992) (holding doctrine does not 

apply if additional factual findings are required). Under these 

facts, the theory on which we affirm was before the trial court 

by implication. Compare Eason v. Eason, 204 Va. 347, 352, 131 

S.E.2d 280, 283 (1963) (holding Court could not affirm on ground 

different from that applied by trial court because doing so 

would require Court to "recognize and uphold a different 

defense[,] . . . estoppel by inconsistent conduct, based upon 

the releases, [which] was not properly asserted in the 

 

findings critical to . . . resolution [of those issues]" beyond 

a subsidiary finding that the person who telephoned police about 

the defendant's presence in the house was its owner). 

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pleadings" and was not "before [the trial court] . . . in any 

manner"). 

 Accordingly, we affirm the convictions. 

 Affirmed. 

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Benton, J., dissenting.

 The Commonwealth argues on appeal that Officer Fisher's 

search of Edward Brian Williams was a search incident to arrest. 

At the suppression hearing and at trial, however, the 

Commonwealth's attorney did not make this argument. Indeed, 

prior to this appeal, the Commonwealth never asserted that the 

officer had probable cause to arrest Williams when he searched 

him. 

 At the hearing on the motion to suppress the evidence, the 

Commonwealth's attorney argued the frisk was lawful because "it 

was reasonable for the officer to have a fear that [Williams] 

may be armed and dangerous . . . when he's getting into a 

[police] vehicle where both the officers are in the front seat 

with their backs turned to the defendant." When the judge 

considered the arguments and ruled on the motion, he made 

findings that do not suggest he ever considered this matter 

through the prism of a Terry analysis. He found as follows: 

 Officer Fisher responded to a possible 

burglary. When he got there he spoke to 

[Parsons] who was missing a microwave. Then 

he spoke to the neighbor across the street 

who said that [Williams] tried to sell him a 

microwave, so I don't find it unusual at all 

that this officer, Officer Fisher, 

approached [Williams] knowing his history 

ranging from alcohol to drugs. The 

defendant made no objection to going down to 

the station and being questioned. I can't 

imagine a police department in the United 

States that doesn't have as a matter of 

policy you must search somebody before you 

put them in a cruiser to transport them. 

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 These findings do not indicate the judge found that the 

neighbor informed the officer he recognized the microwave to be 

the same or similar to the one taken from Parsons's residence. 

No evidence proved how close the neighbor was to the microwave 

oven when he saw it on Williams's porch. The officer merely 

testified that Parsons and the neighbor were explaining to him 

that Williams "had offered [the neighbor] the microwave earlier 

in the evening." Indeed, the judge found that the neighbor said 

Williams "tried to sell him a microwave." (Emphasis added). 

 The issue whether this evidence established either 

reasonable suspicion or the greater standard of probable cause 

was not before the trial judge. The trial judge, therefore, did 

not make factual determinations about what the officer knew 

concerning the prior thefts or the identity of the microwave 

oven. Consequently, he made no findings to establish whether 

the evidence was sufficient for either reasonable suspicion or 

probable cause. 

 Our appellate review is circumscribed by the issues put 

forth in the arguments advanced at trial and the judge's ruling. 

We have held that this limitation on our power occurs when the 

suggested alternative "reason for affirming the trial [judge] 

was not raised in any manner at trial" and "where, because the 

trial [judge] has . . . confined [the] decision to a specific 

ground, further factual resolution is needed." Driscoll v. 

Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313-14 

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(1992). See also Stateren v. Montgomery Ward and Co., 234 Va. 

303, 305-06, 362 S.E.2d 324, 326 (1987) (finding the "right 

result wrong reason" rule inappropriate because the trial judge 

confined his decision to a specific ground); Sheler v. 

Commonwealth, 38 Va. App. 465, 475 n.1, 566 S.E.2d 203, 208 n.1 

(2002) (holding that because the trial judge limited his 

analysis and failed to resolve a factual matter this Court will 

not reach the alternate issue). 

 The trial judge's findings only reflect the judge's belief 

that Williams volunteered to go to the police station for 

questioning. Relying on the officer's testimony that "he 

[frisked Williams] for his safety," the trial judge found 

"nothing unreasonable or unusual about the officer's actions and 

[denied] the suppression motion." In so finding, the trial 

judge apparently relied on his intuition because the officer 

unambiguously testified that he did not suspect Williams was 

armed and dangerous and that he did not arrest Williams. 

 The evidence proved that when the officer frisked Williams, 

he had not arrested Williams, had not sought or obtained 

Williams's consent for the frisk, and had no apprehension that 

Williams was armed and dangerous. The officer testified that 

Williams had agreed to get into the police car with the two 

officers and accompany them to police headquarters to discuss 

the complaint. He also testified Williams was free not to go to 

the station with the officers. Thus, the officer testified that 

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he searched Williams solely because he was entering the police 

car. We held in Sattler v. Commonwealth, 20 Va. App. 366, 457 

S.E.2d 398 (1995), that such a search was unreasonable. 

 The Fourth Amendment prohibits 

unreasonable searches and seizures. 

"Whether a search . . . is unreasonable is 

determined by balancing the individual's 

right to be free from arbitrary government 

intrusions against society's countervailing 

interest in preventing or detecting crime 

and in protecting its law enforcement 

officers." To conduct a patdown search, a 

police officer must be able to "'"point to 

specific and articulable facts which, taken 

together with rational inferences from those 

facts,"' reasonably lead him to conclude, 

'in light of his experience, that "criminal 

activity may be afoot" and that the suspect 

"may be armed and presently dangerous."'" 

. . . [W]e [have] held that it was 

unreasonable for police officers to conclude 

that a person on a motor scooter was armed 

and dangerous because a police officer saw a 

bulge in the person's pocket following a 

traffic stop. 

 The evidence at the suppression hearing 

failed to prove that the officer had 

specific and articulable facts upon which to 

conclude that [the individual] was armed and 

dangerous. The officer initially detained 

[him] solely for the purpose of issuing a 

summons for a traffic infraction. [He] was 

not under arrest. The officer offered no 

reason to support a belief that [he] was 

armed or dangerous or that he possessed 

illegal drugs. 

 The officer searched [him] solely because 

of his general policy of searching every 

person entering his vehicle. In every 

encounter, "Terry requires reasonable, 

individualized suspicion before a frisk for 

weapons can be conducted." The officer's 

generalized policy of frisking all persons 

does not satisfy the restrictions imposed by 

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Terry. "Indeed, if everyone is assumed to 

be armed and dangerous until the officer is 

satisfied that he or she is not, then 

officers would be able to frisk at will -- a 

result not contemplated by the Fourth 

Amendment." 

Id. at 368-69, 457 S.E.2d at 399-400 (citations omitted). See 

also Harrell v. Commonwealth, 30 Va. App. 398, 517 S.E.2d 256 

(1999). 

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

in ruling that the frisk of Williams was a reasonable search 

under the Fourth Amendment and, consequently, he erred in not 

suppressing the cocaine and the confession. See Davis v. 

Commonwealth, 37 Va. App. 421, 435, 559 S.E.2d 374, 380 (2002). 

Thus, I would reverse the convictions. 

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