COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, O’Brien and White Argued at Norfolk , Virginia

DANIEL WILLIAM DRIER MEMORANDUM OPINION * BY v. Record No. 0030

- 22

- 1 JUDGE KIMBERLEY S. WHITE DECEMBER 13, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Steven C. Frucci , Judge Roger A. Whitus ( Slipow & R obusto , P.C. , on brief), for appellant. Matthew P. Dullaghan , Senior Assistant Attorney General ( Jason S. Miyares , Attorney General, on brief ) , for appellee.

Daniel William Drier ( “Drier” ) appeals his conviction s , following conditional guilty plea s for possession of a controlled substance and driving on a suspended or revoked license in violation of Code § § 18.2

- 250 and 18.2

- 272

. Drier asserts that the Virginia Beach Circuit Court ( “ t rial

c ourt” ) erred when it denied his motion to suppress. For the following reasons, we affirm the t rial

c ourt’s denial of Drier’s motion to suppress.
BACKGROUND “In reviewing the denial of a motion to suppress, we consider the facts in the light most favorable to the Commonwealth, the prevailing party at trial.” Aponte v. Commonwealth , 68
Va. App. 146, 156 (2017) (quotin g Hairston v. Commonwealth , 67 Va. App. 552, 560 (2017)). “It is the appellant’s burden to show that when viewing the evidence in such a manner, the trial court committed reversible error.” Id. (quoting Hairston , 67 Va. App. at 560). “While we are bound to

* Pursuant to Code § 17.1

- 413, t his opinion is not designated for publication. UNPUBLISHED- 2

-

review de novo the ultimate questions of reasonable suspicion and probable cause, we ‘review findings of historical fact only for clear error and

. . . give due weight to inferences drawn from those facts by r esident judges and local law enforcement officers.’” Long v. Commonwealth , 72
Va. App. 700, 712 (2021) (footnote omitted) (quoting Ornelas v. United States , 517 U.S. 690, 699 (1996) ). On the morning of January 28, 2021, Officer Cashdollar responded to a call regarding a stolen, red 2014 Nissan Frontier around Atlantic Ave nue
. At 3:30 a

. m
. , at the intersection of 50 th
Street and Atlantic Ave nue , a red 2014 Nissan Frontier was spotted followed closely by a silver Chrysler van. Officer Cashdollar arrived shortly thereafter and followed the procession of vehicles. The silver Chrysler van mirrored all the lane changes of the Nissan Frontier and appeared to be following it. When both vehicles pulled into a 7

- Eleven, parking side by side, Officer Curry
initi ated a traffic stop. Officer Cashdollar assisted Officer Curry with the traffic stop. Officer Curry commanded the woman driving the red 2014 Nissan Frontier to exit the vehicle and slowly walk back towards him. Almost immediately, the driver said to the officers, “Sir, we aren’t the ones who took the vehicle. We were just bringing it back.” While Officer
Cashdollar detain ed her , she indicate d that she wa s armed. After a quick pat down, Officer Cashdollar passe d her to another officer and continue d to assist Officer Curry. Next, Officer Curry instructed Drier to exit the silver Chrysler van. Exiting the vehicle, Drier indicated that he “knew about the vehicle” and had the owner of the red 2014 Nissan Frontier on the phone. Assisting Officer Curry, Officer Cashdollar instructed Drier to slowly walk back
toward him and placed him in handcuffs

. Officer Cashdollar then asked Drier if he was armed to which he responded that he had a knife. Du ring a pat down of Drier, Officer Cashdollar removed
the knife ; however, he continued to feel a rectangular object in one of the pockets. Drier then admitted that he had another pocketknife in his back pocket. Officer Cashdollar, believing it to be- 3

-

anoth er knife, removed the rectangular object for his safety and to ensure that it was not another knife. The object was in fact a tightly wrapped Crown Royal bag contain ing a pipe , which appeared

to contain what Officer Cashdollar believe d to be methamphetami ne residue. Before trial, Drier filed a motion to suppress the evidence obtained during the Terry 1 stop on January 28, 2021. The trial court took the matter under advisement and , a fter hearing further argument , found that the statements that both individ uals were armed justified the pat down. T he
trial court then denied Drier ’s motion to suppress

. Drier conditionally pled guilty to the charges, reserving his right to appeal the trial court’s denial of his motion to suppress

. This appeal follows.
ANALYSIS
Drier argues that the pat

- down search of his person violated the Fourth Amendment because
the officers did not have a reasonable, articulable suspicion that he was armed and presently dangerous

. 2 We disagree and affirm the t rial c ourt’s denial of Drier’s motion to suppress. “The Fourth Amendment protects people from unreasonable searches and seizures.”
Williams v. Commonwealth , 71 Va. App. 462, 476 (2020). “An officer may not automatically conduct a search for weapons during the course of a Terry stop.” Baker v. Commonwealth , 57
Va. App. 181, 189 (2010) ; see Terry v. Ohio , 392 U.S. 1, 27 (1968)

. However, a n officer “ may frisk the driver and passengers for weapons if he develops reasonable suspicion during the traffic

or Terry stop to believe the particular person to be frisked is armed and dangerous. ” McCain v.
Commonwealth , 275 Va. 546, 554 (2008)

. “Such reasonable, individualized suspicion is required e ven in high crime areas, where any given individual may be armed.” Baker , 57 Va. App. a t 189 (quoting Maryland v. Buie , 494 U.S. 325, 334 n.2 (1990)).

1 Terry v. Ohio , 392 U.S. 1, 30 (196 8 ).

2 Although Drier argued on brief that there was no evidence linking him to the stolen vehicle, he conceded in oral argument that this position was unfounded.- 4

-

“An officer may lawfully pat

- down a suspect only when the officer can ‘point to particular facts from which he reasonably inferred that the individual was armed and dangerous.’” Id. (quoting Moore v. Commonwealth , 12 Va. App. 404, 406 (1991)). The relevant circumstances in this analysis include: “the characteristics of the area surrounding the stop, the time of the 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 dete c tion of crime.” Id. at 190 (quoting McCain , 275 Va. at 5 54). Here, the t rial c ourt noted: (1) the stop took place at 3:30 a

. m
. ; (2) it was snowing; (3) the nature of the “high crime area”; (4) the offense being investigated involved a stolen vehicle; and (5) the experience of both officers. T he t rial c ourt ag reed that, under the totality of the circumstances, these facts alone would not be sufficient for the pat down. However, the t rial

c ourt found compelling that the woman driving the stolen red Nissan Frontier had indicated that she was armed prior to Drier ’s pat down. C oupled with Drier’s admission , before the pat down began, that he was armed , the t rial c ourt found Officer Cashdollar had reasonable suspicion for the pat down. We agree with the t rial c ourt that, under the totality of the circumstances , Officer Cashdollar reasonably inferred that Drier may be armed and was justified in performing the pat down to ensure his safety. See Baker , 57 Va. App. at 189

- 90.
CONCLUSION
The facts reveal that Drier was not subjected to an unreasonable search and seizure. The

t rial c ourt did not err in denying Drier ’s motion to suppress. Accordingly, we affirm the t rial

c ourt’s decision

. Affirmed.