COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Elder, 

 Annunziata, Bumgardner, Frank, Humphreys, Clements, 

 Agee, Felton and Kelsey 

Argued at Richmond, Virginia 

BENJAMIN WAYNE McCRACKEN 

 OPINION BY 

v. Record No. 2912-00-3 JUDGE RUDOLPH BUMGARDNER, III 

 NOVEMBER 26, 2002 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Nicholas E. Persin, Judge 

 John B. Coleman (Scyphers & Austin, P.C., on 

brief), for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 A jury convicted Benjamin Wayne McCracken of possession of 

marijuana and two counts of assault and battery of a law 

enforcement officer. He contends the trial court erroneously 

admitted evidence obtained when a deputy sheriff illegally 

entered a home, frisked the defendant, and found marijuana in 

his pocket. He maintains he lawfully used reasonable force to 

resist his arrest because it was unlawful. 

A panel of this court held that the trial court erred in 

admitting unlawfully seized marijuana and reversed the 

conviction of possession of marijuana. The panel held the 
defendant was not entitled to resist his arrest and affirmed the 

two convictions for assault and battery of a law enforcement 

officer. We granted a petition for rehearing en banc and stayed 

the mandate of the panel decision. Upon rehearing en banc, we 

affirm the trial court. 

 On appeal of the denial of a motion to suppress, we view 

the evidence in the light most favorable to the Commonwealth. 

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. 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 legal standards such as reasonable 

suspicion to the particular facts of the case. See Ornelas v. 

United States, 517 U.S. 690, 699 (1996). 

 The defendant and Teresa Fields had lived together for 

almost three years in a house owned by Fields. During an 

argument, Fields called the 911 emergency dispatcher to have the 

defendant removed from her residence. When Deputies Dollar and 

Sexton responded to the "domestic disturbance" the couple were 

still arguing, but the situation had not escalated to violence. 

The defendant agreed to move out of Fields' house, and the 

deputies remained for forty-five minutes and helped him remove 

his belongings. The defendant went to stay with his mother. 

 - 2 - 
 After the defendant arrived there, he telephoned Fields, 

and the two renewed their argument. When that call ended, the 

defendant's mother telephoned Fields and warned her that the 

defendant was going to her house. Fields called the 911 

emergency dispatcher a second time and reported the defendant 

was returning. The dispatcher instructed her to lock her doors 

and dispatched Deputies Dollar and Sexton to the "domestic 

call." 

 When Deputy Dollar arrived at Fields' house, the back door 

was locked, neighbors were in the front yard screaming, and the 

deputy heard Fields and the defendant arguing inside the house. 

The front door was partially open, but the screen door was 

closed. The deputy drew his weapon, pushed open the screen 

door, and entered. 

 The defendant and Fields were standing four to six feet 

apart. The deputy saw nothing in their hands. He holstered his 

weapon, but as he looked over the defendant, he noticed a bulge 

in his right front pants pocket. He asked the defendant to 

place his hands on the wall so he could make sure the defendant 

did not have any weapons. The defendant did not comply and kept 

moving around the room despite repeated requests to put his 

hands on the wall. Finally, the defendant stopped and put his 

hands on the back of a love seat. 

 While the defendant leaned against the love seat, the 

deputy patted the defendant's front right pocket and felt a 

 - 3 - 
hard, rigid object in it. The deputy reached into the pocket 

for the hard object, but first uncovered a plastic baggie 

containing plant matter, which had been on top of the hard 

object. The deputy believed the bag contained marijuana. He 

told the defendant he was under arrest for possession of it and 

instructed the defendant to put his hands behind his back. 

Again the defendant disregarded instructions. He "kept easing 

away," and then stated he wanted his Skoal and his gun. The 

defendant started toward the kitchen at a fast pace. 

 Deputy Dollar told the defendant to stop and grabbed hold 

of him. The defendant resisted; the two began to scuffle, and 

then to fight. During the altercation the defendant kicked the 

deputy, struck him in the face, and began choking him with a 

headlock hold. At that point, Deputy Sexton arrived. While he 

tried to break the defendant's hold on Dollar, the defendant 

elbowed Sexton in the ribs. Eventually, the two deputies 

subdued the defendant and handcuffed him.1 

 Before opening the screen door, the deputy had probable 

cause to believe the defendant was trespassing, Code § 18.2-119.2 

 1

 Later searches revealed a rifle behind the bedroom door, 

five feet from the site of the struggle, and a folding knife in 

the defendant's right front pants pocket. 

2

 Code § 18.2-119 provides: 

 - 4 - 

If any person without authority of law goes 

upon or remains upon the lands, buildings or 

premises of another . . . after having been 

forbidden to do so, either orally or in 
The deputies responded to the initial domestic disturbance call 

because Teresa Fields wanted the defendant removed from her 

house. Fields was the owner of the residence, and she could 

properly revoke the defendant's permission to be on the 

property. He left voluntarily the first time, but ninety 

minutes later he returned to her house causing Fields to place a 

second call to the 911 emergency dispatcher. When the deputy 

responded, neighbors were screaming, and the deputy heard the 

defendant inside arguing with Fields. "In determining whether 

probable cause exists courts will test what the totality of the 

circumstances meant to police officers trained in analyzing the 

observed conduct for purposes of crime control." Hollis v. 

Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976). 

 As a trespasser, defendant had no justifiable expectation 

of privacy in Fields' home and therefore no standing to contest 

the entry of the house. See Woodson v. Commonwealth, 25 

Va. App. 621, 626, 491 S.E.2d 743, 745 (1997) ("We hold that 

appellant was not lawfully on the premises and that, as a 

trespasser, he lacks the privacy interest necessary to claim a 

Fourth Amendment violation.").3

 

writing, by the owner, lessee, custodian or 

other person lawfully in charge thereof 

. . . he shall be guilty of a Class 1 

misdemeanor. 

 - 5 - 

3

 The deputy was answering a complaint, a call for 

assistance from the homeowner, and he was entering the property 

of the complainant, not of the defendant. The deputy was not 
 The deputy entered armed with probable cause to believe the 

defendant was trespassing. "If an officer has probable cause to 

believe that an individual has committed even a very minor 

criminal offense in his presence, he may, without violating the 

Fourth Amendment, arrest the offender." Atwater v. City of Lago 

Vista, 532 U.S. 318, 354 (2001). When an officer has probable 

cause to arrest, he may conduct a search prior to the arrest. 

Cardwell v. Lewis, 417 U.S. 583, 595 (1974). 

 The argument between Fields and the defendant could easily 

have escalated if the deputy had not acted immediately upon 

noticing the bulge in the defendant's pocket. Domestic 

disturbances have a low flash point, and "violence may be 

lurking and explode with little warning." Fletcher v. Town of 

Clinton, 196 F.3d 41, 50 (1st Cir. 1999).4 

 

making a warrantless arrest of the defendant in his home as in 

Payton v. New York, 445 U.S. 573, 574 (1980). Nor was the 

homeowner prosecuted with evidence seized in the home while 

executing an arrest warrant for someone else as in Steagald v. 

United States, 451 U.S. 204, 205 (1981). 

 - 6 - 

4

 In recognition of the difficulty of protecting against 

domestic violence, the General Assembly increased the duties of 

law-enforcement officers when responding to such incidents. See

Code § 19.2-81.3. Police are entitled to arrest without a 

warrant though the violation does not occur in their presence. 

They must arrest "the primary physical aggressor" if they 

develop probable cause unless special circumstances exist. The 

police must make a written report of any incident in which they 

have probable cause that "family abuse" occurred and written 

explanation of the special circumstances if they do not arrest. 

Finally, if the officer has probable cause to believe that a 

danger of acts of family abuse exists, he "shall seek an 

emergency protective order . . . ." "Family abuse" not only 

includes violence and force resulting in bodily injury, but it 
 After initially resisting, the defendant placed his hands 

on the love seat and permitted the officer to pat down the 

defendant's pants pocket. At that point, the deputy was 

lawfully taking "such steps as [were] reasonably necessary to 

protect [his and others'] personal safety . . . ." United 

States v. Hensley, 469 U.S. 221, 235 (1985). The marijuana 

found in the course of that lawful search was properly admitted 

in evidence. 

 While a person is entitled to use reasonable force to 

resist an unlawful arrest, he is not entitled to resist a lawful 

arrest. Brown v. Commonwealth, 27 Va. App. 111, 116-17, 497 

S.E.2d 527, 529-30 (1998). The deputies arrested on probable 

cause to believe the defendant was trespassing and possessed 

marijuana, thus the defendant had no right to resist this lawful 

arrest. 

 A lawful arrest, when made with unlawful force, may be 

resisted. Palmer v. Commonwealth, 143 Va. 592, 602-03, 130 S.E. 

398, 401 (1925); Foote v. Commonwealth, 11 Va. App. 61, 66, 396 

S.E.2d 851, 856 (1990). "[A]n arrest utilizing excessive force 

is a battery because that touching is not justified or excused 

and therefore is unlawful." Gnadt v. Commonwealth, 27 Va. App. 

148, 151, 497 S.E.2d 887, 888 (1998). The officers in this case 

 

also includes a threat that places one in reasonable 

apprehension of bodily injury. See Code § 16.1-228. 

 - 7 - 
used reasonable force to subdue the defendant when he refused to 

submit. The deputies did not use excessive force by ratcheting 

the force employed when nothing less brought the defendant under 

control. The defendant was not entitled to resist his lawful 

arrest made with lawful force. 

 We conclude the conduct of the deputy sheriffs in 

responding to this series of events was reasonable under the 

totality of the circumstances. Accordingly, we affirm. 

 Affirmed.

 - 8 - 
Benton, J., dissenting. 

 I. 

 The evidence proved that Benjamin McCracken and Teresa 

Fields lived together in the house for nearly three years. 

Fields testified that on April 8, 2000, McCracken was asleep 

when she began cleaning the house. After the cleaning noise 

awakened McCracken, Fields and McCracken argued. Fields 

testified that she "had an excruciating headache, . . . was ill, 

irritable." When she became tired of arguing, she called the 

police dispatcher, who sent two officers to the residence at 

midday in response to Fields' telephone call. One of the 

officers testified that they responded to a complaint of "verbal 

arguing." No evidence indicates Fields told the dispatcher or 

the officers she wanted the officers to remove McCracken from 

the house. 

 When the police arrived, McCracken was putting various 

personal possessions in his car. Fields and McCracken explained 

that "they'd had [a] verbal argument and that [there] had been 

no assault." When asked if he was able to calm the situation, 

the officer responded, "It seemed to have been not very 

escalated." The officers remained while McCracken gathered some 

of his personal possessions and put them in his car. One 

officer described the situation as "very peaceful" and said they 

helped McCracken load some of his possessions. The other 

officer testified that McCracken was "very friendly, [that 

 - 9 - 
McCracken] agreed to leave, and [that] there were no problems 

whatsoever." Fields testified that she and McCracken declined 

"to fill out any type of papers to keep each other away" and 

said "there was no purpose for that." 

 McCracken went to his mother's residence with some of his 

personal possessions and later telephoned Fields. During that 

conversation, McCracken and Fields were both agitated. 

McCracken's mother later telephoned Fields to inform her that 

McCracken was returning to collect more of his personal 

possessions. Before McCracken arrived at the residence, Fields 

telephoned the police dispatcher and requested that the officers 

return to her home. Fields testified that she "overreacted" and 

telephoned for the officers to return because she had to go to 

work. She expected to be late arriving at work and did not want 

to be further delayed by an argument with McCracken. She 

testified that when McCracken arrived he told her "he was there 

to pick up some of his belongings." 

 The officers returned to the residence about an hour and a 

half after they had left the residence. The first officer to 

arrive testified that before entering the residence, he heard 

neighbors hollering something to him. Fields' sister testified 

that, when she saw the officer having difficulty opening the 

screen door, she called to him that "the front door drags." The 

officer testified that he heard Fields and McCracken "verbally 

arguing back and forth when he walked up on the porch." Fields 

 - 10 - 
testified, however, that she was talking to McCracken and that 

they were not arguing. The officer drew his weapon and walked 

into the house without knocking. 

 II. 

 McCracken contends the officers had neither probable cause 

to believe a crime was being committed nor exigent circumstances 

to justify their entry. The Commonwealth responds the "officers 

had probable cause at the time of their warrantless entry to 

believe that cognizable exigent circumstances were present" 

because of a "domestic" dispute. 

 The United States Supreme Court has held that, "absent 

probable cause and exigent circumstances, warrantless [entries 

and] arrests in the home are prohibited by the Fourth 

Amendment." Welsh v. Wisconsin, 466 U.S. 740, 741 (1984); 

Payton v. New York, 445 U.S. 573, 590 (1980). "[W]arrantless 

entries into dwellings, followed by searches, seizures, and 

arrests therein . . . are presumed to be unreasonable, in Fourth 

Amendment terms, casting upon the police a heavy burden of 

proving justification by exigent circumstances." Verez v. 

Commonwealth, 230 Va. 405, 410, 337 S.E.2d 749, 752-53 (1985); 

Welsh, 446 U.S. at 750. Furthermore, "[e]xigent circumstances 

justify a warrantless entry . . . only when the police have 

probable cause to obtain a search warrant." Alexander v. 

Commonwealth, 19 Va. App. 671, 674, 454 S.E.2d 39, 41 (1995). 

 - 11 - 
 The trial judge found that the officers acted reasonably in 

entering the residence and denied the motion to suppress. His 

findings included the following: 

There is no question or at least I haven't 

heard any evidence that would cause the 

Court to believe that the first call was not 

made by her complaining about the conduct of 

[McCracken]. The officers responded. When 

they got there, evidently a reasonable 

inference would be that . . . Fields and 

[McCracken] had come to some sort of 

agreement. The officers testified that 

there was no fighting or arguing, that he 

was in the process of removing his property. 

He was cooperative, he was loading his 

vehicle, his personal items, some of his 

stereo equipment. The officers even 

assisted him. So there is no evidence of 

any ill feeling or ill will from the first 

call. But the fact remains that . . . 

Fields called for help the first time. . . . 

Shortly thereafter, an hour or hour and a 

half later, a second call comes in. And the 

evidence is unrebutted that [McCracken] is 

back on her property where he was living 

with her. And the Jury has heard evidence 

that there was screaming on the outside, one 

of the officers heard it, the other one 

didn't. Officer Sexton says he didn't. And 

when they go inside of the house, the Court 

is of the opinion that that was reasonable. 

I mean, here you had a second call where the 

officers thought [McCracken] was leaving and 

was cooperative and left. Now he's back on 

the scene. And the owner of the property is 

calling the officers again for assistance. 

They respond. They come in, they observe, 

they know there's been prior problems. 

 We have held that a call to the police dispatcher for 

assistance does not, without more, give rise to probable cause 

to believe a crime is occurring. Id. at 674-75, 454 S.E.2d at 

41. The evidence proved that when the police arrived in 

 - 12 - 
response to the first call from Fields, McCracken had made no 

threats. Indeed, Fields had not even expressed fear of 

McCracken when she first called the police dispatcher. She 

testified that when the dispatcher specifically "asked [her] if 

[McCracken] was hitting [her] or being physical," she "told him 

no, that it was just verbal." Although McCracken and Fields had 

had an argument, the officers testified that matters were 

peaceful and non-threatening. 

 The evidence also proved that when Fields called the police 

on the second occasion, McCracken had not arrived. Fields knew 

the police dispatcher and told him "that [her problem with 

McCracken] was just verbal." She testified that she reported no 

crime, that she expected no trouble from McCracken, and that she 

wanted the officers there because she had to go to work and did 

not want to be delayed by an argument with McCracken. Thus, she 

had not given the police dispatcher or the officers any basis to 

believe McCracken would do anything other than continue to 

gather his property. "Probable cause for police officers to 

enter a person's [residence] must be based on more than 

speculation, suspicion, or surmise that a crime might be in 

progress." Id. at 674, 454 S.E.2d at 41. The officers could 

not reasonably infer from either their first visit to the house 

or the call to return to the house that when McCracken returned 

to remove more of his property he either posed any threat to 

Fields or would commit a crime. Simply put, this evidence 

 - 13 - 
failed to prove the officer had probable cause to believe a 

crime had been or was being committed when he made the 

warrantless entry into the home. 

 Although the majority contends that McCracken had committed 

a trespass and had no expectation of privacy in the residence, 

no evidence supports that hypothesis. The Commonwealth never 

suggested at trial that McCracken committed a trespass or lacked 

standing. Moreover, the trial judge made no finding that 

McCracken committed a trespass or lacked standing. Indeed, 

prior to this hearing en banc, the Commonwealth never argued 

trespass or the lack of standing. I substantially agree, 

therefore, with the discussion in Part I(A) of Judge Elder's 

concurring and dissenting opinion that we have no basis to 

consider, in the first instance, these issues on appeal. 

 In addition, the evidence proved that when the prosecutor 

asked Fields, "who actually owns the home where this incident 

took place?," Fields responded, "My father. He give it to me 

and my [minor] daughter." Although the evidence did not 

indicate whether Fields and McCracken paid rent to Fields' 

father, the evidence also did not prove McCracken had been 

barred by anyone from entering the house. Significantly, Fields 

did not testify that she had barred McCracken from returning to 

the house. Instead, she testified she told the dispatcher, whom 

she knew, that McCracken had never physically abused her, and 

she further testified she wanted the police there solely to 

 - 14 - 
prevent another argument which would delay her departure to 

work. Indeed, when McCracken initially left with some of his 

possessions, Fields told the officers it was not necessary for 

her "to fill out any type of papers to keep each other away from 

each other." The trial judge specifically found that Fields and 

McCracken "had come to some sort of agreement" before the 

officers initially arrived and before McCracken went to his 

mother's residence. Thus, the evidence proved that when 

McCracken returned to the house in which he had lived for three 

years, he had not been barred from the premises, and he used his 

key to enter the house to gather his possessions. The 

assertions of trespass and lack of standing at this stage of the 

proceedings are an after the fact rationale unfounded by the 

evidence. 

 The principle is well established that "no amount of 

probable cause can justify a warrantless [entry into a home] 

. . . absent 'exigent circumstances.'" Coolidge v. New 

Hampshire, 403 U.S. 443, 468 (1971); Payton, 445 U.S. at 590. 

"Before agents of the government may invade the sanctity of the 

home, the burden is on the government to demonstrate exigent 

circumstances that overcome the presumption of unreasonableness 

that attaches to all warrantless home entries." Welsh, 466 U.S. 

at 750. The evidence proved that McCracken had never physically 

abused Fields and that she had no fear of him. Moreover, Fields 

did not tell the police dispatcher McCracken had threatened her. 

 - 15 - 
She testified she has known the dispatcher "for years" and told 

the dispatcher her only concern was the arguments. She merely 

wanted someone there to prevent another argument. Although the 

trial judge could believe the officer's testimony that he heard 

argument and disbelieve Fields' testimony that she and McCracken 

were not arguing, the mere occurrence of an argument is not 

indicative of a threat to life or serious injury. The officer 

had no other basis to believe an emergency existed. Indeed, the 

officers earlier had witnessed McCracken's conduct at the home 

and testified that the situation was "peaceful." 

 As in Shannon v. Commonwealth, 18 Va. App. 31, 34, 441 

S.E.2d 225, 226, aff'd on reh'g en banc, 19 Va. App. 145, 449 

S.E.2d 584 (1994), and Alexander, this evidence contains no 

basis upon which the police officers could have concluded that 

an emergency existed. Thus, the Commonwealth failed to meet its 

"heavy burden" of proving exigent circumstances existed 

justifying the warrantless entry. Alexander, 19 Va. App. at 

674, 454 S.E.2d at 41. 

 III. 

 "At the very core [of the Fourth Amendment] stands the 

right of a [person] to retreat into his [or her] own home and 

there be free from unreasonable governmental intrusion." 

Silverman v. United States, 365 U.S. 505, 511 (1961). "It is 

axiomatic that the 'physical entry of the home is the chief evil 

against which the wording of the Fourth Amendment is directed.'" 

 - 16 - 
Welsh, 466 U.S. at 748 (citation omitted). "In terms that apply 

equally to seizures of property and to seizures of persons, the 

Fourth Amendment has drawn a firm line at the entrance to the 

house." Payton, 445 U.S. at 590. Thus, the Supreme Court has 

reiterated that it "held in Payton . . . that a suspect should 

not be arrested in his house without an arrest warrant, even 

though there is probable cause to arrest him." Minnesota v. 

Olson, 495 U.S. 91, 95 (1990). 

 Unlike in United States v. Moore, 483 F.2d 1361, 1364 (9th 

Cir. 1973), where "[t]he warrantless arrest was . . . lawful, in 

itself," id. at 1364, here it was not. The officer's 

warrantless entry to McCracken's residence presumptively was 

constitutionally unlawful, Payton, 445 U.S. at 586, and could 

not support an arrest even upon probable cause. See Olson and 

Payton. See also Horton v. California, 496 U.S. 128, 137 n.7 

(1990). The principle is well established and long standing 

that an unlawful, warrantless entry by a police officer into a 

residence renders void the power to arrest even if probable 

cause arises upon a discovery inside the residence after the 

unlawful entry. Johnson v. United States, 333 U.S. 10, 15-17 

(1948); Welsh, 466 U.S. at 748-50; Payton, 445 U.S. at 588-90. 

See also Jefferson v. Commonwealth, 27 Va. App. 1, 18, 497 

S.E.2d 474, 482-83 (1998) (holding that the "arrest of appellant 

. . . executed after the officer entered the curtilage of 

appellant's home without a warrant . . . violated the Fourth 

 - 17 - 
Amendment"). The purpose of these decisions, holding the 

arrests to be void, is "to protect [the] home from entry." 

Olson, 495 U.S. at 95. 

An officer gaining access to private living 

quarters under color of his office and of 

the law which he personifies must then have 

some valid basis in law for the intrusion. 

Any other rule would undermine "the right of 

the people to be secure in their persons, 

houses, papers, and effects," and would 

obliterate one of the most fundamental 

distinctions between our form of government, 

where officers are under the law, and the 

police-state where they are the law. 

Johnson, 333 U.S. at 17 (footnote omitted). 

 "It has long been held in Virginia that where an officer 

attempts an unlawful arrest, the officer is an aggressor which 

gives the arrestee the right to use self-defense to resist so 

long as the force used is reasonable." Brown v. Commonwealth, 

27 Va. App. 111, 116-17, 497 S.E.2d 527, 530 (1998). This 

principle of law treats the unlawful arrest as an unauthorized 

touching and, thus, a battery against the attempted arrestee. 

The Supreme Court, therefore, has held that where an officer 

attempts an unlawful arrest, the arrestee "could resist with 

such reasonable force as was necessary to repel that being 

exercised by the officer in that undertaking." Broaddus v. 

Standard Drug Co., 211 Va. 645, 652, 179 S.E.2d 497, 503 (1971). 

Thus, for example, in further contrast to Moore, where the Ninth 

Circuit indicated an arrestee may only resist unlawful arrests 

that are the result of "bad faith, unreasonable force, or 

 - 18 - 
provocative conduct on the part of the arresting officer," 

Moore, 483 F.2d at 1365, Virginia decisions hold that even if a 

police officer acts in "good faith" an arrestee may still resist 

an unlawful arrest. Brown, 27 Va. App. at 118, 497 S.E.2d at 

530. 

 The evidence proved that McCracken initially resisted being 

searched and then attempted to maneuver his way around the 

officer after the officer sought to arrest him. Because the 

attempt to search and arrest McCracken was made after the 

officer had unlawfully entered the home without a warrant, 

McCracken had a right to use reasonable force to resist any of 

the officer's conduct. The encounter escalated to a physical 

altercation only when the officer jumped onto McCracken's back.

 The events that gave rise to the search and arrest all 

occurred within the home, after the officers had unlawfully 

entered the home and upon the officer's discovery of evidence 

within the home during that unlawful entry. This is precisely 

the circumstance the Supreme Court's decision in Payton barred 

by holding that "'physical entry of the home is the chief evil 

against which the wording of the Fourth Amendment is directed.'" 

445 U.S. at 585 (citation omitted). The rule in Payton was 

derived from the "overriding respect for the sanctity of the 

home that has been embedded in our traditions since the origins 

of the Republic." Id. at 601. By drawing a line at the 

entrance to a home, the Fourth Amendment protects the physical 

 - 19 - 
integrity of the home. As the Court noted in Johnson, "officers 

. . . thrust[ing] themselves into a home is . . . a grave 

concern not only to the individual but to a society which 

chooses to dwell in reasonable security and freedom from 

surveillance." 333 U.S. at 14. Based on the unlawful entry, 

McCracken was not unreasonable in his attempt to resist the 

unlawful arrest and did not use excessive force in resisting. 

 IV. 

 For these reasons, I would hold that the officer's 

warrantless entry into the residence violated the Fourth 

Amendment. The officer's unlawful entry negated his authority 

to search McCracken and make an arrest for events occurring 

inside the home.5 Therefore, I would reverse all the convictions 

and dismiss the indictments. See Alexander, 19 Va. App. at 675, 

454 S.E.2d at 41. 

 

 - 20 - 

5

 Although I would hold that the officer's warrantless entry 

was presumptively unlawful and negated his power to arrest, I 

agree with the portion of Part I(B) of Judge Elder's concurring 

and dissenting opinion which indicates that the circumstances 

did not provide the officer with a reasonable, articulable 

suspicion that McCracken was armed and dangerous. "An officer 

may not, simply by observing some item causing a 'bulge' in 

one's clothing, conduct a general frisk where the nature of the 

bulge or the surrounding circumstances do not reasonably support 

the conclusion that . . . the person is armed and dangerous." 

Stanley v. Commonwealth, 16 Va. App. 873, 877, 433 S.E.2d 512, 

515 (1993). As we noted in Stanley, these facts would 

impermissibly sanction an officer "in patting down anyone who 

happened to be carrying a checkbook or wallet in his pants 

pocket." 16 Va. App. at 877, 433 S.E.2d at 515. 
Elder, J., concurring, in part, in the judgment and dissenting, 

 in part. 

 For the reasons that follow, I concur in the majority's 

affirmance of appellant's two convictions for assault and 

battery on a law enforcement officer but dissent from its 

affirmance of his conviction for marijuana possession. I 

substantially concur in the majority's recitation of the 

relevant facts. 

I. 

A. 

TRESPASS 

 The majority concludes the search of appellant was valid as 

incident to arrest because Deputy Dollar had probable cause to 

arrest for trespass before he conducted the search. I recognize 

the principle that an appellate court may affirm the judgment of 

the trial court when it has reached the right result for the 

wrong reason. See, e.g., Driscoll v. Commonwealth, 14 Va. App. 

449, 452, 417 S.E.2d 312, 313 (1992). However, this principle 

requires that both "the correct reason and its factual basis 

were presented at trial." McLellan v. Commonwealth, 37 Va. App. 

144, 155, 554 S.E.2d 699, 704 (2001). Because the existence of 

probable cause to arrest for trespass or any other crime was not 

raised at trial as a basis for justifying Deputy Dollar's search 

of appellant and because no challenge was made to appellant's 

standing to contest Deputy Dollar's entry, I would hold that 

 - 21 - 
neither of these grounds may serve as the basis for this Court's 

affirmance of appellant's convictions. 

 In the trial court, the Commonwealth argued that the deputy 

had a right 

to do a frisk search . . . to protect 

himself because . . . he didn't know what he 

was looking at coming in on that second 

call. And once he found an object in the 

pocket, he had the right to take that object 

out and that turned out to be the marijuana. 

It's a valid frisk, it's a valid arrest 

. . . . 

Appellant argued the police lacked probable cause to enter and 

also lacked the articulable suspicion necessary to justify a 

weapons frisk. The trial court ruled that, based on the events 

occurring during the deputies' first and second trips to the 

residence, they had the right to "do[] a pat down to ensure 

their own safety." The court expressly found that Teresa Fields 

was the owner of the house, a subsidiary factual finding 

relevant to the issue of whether a trespass occurred. However, 

neither party mentioned whether appellant was a trespasser or 

had standing to contest Deputy Dollar's entry of the residence, 

and the trial court gave no indication that it considered these 

issues or made any of the additional factual findings critical 

to their resolution. 

 Thus, I would hold that neither the existence of probable 

cause to arrest appellant for trespassing nor his alleged lack 

of standing to contest Deputy Dollar's entry of the residence, 

 - 22 - 
provides a valid basis for affirming appellant's convictions and 

would consider only the arguments advanced in the trial court. 

Based on these arguments, for the reasons that follow, I would 

reverse appellant's conviction for marijuana possession and 

affirm his convictions for assault and battery on a law 

enforcement officer. 

B. 

WEAPONS FRISK 

 In order for an officer to conduct a weapons frisk, two 

conditions must exist. First, the officer must rightly be in 

the presence of the party frisked so as to be endangered if the 

person is armed. See, e.g., 4 Wayne R. LaFave, Search and 

Seizure § 9.5, at 246 (3d ed. 1996). Second, the officer must 

be able to point to "'specific and articulable facts'" "which 

reasonably lead[] him to conclude, in light of his experience, 

. . . that the suspect 'may be armed and presently dangerous.'" 

Lansdown v. Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110 

(1983) (quoting Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S. Ct. 

1868, 1880, 1884, 20 L. Ed. 2d 889 (1968)). 

 In assessing whether a particular person may be armed and 

dangerous, an officer may consider "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 detection of crime." Christian 

 - 23 - 
v. Commonwealth, 33 Va. App. 704, 714, 536 S.E.2d 477, 482 

(2000) (en banc) (footnote omitted). "An officer may not, 

simply by observing some item causing a 'bulge' in one's 

clothing, conduct a general frisk where the nature of the bulge 

or the surrounding circumstances do not reasonably support the 

conclusion that . . . the person is armed and dangerous." 

Stanley v. Commonwealth, 16 Va. App. 873, 877, 433 S.E.2d 512, 

515 (1993); see also United States v. Wilson, 953 F.2d 116, 125 

(4th Cir. 1991) (holding that, absent additional evidence, 

seeing "a bulge [in clothing of person at airport] is not the 

sort of observation that has any significance"). Compare

Stanley, 16 Va. App. at 876, 433 S.E.2d at 514 (holding the 

Fourth Amendment "does not legitimize a patdown search of 

someone stopped for a routine traffic offense simply because he 

is carrying an item the size and configuration of a wallet or 

checkbook in his front pants pocket"), with Troncoso v. 

Commonwealth, 12 Va. App. 942, 945, 407 S.E.2d 349, 350-51 

(1991) (holding that if bulge observed in stomach area of driver 

during routine traffic stop is accompanied by fidgeting, 

nervousness, and effort to conceal bulge, officer's belief that 

subject may be armed and dangerous is reasonable). 

 Here, Deputy Dollar responded to Fields' second 911 call 

and entered her residence through an unlocked door only after he 

encountered neighbors in the front yard yelling and heard 

arguing inside the residence. Thus, Deputy Dollar was rightly 

 - 24 - 
in appellant's presence. Nevertheless, the evidence did not 

provide Deputy Dollar with reasonable, articulable suspicion to 

conclude that the object in appellant's pocket may have been a 

weapon. Although Deputy Dollar was responding to a 911 

"domestic call" at Fields' residence for the second time that 

day, the first call involved only "verbal arguing," was "not 

very escalated," and resolved peacefully with no indication that 

either party possessed a weapon or was predisposed to use 

violence toward the other or toward the deputies. When Deputy 

Dollar returned the second time, neighbors were in the front 

yard yelling, and Dollar heard the parties inside "verbally 

arguing back and forth" while he stood on the front porch, but 

Dollar did not testify that he overheard either party threaten 

the other or that he heard anything indicating physical violence 

or abuse. 

 When Dollar entered unannounced, he immediately saw Fields 

and appellant standing at least four feet apart, he noticed 

nothing unusual about Fields' appearance, and he saw nothing in 

either party's hands. Although he noticed appellant's right 

front pocket was "bulging" and concluded that appellant had 

"something" inside his pocket, Dollar articulated no specific 

basis for believing that "something" might be a weapon. Before 

Deputy Dollar attempted to frisk appellant for weapons, 

appellant engaged in no additional behavior and made no 

 - 25 - 
statements tending to indicate that he was armed and presently 

posed a danger to Fields or Deputy Dollar. 

Thus, I would conclude Deputy Dollar lacked reasonable 

articulable suspicion to believe appellant was both armed and 

presently dangerous when Dollar told appellant he intended to 

frisk appellant for weapons. I recognize that domestic disputes 

often are fraught with danger for both their participants and 

the law enforcement officers trying to diffuse them. See, e.g., 

Fletcher v. Town of Clinton, 196 F.3d 41, 50 (1st Cir. 1999) 

(noting that in domestic disputes, "violence may be lurking and 

explode with little warning"). Nevertheless, I am unwilling to 

hold that an officer responding to a verbal domestic dispute may 

frisk a party to the dispute solely because that party has an 

unidentified "bulge" in his pocket. Accordingly, I would hold 

that Deputy Dollar's frisk of appellant and search of his pocket 

were unreasonable and that the fruits of that search should have 

been suppressed. Because no evidence other than the illegally 

seized marijuana supported appellant's conviction for marijuana 

possession, I would reverse that conviction and dismiss the 

underlying charge. 

C. 

ASSAULT AND BATTERY ON A LAW ENFORCEMENT OFFICER 

 "An unlawful arrest or an arrest utilizing excessive force 

is a battery because that touching is not justified or excused 

and therefore is unlawful." Gnadt v. Commonwealth, 27 Va. App. 

 - 26 - 
148, 151, 497 S.E.2d 887, 888 (1998). In either case, the 

arrestee may use reasonable force to resist the arrest. See

Palmer v. Commonwealth, 143 Va. 592, 602-03, 130 S.E. 398, 401 

(1925); Foote v. Commonwealth, 11 Va. App. 61, 69, 396 S.E.2d 

851, 856 (1990). Here, I would hold appellant was not entitled 

to use reasonable force to resist his arrest because the arrest 

was not unlawful in the sense required to permit him to resist 

the arrest, and I concur in the majority's conclusion that the 

officers used no more force than was necessary to effect the 

arrest. 

 "In Virginia, . . . [t]he lawfulness of an attempted arrest 

[for purposes of assessing an arrestee's right to resist the 

arrest] is determined by [Code §§ 19.2-77, 19.2-81, and 

19.2-100]." Brown v. Commonwealth, 27 Va. App. 111, 116, 497 

S.E.2d 527, 530 (1998); see also Johnson v. United States, 333 

U.S. 10, 15 & n.5, 68 S. Ct. 367, 370 & n.5, 92 L. Ed. 436, 441 

& n.5 (1948) (in reviewing reasonableness of search claimed 

constitutional as incident to arrest, holding state law 

"determine[s] whether the arrest itself was lawful"). Code 

§ 19.2-81, the statute applicable here, provides in pertinent 

part that a sheriff's deputy "may arrest, without a warrant, any 

person who commits any crime in the presence of the officer and 

any person whom he has reasonable grounds or probable cause to 

suspect of having committed a felony not in his presence." 

Thus, "[t]he dispositive question is whether the officers had 

 - 27 - 
probable cause to arrest . . . ." Smith v. Commonwealth, 30 

Va. App. 737, 740, 519 S.E.2d 831, 832 (1999). 

 No Virginia appellate decision holds that an arrest is 

unlawful for purposes of entitling the arrestee to resist the 

arrest simply because the evidence which provides probable cause 

for the arrest is obtained in a search or seizure that is 

unreasonable under the Fourth Amendment. Cf. Commonwealth v. 

Hill, 264 Va. ___, ___, 570 S.E.2d 805, ___ (Nov. 1, 2002) (in 

holding no right exists to resist an unlawful detention without 

revisiting the continuing validity of the right to resist an 

unlawful arrest, noting that "'"[c]lose questions as to whether 

an officer possesses articulable suspicion must be resolved in 

the courtroom and not fought out on the streets"'" (quoting 

State v. Wiegmann, 714 A.2d 841, 849-50 (Md. 1998) (quoting 

State v. Blackman, 617 A.2d 619, 630 (Md. Ct. Spec. App. 

1992)))). Further, the Ninth Circuit Court of Appeals has held 

that an arrest flowing from an unreasonable search which yields 

marijuana is not "unlawful" in the sense required to permit the 

arrestee to resist. United States v. Moore, 483 F.2d 1361, 

1364-65 (9th Cir. 1973). As that court explained, 

[t]he privilege [to resist] is available 

only if the arrest was "unlawful." The 

parties agree that appellant was arrested 

after the agents discovered the marihuana in 

his suitcase [while conducting an 

unreasonable search]. The agents then had 

probable cause to believe that a felony was 

being committed in their presence. The 

warrantless arrest was therefore lawful, in 

 - 28 - 
itself. It was "unlawful" only in the 

exclusionary-rule sense that it was "fruit" 

of the prior unlawful search. We have been 

cited no authority, and have found none, 

that permits resistance to an arrest that is 

unlawful only in this derivative sense. 

Id. (emphasis added). 

 The court in Moore examined "[t]he purposes of the 

privilege [to resist an unlawful arrest]," which it cited as 

"deter[ring] abuses of police authority" and "preserv[ing] the 

sense of personal liberty and integrity . . . by protecting from 

punishment persons who reasonably resist unlawful intrusions by 

government agents." Id. at 1365. It concluded that "the 

resolution of often difficult issues relating to the lawfulness 

of the search [upon which the challenged arrest was based] are 

surely best left to subsequent court proceedings." Id.; see 

also Hill, 264 Va. at ___, 570 S.E.2d at ___. As a result, the 

court was "unwilling," under the facts of that case, "to 

initiate . . . an extension of the privilege [to resist]" an 

arrest that was unlawful only in a "derivative sense."6 Moore, 

483 F.2d at 1365. 

 6

 The court indicated in Moore that it might be willing to 

extend the right to resist an arrest supported by probable cause 

if the arrestee "claim[ed] . . . bad faith, unreasonable force, 

or provocative conduct on the part of the arresting officer." 

473 F.2d at 1365; see also United States v. Span, 970 F.2d 573, 

579-80 (9th Cir. 1992). 

 - 29 - 

 Assuming that whether the officer acted in bad faith would 

be relevant under Virginia law, see Brown, 27 Va. App. at 116, 

497 S.E.2d at 530 (holding that where officer makes arrest 

without valid warrant or probable cause, arrest is unlawful and 

whether officer acted in good faith is irrelevant to arrestee's 
 Similarly, in appellant's case, the arrest was unlawful 

only in a "derivative sense." Id. Assuming the entry and the 

weapons frisk violated the Fourth Amendment's prohibition 

against unreasonable searches and seizures, the evidence 

establishes that "appellant was arrested after [Deputy Dollar] 

discovered the mari[j]uana in his [pocket]. [Deputy Dollar] 

then had probable cause to believe that a [crime] was being 

committed in [his] presence. The warrantless arrest was 

therefore lawful, in itself," even if unlawful in a "derivative 

sense." Id. at 1364-65; see Code § 19.2-81. Assuming without 

deciding that appellant would have been privileged to use 

reasonable force to resist the entry or the weapons frisk or 

both, but see Hill, 264 Va. at ___, 570 S.E.2d at ___, appellant 

lost the privilege to resist his subsequent arrest once Deputy 

Dollar discovered marijuana in his possession, even if Dollar's 

 

right to resist that unlawful arrest); Foote, 11 Va. App. at 67, 

396 S.E.2d at 855 (holding that where officer makes arrest based 

on radio transmission regarding existence of charges against 

particular person in another jurisdiction but does not obtain 

name or reasonably accurate description of person to confirm 

arrestee is the person wanted, arrest is unlawful and whether 

officer acted in good faith is irrelevant to arrestee's right to 

resist that unlawful arrest), no evidence established that 

Deputy Dollar acted in bad faith. As counsel for appellant 

conceded in argument, "I don't need to come in here to Court and 

say, bad cop, bad cop, [I] don't believe that. The simple fact 

is these two officers have nine months of experience between 

them. . . . I think what happened was, adrenalin[e] took over, 

. . . and the Fourth Amendment went out the window." 

 - 30 - 

 Further, as discussed in the majority opinion, Virginia law 

recognizes a right to resist an arrest involving excessive 

force, and this right did not apply under the facts of this 

case. 
discovery of the marijuana resulted from an unreasonable entry 

and search. 

 - 31 - 
II. 

 In sum, I would hold that, although Deputy Dollar was 

rightly in appellant's presence, the weapons frisk violated the 

Fourth Amendment because the presence of a bulge in appellant's 

pocket was insufficient under the facts of this case to provide 

reasonable suspicion that appellant was armed and dangerous. 

However, I would also hold that appellant had no right to resist 

his arrest for possession of marijuana. Thus, I concur in the 

majority's affirmance of appellant's two convictions for assault 

and battery of a law enforcement officer but dissent from its 

affirmance of the conviction for marijuana possession. 

 - 32 - 
 Wednesday 12th 

 June, 2002. 

Benjamin Wayne McCracken, Appellant, 

 against Record No. 2912-00-3 

 Circuit Court Nos. CR00-259, CR00-260 and 

 CR00-262 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

Before the Full Court 

On May 28, 2002 came the appellant, by court-appointed 

counsel, and filed a petition praying that the Court set aside 

the judgment rendered herein on May 14, 2002, and grant a 

rehearing en banc thereof. 

On consideration whereof, the petition for rehearing en

banc is granted, the mandate entered herein on May 14, 2002 is 

stayed pending the decision of the Court en banc, and the appeal 

is reinstated on the docket of this Court. 

The parties shall file briefs in compliance with Rule 

5A:35. The appellant shall attach as an addendum to the opening 

brief upon rehearing en banc a copy of the opinion previously 

rendered by the Court in this matter. It is further ordered that 

the 

appellant shall file with the clerk of this Court twelve 

additional copies of the appendix previously filed in this case. 

 A Copy, 

 - 33 - 
 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 

 - 34 - 
COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bumgardner 

Argued at Salem, Virginia 

BENJAMIN WAYNE McCRACKEN 

 MEMORANDUM OPINION* BY 

v. Record No. 2912-00-3 JUDGE LARRY G. ELDER 

 MAY 14, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Nicholas E. Persin, Judge 

 John B. Coleman (Scyphers & Austin, P.C., on 

brief), for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

 Benjamin Wayne McCracken (appellant) appeals from his jury 

trial convictions for marijuana possession and two counts of 

assault and battery on a law enforcement officer. On appeal, he 

contends the trial court erroneously denied his motion to 

suppress because the officer's warrantless entry and weapons 

frisk violated the Fourth Amendment proscription against 

unreasonable searches and seizures. As a result, appellant 

argues, his arrest for marijuana possession was unlawful. 

Because the arrest was unlawful and because the officers used 

excessive force in effecting the arrest, he contends, he was 

entitled to use reasonable force to resist. 

We hold in Part II.A. that the trial court erred in refusing 

to suppress the marijuana discovered in the weapons frisk and to 

 

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

designated for publication.

 - 35 - 
dismiss the marijuana possession charge. However, we hold in 

Part II.B. that appellant was not entitled to resist the 

warrantless arrest, which was based on probable cause and met the 

requirements of Code § 19.2-81. Thus, we reverse and dismiss 

appellant's conviction for marijuana possession and affirm his 

two convictions for assault and battery on a law enforcement 

officer.7

I. 

BACKGROUND 

 As of April 8, 2000, appellant and Teresa Fields were 

romantically involved and had resided together in Fields' 

residence for about two-and-one-half years. That morning, Fields 

and appellant had an argument, and around noon, Fields called 911 

to have appellant removed from her residence. Uniformed 

Sheriff's Deputies Resinol L. Dollar, Jr., and Jason D. Sexton 

responded to the "[911] domestic disturbance call at Teresa 

Fields' residence." Upon their arrival, the deputies heard 

"verbal arguing." Appellant was "irritable," but "[t]here was no 

violent confrontation[]," and Deputy Dollar said the situation 

"seemed to have been not very escalated." Appellant "agreed to 

leave" and go stay with his mother. The deputies supervised 

appellant's collection of his belongings, and they told Fields to 

 7

 For the reasons set out in his attached opinion, Judge 

Benton "substantially concur[s]" in both the reasoning and 

result of Part II.A., which reverses and dismisses appellant's 

conviction for marijuana possession. Judge Bumgardner concurs 

in the result of Part II.B., which affirms appellant's 

convictions for assault and battery. Thus, the marijuana 

possession conviction is reversed and dismissed by Judges Elder 

and Benton, with Judge Bumgardner dissenting, and the assault 

and battery convictions are affirmed by Judges Elder and 

 - 36 - 
call them "if [she] had anymore trouble." After forty-five 

minutes to an hour, appellant and the deputies departed. 

 After appellant arrived at his mother's residence, appellant 

telephoned Fields. During that conversation, appellant and 

Fields were "still agitated," "upset" and "very angry." Shortly 

after the conversation ended, appellant's mother called Fields to 

tell her that appellant was on his way back to Fields' residence. 

Fields then called 911 a second time and told the dispatcher that 

appellant was on his way back to her house. The dispatcher told 

her to "lock [her] doors," and he notified Deputies Dollar and 

Sexton to return to Fields' residence on a "domestic call." 

 When Deputy Dollar arrived, he found neighbors in the front 

yard "screaming" and "hollering," and he also "could hear [Fields 

and appellant inside the house] verbally arguing back and forth." 

Knowing that Fields had "called [the 911 dispatcher] for 

assistance," Deputy Dollar drew his weapon, pointed it at the 

ground, and entered the residence, without knocking, through the 

closed screen and partially open "main door." 

 Upon entering, Dollar saw Fields and appellant standing four 

to six feet apart. Dollar noticed nothing odd about Fields' 

condition or appearance. Appellant had nothing in his hands, but 

Dollar saw a bulge in appellant's right front pants pocket, and 

he asked appellant to place his hands on the wall so that Dollar 

could "make sure [appellant] didn't have any weapons." Appellant 

kept moving away from Dollar but finally put his hands on the 

back of a love seat. 

 

 - 37 - 

Bumgardner, with Judge Benton dissenting. 
 While appellant leaned on the love seat, Dollar put one of 

his hands in the center of appellant's back, holstered his weapon 

and patted the bulge in appellant's pocket. The bulge was "a 

hard rigid object." When Dollar attempted to retrieve the 

object, he instead pulled out a baggie containing 2.1 grams of 

marijuana which had been on top of the hard object, and he asked 

appellant what he had found. Appellant "was becoming very 

agitated" and "jerked away" from Dollar, and Dollar was unable to 

"retrieve the rigid object out of [appellant's] pocket after 

that." 

 Dollar told appellant he was under arrest for marijuana 

possession, but appellant resisted Dollar's instructions to put 

his hands behind his back. Appellant "kept easing away" and told 

Dollar he was "just there to get some more of his belongings," 

including "his gun." Appellant then "started going from the 

living room to the kitchen at a real quick pace, going toward the 

back of the house." 

 Deputy Dollar told appellant to stop, "[got] ahold of 

[appellant]" from behind and "[tried] to subdue him." Appellant 

resisted, despite Dollar's verbal instructions. Dollar then used 

his baton, striking appellant on the thigh and leg, but appellant 

"was still fighting and kicking and trying to push off the wall 

back toward [Dollar]." Deputy Dollar then slipped while still 

holding onto appellant's waist, and appellant "struck [him] 

across the face when [Deputy Dollar] fell." Appellant put Dollar 

"in a sort of choking headlock" which covered Dollar's nose and 

mouth. Dollar was unable to breathe and "was getting very 

concerned for [his] safety." 

 - 38 - 
 About that time, Deputy Sexton arrived and saw appellant and 

Deputy Dollar on the floor of the kitchen. When Sexton attempted 

to get appellant to release his hold on Deputy Dollar, appellant 

"threw his left elbow back and struck [Sexton] in the ribs." 

Sexton then sprayed appellant with pepper spray in an effort to 

get appellant to release Deputy Dollar. Appellant, recognizing 

Sexton was a law enforcement officer, said, "'That tear gas ain't 

shit, cop,' and then he returned his attention to Deputy Dollar." 

 Deputy Dollar managed to grab one of appellant's arms. 

While Deputy Sexton held appellant's other arm, appellant kicked 

the right side of Sexton's face and his right knee. Appellant 

was "doing his best to keep Deputy Dollar from [handcuffing] 

him," but the deputies finally succeeded and transported him to 

the jail. 

 A search of Fields' residence revealed a rifle belonging to 

appellant was behind the door of the bedroom located five feet 

from the site in the kitchen where the struggle took place. A 

search of appellant at the jail revealed a folding knife in his 

right front pocket, the same pocket in which Deputy Dollar had 

felt the hard object and from which he had recovered the baggie 

of marijuana. 

II. 

ANALYSIS 

A. 

WEAPONS FRISK 

 Appellant contends that the trial court erroneously denied 

his motion to suppress the marijuana because both Dollar's second 

entry of Fields' residence and his frisk of appellant for weapons 

 - 39 - 
were unreasonable. Assuming, for purposes of analyzing the 

frisk, that Deputy Dollar's second entry of Fields' residence was 

reasonable, we nevertheless hold that the frisk violated the 

Fourth Amendment because Dollar lacked reasonable suspicion to 

believe appellant was armed and dangerous. 

 On appeal of the denial of a motion to suppress, we view the 

evidence in the light most favorable to the Commonwealth. 

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. 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 legal standards such as reasonable 

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

United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 

L. Ed. 2d 911 (1996). 

 In order for an officer to conduct a weapons frisk, two 

conditions must exist. First, the officer must rightly be in the 

presence of the party frisked so as to be endangered if the 

person is armed. See, e.g., 4 Wayne R. LaFave, Search and 

Seizure § 9.5, at 246 (3d ed. 1996). Second, the officer must be 

able to point to "'specific and articulable facts'" "which 

reasonably lead[] him to conclude, in light of his experience, 

. . . that the suspect 'may be armed and presently dangerous.'" 

Lansdown v. Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110 

(1983) (quoting Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S. Ct. 

1868, 1880, 1884, 20 L. Ed. 2d 889 (1968)). 

 - 40 - 
 In assessing whether a particular person may be armed and 

dangerous, an officer may consider "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 detection of crime." Christian v. 

Commonwealth, 33 Va. App. 704, 714, 536 S.E.2d 477, 482 (2000) 

(en banc) (footnote omitted). "An officer may not, simply by 

observing some item causing a 'bulge' in one's clothing, conduct 

a general frisk where the nature of the bulge or the surrounding 

circumstances do not reasonably support the conclusion that . . . 

the person is armed and dangerous." Stanley v. Commonwealth, 16 

Va. App. 873, 877, 433 S.E.2d 512, 515 (1993); see also United 

States v. Wilson, 953 F.2d 116, 125 (4th Cir. 1991) (holding 

that, absent additional evidence, seeing "a bulge [in clothing of 

person at airport] is not the sort of observation that has any 

significance"). Compare Stanley, 16 Va. App. at 876, 433 S.E.2d 

at 514 (holding the Fourth Amendment "does not legitimize a 

patdown search of someone stopped for a routine traffic offense 

simply because he is carrying an item the size and configuration 

of a wallet or checkbook in his front pants pocket"), with

Troncoso v. Commonwealth, 12 Va. App. 942, 945, 407 S.E.2d 349, 

350-51 (1991) (holding that if bulge observed in stomach area of 

driver during routine traffic stop is accompanied by fidgeting, 

nervousness, and effort to conceal bulge, officer's belief that 

subject may be armed and dangerous is reasonable). 

 Here, assuming without deciding that Deputy Dollar was 

rightly in the presence of appellant when he entered Fields' 

 - 41 - 
residence in response to her second 911 call, the evidence did 

not provide Deputy Dollar with reasonable, articulable suspicion 

to conclude that the object in appellant's pocket may have been a 

weapon. Although Deputy Dollar was responding to a 911 "domestic 

call" at Fields' residence for the second time that day, the 

first call involved only "verbal arguing," was "not very 

escalated," and resolved peacefully with no indication that 

either party possessed a weapon or was predisposed to use 

violence toward the other or toward the deputies. When Deputy 

Dollar returned the second time, neighbors were in the front 

yard yelling, and Dollar heard the parties inside "verbally 

arguing back and forth" while he stood on the front porch, but 

Dollar did not testify that he overheard either party threaten 

the other or that he heard anything indicating physical violence 

or abuse. 

 When Dollar entered unannounced, he immediately saw Fields 

and appellant standing at least four feet apart, he noticed 

nothing unusual about Fields' appearance, and he saw nothing in 

either party's hands. Although he noticed appellant's right 

front pocket was "bulging" and concluded that appellant had 

"something" inside his pocket, Dollar articulated no specific 

basis for believing that "something" might be a weapon. Before 

Deputy Dollar attempted to frisk appellant for weapons, appellant 

engaged in no additional behavior and made no statements tending 

to indicate that he was armed and presently posed a danger to 

Fields or Deputy Dollar. 

Thus, we conclude Deputy Dollar lacked reasonable 

articulable suspicion to believe appellant was both armed and 

 - 42 - 
presently dangerous when Dollar told appellant he intended to 

frisk appellant for weapons. We recognize that domestic disputes 

often are fraught with danger for both their participants and the 

law enforcement officers trying to diffuse them. See, e.g., 

Fletcher v. Town of Clinton, 196 F.3d 41, 50 (1st Cir. 1999) 

(noting that in domestic disputes, "violence may be lurking and 

explode with little warning"). Nevertheless, we are unwilling to 

hold that an officer responding to a verbal domestic dispute may 

frisk a party to the dispute solely because that party has an 

unidentified "bulge" in his pocket. Accordingly, we hold that 

Deputy Dollar's frisk of appellant and search of his pocket were 

unreasonable and that the fruits of that search should have been 

suppressed. Because no evidence other than the illegally seized 

marijuana supported appellant's conviction for marijuana 

possession, we reverse that conviction and dismiss the underlying 

charge. 

B. 

ASSAULT AND BATTERY ON A LAW ENFORCEMENT OFFICER8

 "An unlawful arrest or an arrest utilizing excessive force 

is a battery because that touching is not justified or excused 

 

 - 43 - 

8

 Part II.B. represents the opinion only of Judge Elder. 

Judge Bumgardner concurs only in the resulting affirmance of the 

assault and battery convictions. 
and therefore is unlawful." Gnadt v. Commonwealth, 27 Va. App. 

148, 151, 497 S.E.2d 887, 888 (1998). In either case, the 

arrestee may use reasonable force to resist the arrest. See

Palmer v. Commonwealth, 143 Va. 592, 602-03, 130 S.E. 398, 401 

(1925); Foote v. Commonwealth, 11 Va. App. 61, 69, 396 S.E.2d 

851, 856 (1990). Here, appellant was not entitled to use 

reasonable force to resist his arrest (1) because the arrest was 

not unlawful in the sense required to permit him to resist the 

arrest and (2) because the evidence, viewed in the light most 

favorable to the Commonwealth, establishes that the officers used 

no more force than was necessary to effect that arrest. 

1. Lawfulness of Arrest

 "In Virginia, . . . [t]he lawfulness of an attempted arrest 

[for purposes of assessing an arrestee's right to resist the 

arrest] is determined by [Code §§ 19.2-77, 19.2-81, and 

19.2-100]." Brown v. Commonwealth, 27 Va. App. 111, 116, 497 

S.E.2d 527, 530 (1998); see also Johnson v. United States, 333 

U.S. 10, 15 & n.5, 68 S. Ct. 367, 370 & n.5, 92 L. Ed. 436, 441 & 

n.5 (1948) (in reviewing reasonableness of search claimed 

constitutional as incident to arrest, holding state law 

"determine[s] whether the arrest itself was lawful"). Code 

§ 19.2-81, the statute applicable here, provides in pertinent 

part that a sheriff's deputy "may arrest, without a warrant, any 

person who commits any crime in the presence of the officer and 

any person whom he has reasonable grounds or probable cause to 

suspect of having committed a felony not in his presence." Thus, 

"[t]he dispositive question is whether the officers had probable 

 - 44 - 
cause to arrest . . . ." Smith v. Commonwealth, 30 Va. App. 737, 

740, 519 S.E.2d 831, 832 (1999). 

 No Virginia appellate decision holds that an arrest is 

unlawful for purposes of entitling the arrestee to resist the 

arrest simply because the evidence which provides probable cause 

for the arrest is obtained in a search or seizure that is 

unreasonable under the Fourth Amendment. Cf. Hill v. 

Commonwealth, 37 Va. App. 1, 553 S.E.2d 529 (2001) (holding 

detention not based on reasonable suspicion or probable cause was 

illegal and detainee was entitled to use reasonable force to 

resist). Further, the Ninth Circuit Court of Appeals has held 

that an arrest flowing from an unreasonable search which yields 

marijuana is not "unlawful" in the sense required to permit the 

arrestee to resist. United States v. Moore, 483 F.2d 1361, 

1364-65 (9th Cir. 1973). As that Court explained, 

[t]he privilege [to resist] is available only 

if the arrest was "unlawful." The parties 

agree that appellant was arrested after the 

agents discovered the marihuana in his 

suitcase [while conducting an unreasonable 

search]. The agents then had probable cause 

to believe that a felony was being committed 

in their presence. The warrantless arrest 

was therefore lawful, in itself. It was 

"unlawful" only in the exclusionary-rule 

sense that it was "fruit" of the prior 

unlawful search. We have been cited no 

authority, and have found none, 

 - 45 - 
that permits resistance to an arrest that is 

unlawful only in this derivative sense. 

Id. (emphasis added). 

 The Court in Moore examined "[t]he purposes of the privilege 

[to resist an unlawful arrest]," which it cited as "deter[ring] 

abuses of police authority" and "preserv[ing] the sense of 

personal liberty and integrity . . . by protecting from 

punishment persons who reasonably resist unlawful intrusions by 

government agents." Id. at 1365. It concluded that "the 

resolution of often difficult issues relating to the lawfulness 

of the search [upon which the challenged arrest was based] are 

surely best left to subsequent court proceedings." Id. As a 

result, the Court was "unwilling," under the facts of that case, 

"to initiate . . . an extension of the privilege [to resist]" an 

arrest that was unlawful only in a "derivative sense."9 Id.

 Similarly, in appellant's case, the arrest was unlawful only 

in a "derivative sense." Id. Assuming the entry and the weapons 

 9

 The Court indicated in Moore that it might be willing to 

extend the right to resist an arrest supported by probable cause 

if the arrestee "claim[ed] . . . bad faith, unreasonable force, 

or provocative conduct on the part of the arresting officer." 

473 F.2d at 1365; see also United States v. Span, 970 F.2d 573, 

579-80 (9th Cir. 1992). 

 Assuming that whether the officer acted in bad faith is 

relevant under Virginia law, see Brown, 27 Va. App. at 116, 497 

S.E.2d at 530; Foote, 11 Va. App. at 67, 396 S.E.2d at 855, no 

evidence established that Deputy Dollar acted in bad faith. As 

counsel for appellant conceded in argument, "I don't need to come 

in here to Court and say, bad cop, bad cop, [I] don't believe 

that. The simple fact is these two officers have nine months of 

experience between them. . . . I think what happened was, 

adrenalin[e] took over, . . . and the Fourth Amendment went out 

the window." 

 Further, as discussed infra in the text, Virginia law 

recognizes a right to resist an arrest involving excessive force, 

and this right did not apply under the facts of this case. 

 - 46 - 
frisk violated the Fourth Amendment's prohibition against 

unreasonable searches and seizures, the evidence establishes that 

"appellant was arrested after [Deputy Dollar] discovered the 

mari[j]uana in his [pocket]. [Deputy Dollar] then had probable 

cause to believe that a [crime] was being committed in [his] 

presence. The warrantless arrest was therefore lawful, in 

itself," even if unlawful in a "derivative sense." Id. at 

1364-65; see Code § 19.2-81. Assuming without deciding that 

appellant would have been privileged to use reasonable force to 

resist the entry or the weapons frisk or both, see Hill, 37 Va. 

App. at 6-7, 553 S.E.2d at 532, appellant lost the privilege to 

resist his subsequent arrest once Deputy Dollar discovered 

marijuana in his possession, even if Dollar's discovery of the 

marijuana resulted from an unreasonable entry and search. 

2. Force Used to Effect the Arrest

 "[W]hen an officer attempts to arrest a person charged with 

a felony and uses more force than is reasonably necessary to make 

the arrest, the officer himself becomes a wrongdoer and the 

person whose arrest is sought, if himself without fault, can 

resist such excessive force . . . ." Palmer, 143 Va. at 602-03, 

130 S.E. at 401. Whether the force used is reasonable is a mixed 

question of law and fact. See Brown, 27 Va. App. at 117, 497 

S.E.2d at 530. In reviewing the factual predicate for the trial 

court's ruling, we view the evidence in the light most favorable 

to the Commonwealth. See Smith, 30 Va. App. at 740, 519 S.E.2d 

at 832. 

 None of Deputy Dollar's or Deputy Sexton's actions 

constituted excessive force in light of appellant's attempts to 

 - 47 - 
resist. Fields testified that Deputy Dollar pushed appellant's 

head into a window unnecessarily while frisking appellant for 

weapons. However, the fact finder was entitled to reject Fields' 

explanation as to how the window was broken and to conclude that 

the damage occurred either prior to Dollar's encounter with 

appellant or, if during the encounter, in an accidental fashion. 

Further, even accepting Fields' testimony as to what occurred 

during the weapons frisk, Fields admitted that appellant refused 

to comply with Deputy Dollar's request to him to remain still 

during the frisk, permitting the inference that Dollar was simply 

attempting to maintain control of appellant and did not use 

unreasonable force in doing so. Finally, Deputy Dollar's use of 

force during the weapons frisk did not entitle appellant to 

resist the subsequent arrest for marijuana possession by 

assaulting and battering the deputies. Assuming without deciding 

appellant was entitled to resist the frisk because it was not 

supported by reasonable suspicion, see Hill, 37 Va. App. at 6-7, 

553 S.E.2d at 532, the arrest itself was based on probable cause 

resulting from Dollar's discovery of the marijuana. 

 When Deputy Dollar told appellant he was placing appellant 

under arrest, appellant refused to submit to Deputy Dollar's 

authority. Instead, appellant said he was "just there to get 

some more of his belongings," including "his gun," and he walked 

to the back of the house "at a real quick pace." When Deputy 

Dollar "[got] ahold of [appellant]" from behind, appellant 

refused to cooperate, despite Dollar's verbal instructions and 

efforts to subdue appellant physically. Only then did Dollar use 

his baton, striking appellant on the thigh and leg, but appellant 

 - 48 - 
"was still fighting and kicking." When Deputy Dollar slipped, 

appellant struck him across the face and placed him in a "choking 

headlock" which restricted Dollar's ability to breathe. 

 Dollar was very concerned for his safety at that time, as 

was Deputy Sexton when he entered the kitchen and found appellant 

had Deputy Dollar in a headlock. As Deputy Sexton attempted to 

assist Dollar, appellant struck Sexton in the ribs. Sexton then 

sprayed appellant with pepper spray in an effort to get appellant 

to release Dollar. Appellant, clearly recognizing Sexton as a 

law enforcement officer, said, "That tear gas ain't shit, cop," 

and continued to resist. When Dollar managed to wriggle free and 

the deputies tried again to subdue appellant, appellant kicked 

Sexton in the face and knee. Thus, the evidence supported a 

finding that, by that point in the altercation, appellant had 

assaulted and battered both deputies, who had exercised only as 

much force as was necessary to subdue appellant and take him into 

custody. 

 Because the deputies did not use excessive force to arrest 

and subdue appellant, the amount of force they did use did not 

entitle appellant to resist. 

III. 

 For these reasons, we hold the weapons frisk violated the 

Fourth Amendment because the presence of a bulge in appellant's 

pocket was insufficient under the facts of this case to provide 

reasonable suspicion that appellant was armed and dangerous. 

However, appellant had no right to resist his arrest for 

possession of marijuana. Thus, we reverse and dismiss the 

 - 49 - 
marijuana possession conviction and affirm the two convictions 

for assault and battery of a law enforcement officer. 

Affirmed, in part,

and reversed and dismissed, in part.

 - 50 - 
Benton, J., concurring, in part, and dissenting, in part. 

 

 I substantially concur in Parts I. and II.A. and, therefore, 

I concur in reversing the conviction for possession of marijuana 

and dismissing the underlying charge. I do not join in the 

remainder of the opinion. For the reasons that follow, I would 

also reverse and dismiss the assault and battery convictions. 

 I. 

 The evidence proved that Benjamin McCracken and Teresa 

Fields lived together for nearly three years in a house Fields' 

father owned. Fields testified that she and McCracken argued 

about noise she made while cleaning the house and that she called 

the police because she "had an excruciating headache, . . . 

was ill, irritable" and tired of arguing. Midday, on April 8, 

2000, two officers went to the residence in response to Fields' 

telephone call. One of the officers testified that they 

responded to a complaint of "verbal arguing." No other evidence 

proved that Fields told the police anything else during her 

initial telephone call. 

 When the police arrived, McCracken was putting various 

personal items in his car. Fields and McCracken explained that 

"they'd had [a] verbal argument and that [there] had been no 

assault." When asked if he was able to calm the situation, the 

officer responded, "It seemed to have been not very escalated." 

 - 51 - 
The officers remained while McCracken gathered some of his 

personal belongings and put them in his car. One officer 

described the situation as "very peaceful" and said they helped 

McCracken load some of his items. The other officer testified 

that McCracken was "very friendly, he agreed to leave, and there 

were no problems whatsoever." Fields testified that she and 

McCracken declined "to fill out any type of papers to keep each 

other away" and said "there was no purpose for that." 

 McCracken went to his mother's residence and later 

telephoned Fields. During that conversation, McCracken and 

Fields were both agitated. McCracken's mother then telephoned 

Fields to inform her that McCracken was returning to collect more 

of his belongings. Before McCracken arrived at the residence, 

Fields telephoned the police dispatcher and requested that the 

officers return to her home. The officers received the second 

call about an hour and a half after they had left the residence. 

Fields testified that she wanted the officers to return because 

she had to go to work and did not want to be delayed by an 

argument with McCracken. 

 The first officer to arrive testified that before entering 

the residence, he heard neighbors hollering something to him. 

Fields' sister testified that when she saw the officer having 

difficulty opening the screen door, she called to him that "the 

front door drags." The officer testified that he heard Fields 

and McCracken "verbally arguing back and forth when he walked up 

on the porch." Fields testified, however, that she was talking 

to McCracken and that they were not arguing. The officer drew 

his weapon and walked into the house without knocking. 
 II. 

 McCracken contends the officers did not have either probable 

cause to believe a crime was being committed or exigent 

circumstances to justify their entry. The Commonwealth responds 

the "officers had probable cause at the time of their warrantless 

entry to believe that cognizable exigent circumstances were 

present." 

 The United States Supreme Court has held that, "absent 

probable cause and exigent circumstances, warrantless [entries 

and] arrests in the home are prohibited by the Fourth Amendment." 

Welsh v. Wisconsin, 466 U.S. 740, 741 (1984); Payton v. New York, 

445 U.S. 573, 590 (1980). "[W]arrantless entries into dwellings, 

followed by searches, seizures, and arrests therein . . . are 

presumed to be unreasonable, in Fourth Amendment terms, casting 

upon the police a heavy burden of proving justification by 

exigent circumstances." Verez v. Commonwealth, 230 Va. 405, 410, 

337 S.E.2d 749, 752-53 (1985); Welsh, 446 U.S. at 750. 

Furthermore, "[e]xigent circumstances justify a warrantless entry 

. . . only when the police have probable cause to obtain a search 

warrant." Alexander v. Commonwealth, 19 Va. App. 671, 674, 454 

S.E.2d 39, 41 (1995). 

 - 53 - 
 The trial judge found that the officers acted reasonably in 

entering the residence and denied the motion to suppress. His 

findings included the following: 

There is no question or at least I haven't 

heard any evidence that would cause the 

Court to believe that the first call was not 

made by her complaining about the conduct of 

[McCracken]. The officers responded. When 

they got there, evidently a reasonable 

inference would be that . . . Fields and 

[McCracken] had come to some sort of 

agreement. The officers testified that 

there was no fighting or arguing, that he 

was in the process of removing his property. 

He was cooperative, he was loading his 

vehicle, his personal items, some of his 

stereo equipment. The officers even 

assisted him. So there is no evidence of 

any ill feeling or ill will from the first 

call. But the fact remains that . . . 

Fields called for help the first time. . . . 

Shortly thereafter, an hour or hour and a 

half later, a second call comes in. And the 

evidence is unrebutted that [McCracken] is 

back on her property where he was living 

with her. And the Jury has heard evidence 

that there was screaming on the outside, one 

of the officers heard it, the other one 

didn't. Officer Sexton says he didn't. And 

when they go inside of the house, the Court 

is of the opinion that that was reasonable. 

I mean, here you had a second call where the 

officers thought [McCracken] was leaving and 

was cooperative and left. Now he's back on 

the scene. And the owner of the property is 

calling the officers again for assistance. 

They respond. They come in, they observe, 

they know there's been prior problems. 

 We have held that a call to the police dispatcher for 

assistance does not, without more, give rise to probable cause to 

believe a crime is occurring. Id. at 674-75, 454 S.E.2d at 41. 

Indeed, the evidence proved that when Fields called the police on 

the second occasion, McCracken had not arrived. Fields knew the 

 - 54 - 
police dispatcher and told him "that [her problem with McCracken] 

was just verbal." She testified that she reported no crime, that 

she expected no trouble from McCracken, and that she wanted the 

officers there because she had to go to work and did not want to 

be delayed by an argument with McCracken. Thus, she had not 

given the police dispatcher or the officers any basis to believe 

McCracken would do anything other than continue to gather his 

property. "Probable cause for police officers to enter a 

person's [residence] must be based on more than speculation, 

suspicion, or surmise that a crime might be in progress." Id. 

 The evidence also proved that when the police arrived in 

response to the first call from Fields, McCracken had made no 

threats. Although he and Fields had had an argument, the 

officers testified that matters were peaceful and nonthreatening. The evidence proved Fields had not even expressed 

fear of McCracken when she first called the police. Thus, the 

officers could not reasonably infer from their first visit to the 

house or the call before their second visit to the house that 

when McCracken returned to remove more of his property he either 

posed any threat to Fields or would commit a crime. Simply put, 

this evidence failed to prove the officer had probable cause to 

believe a crime had been or was being committed when he made the 

warrentless entry into the home. 

 In addition, the principle is well established that "no 

amount of probable cause can justify a warrantless [entry into a 

home] . . . absent 'exigent circumstances.'" Coolidge v. New 

Hampshire, 403 U.S. 443, 468 (1971); Payton, 445 U.S. at 590. 

"Before agents of the government may invade the sanctity of the 

 - 55 - 
home, the burden is on the government to demonstrate exigent 

circumstances that overcome the presumption of unreasonableness 

that attaches to all warrantless home entries." Welsh, 466 U.S. 

at 750. The evidence proved that McCracken had never physically 

abused Fields and that she had no fear of him. Moreover, Fields 

did not tell the police dispatcher McCracken had threatened her. 

She testified she has known the dispatcher "for years" and told 

him her only concern was the arguments. She merely wanted 

someone there to prevent another argument. Although the trial 

judge could believe the officer's testimony that he heard 

argument and disbelieve Fields' testimony that she and McCracken 

were not arguing, the mere occurrence of an argument is not 

indicative of a threat to life or serious injury. The officer 

had no other basis to believe an emergency existed. As in 

Shannon v. Commonwealth, 18 Va. App. 31, 34, 441 S.E.2d 225, 226, 

aff'd on reh'g en banc, 19 Va. App. 145, 449 S.E.2d 584 (1994), 

and Alexander, this evidence contains no basis upon which the 

police officers could have concluded that an emergency existed. 

Thus, the Commonwealth failed to meet its "heavy burden" of 

proving exigent circumstances existed justifying the warrantless 

entry. Alexander, 19 Va. App. at 674, 454 S.E.2d at 41. 

 III. 

 "At the very core [of the Fourth Amendment] stands the right 

of a [person] to retreat into his [or her] own home and there be 

free from unreasonable governmental intrusion." Silverman v. 

United States, 365 U.S. 505, 511 (1961). "It is axiomatic that 

the 'physical entry of the home is the chief evil against which 

the wording of the Fourth Amendment is directed.'" Welsh, 466 

 - 56 - 
U.S. at 748 (citation omitted). "In terms that apply equally to 

seizures of property and to seizures of persons, the Fourth 

Amendment has drawn a firm line at the entrance to the house." 

Payton, 445 U.S. at 589-90. Thus, the Supreme Court has 

reiterated that it "held in Payton . . . that a suspect should 

not be arrested in his house without an arrest warrant, even 

though there is probable cause to arrest him." Minnesota v. 

Olson, 495 U.S. 91, 95 (1990). 

 Indeed, the principle is well established and long standing 

that an unlawful, warrantless entry by a police officer into a 

residence renders void an arrest which is founded upon a 

discovery inside the residence after the unlawful entry. Johnson 

v. United States, 333 U.S. 10, 15-17 (1948); see also Welsh, 466 

U.S. at 748-50; Payton, 445 U.S. at 588-90; Jefferson v. 

Commonwealth, 27 Va. App. 1, 18, 497 S.E.2d 474, 482-83 (1998) 

(holding that the "arrest of appellant . . . executed after the 

officer entered the curtilage of appellant's home without a 

warrant . . . violated the Fourth Amendment"). The purpose of 

these decisions, holding the arrests to be void, is "to protect 

[the] home from entry." Olson, 495 U.S. at 95. 

An officer gaining access to private living 

quarters under color of his office and of 

the law which he personifies must then have 

some valid basis in law for the intrusion. 

Any other rule would undermine "the right of 

the people to be secure in their persons, 

houses, papers, and effects," and would 

obliterate one of the most fundamental 

distinctions between our form of government, 

where officers are under the law, and the 

police-state where they are the law. 

Johnson, 333 U.S. at 17 (footnote omitted). 

 - 57 - 
 "It has long been held in Virginia that where an officer 

attempts an unlawful arrest, the officer is an aggressor which 

gives the arrestee the right to use self-defense to resist so 

long as the force used is reasonable." See Brown v. 

Commonwealth, 27 Va. App. 111, 116-17, 497 S.E.2d 527, 530 

(1998). This principle of law treats the unlawful arrest as an 

unauthorized touching and, thus, a battery against the attempted 

arrestee. Thus, the Supreme Court has held that where an officer 

attempts an unlawful arrest, the arrestee "could resist with such 

reasonable force as was necessary to repel that being exercised 

by the officer in that undertaking." Broaddus v. Standard Drug 

Co., 211 Va. 645, 652, 179 S.E.2d 497, 503 (1971). 

 The evidence proved that McCracken initially resisted being 

searched and then attempted to maneuver his way around the 

officer after the officer sought to arrest him. Because the 

arrest of McCracken was made after the police had unlawfully 

entered the home without a warrant, McCracken had a right to use 

reasonable force to resist any of the officer's conduct. The 

encounter escalated to a physical altercation only when the 

officer jumped onto McCracken's back. See Hill v. Commonwealth, 

37 Va. App. 1, 7, 533 S.E.2d 529, 532 (2001) (holding that 

striking an officer after being assaulted by the officer during 

an unlawful arrest was not excessive force). 

 The events that gave rise to the search and arrest all 

occurred within the home, after the officers had unlawfully 

entered the home and upon the officer's discovery of evidence 

within the home during that unlawful entry. This is precisely 

the circumstance the Supreme Court's decision in Payton barred by 

 - 58 - 
holding that "'physical entry of the home is the chief evil 

against which the wording of the Fourth Amendment is directed.'" 

445 U.S. at 585 (citation omitted). The rule in Payton was 

derived from the "overriding respect for the sanctity of the home 

that has been embedded in our traditions since the origins of the 

Republic." Id. at 601. By drawing a line at the entrance to a 

home, the Fourth Amendment protects the physical integrity of the 

home. As the Court noted in Johnson, "officers . . . thrust[ing] 

themselves into a home is . . . a grave concern not only to the 

individual but to a society which chooses to dwell in reasonable 

security and freedom from surveillance." 333 U.S. at 14. Based 

on the unlawful entry, McCracken was not unreasonable in his 

attempt to resist the unlawful arrest and did not use excessive 

force in resisting. 

 IV. 

 For these reasons, I would hold that the officer's 

warrantless entry into the residence violated the Fourth 

Amendment. That unlawful entry negated the officer's authority 

to make an arrest for events occurring inside the home. 

Therefore, I would reverse all the convictions and dismiss the 

indictments. See Alexander, 19 Va. App. at 675, 454 S.E.2d at 

41. 

 - 59 - 
Bumgardner, J., dissenting, in part, and concurring, in part. 

 I do not believe the police acted unreasonably and, 

therefore, conclude the trial court did not err. While I concur 

in the decision to affirm the convictions of assault and battery, 

I do not join that opinion. 

 Police officers responded to a domestic disturbance call 

from Teresa Fields because she wanted the defendant removed from 

her house. The defendant left voluntarily the first time. 

Ninety minutes later, Fields placed a second call to the 911 

emergency dispatcher because the defendant was returning to her 

house. When the officers responded, neighbors were screaming 

that the defendant was inside, and the officers heard him inside 

arguing. 

 If the first officer had not entered Fields' house 

immediately and investigated the domestic disturbance complaint, 

he would have been derelict. Before entering the front door, the 

officer had probable cause to believe the defendant was 

trespassing, Code § 18.2-119, and at least, reasonable suspicion 

of assault on a family member, Code § 18.2-57.2.10 

 After the officer entered, he saw the bulge in the 

defendant's pocket. The defendant did not cooperate and refused 

to put his hands on the wall. When the defendant finally 

 10 In recognition of the difficulty of protecting against 

domestic violence, the General Assembly increased the duties of 

law-enforcement officers when responding to such incidents. See

Code § 19.2-81.3. Police are entitled to arrest without a 

warrant when the violation does not occur in their presence. 

They must arrest "the primary physical aggressor" if they develop 

probable cause unless special circumstances exist. The police 

must make written report of any incident in which they have 

probable cause that "family abuse" occurred and written 

explanation of the special circumstances if they do not arrest. 

 - 60 - 
complied by putting his hands on the love seat, the officer 

patted the defendant's pocket. At that point, the officer was 

"authorized to take such steps as [are] reasonably necessary to 

protect [his and others'] personal safety and to maintain the 

status quo during the course of the stop." United States v. 

Hensley, 469 U.S. 221, 235 (1985). The officer felt a hard, 

rigid object, and when trying to remove it, the officer pulled 

out a bag of marijuana. From that point, the officer had 

probable cause to arrest for possession of marijuana, and the 

defendant had no right to resist. 

 I believe the decisions to reverse the trial court fail to 

view the evidence in the light most favorable to the 

Commonwealth. By failing to take the appropriate appellate 

perspective, each permits the lens of hindsight to distort its 

inspection of the reasonableness of the police response to this 

emergency call.

 - 61 -