Tuesday 1st 

 September, 1998. 

Christopher John Reittinger, Appellant, 

 against Record No. 0246-97-3 

 Circuit Court No. CR96000426-00 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

Before the Full Court 

On August 4, 1998 came the appellee, by counsel, and filed a 

petition praying that the Court set aside the judgment rendered herein 

on July 21, 1998, and grant a rehearing en banc thereof. 

On consideration whereof, the petition for rehearing en banc 

is granted, the mandate entered herein on July 21, 1998 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. 

 It is further ordered that the appellee shall file with the clerk of 

this Court ten additional copies of the appendix previously filed in 

this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Bumgardner 

Argued at Salem, Virginia 

CHRISTOPHER JOHN REITTINGER 

 OPINION BY 

v. Record No. 0246-97-3 JUDGE SAM W. COLEMAN III 

 JULY 21, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY 

George E. Honts, III, Judge 

 Malcolm G. Crawford for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Christopher John Reittinger was convicted in a bench trial 

for possession of marijuana. On appeal, Reittinger contends: 

(1) he was "seized" in violation of the Fourth Amendment by the 

officer's show of authority in asking for consent to search the 

vehicle after having indicated that Reittinger was free to leave, 

and (2) the evidence was seized as the result of an illegal frisk 

that violated the Fourth Amendment. We find that the officer's 

encounter with Reittinger after concluding the motor vehicle 

equipment investigation was consensual in nature and, therefore, 

did not implicate the Fourth Amendment. Assuming, without 

deciding, that the officer reasonably suspected from the bulge in 

Reittinger's pocket and from Reittinger's conduct that Reittinger 

was armed, we find that the officer's frisk violated the Fourth 

Amendment because, at the time of the frisk, the officer was not 

investigating suspected criminal activity or protecting the 
- 3 - 

public safety. Accordingly, we hold that the marijuana was 

seized as the result of an illegal frisk and that the trial court 

erred by admitting it into evidence. 

I. BACKGROUND

 Late one evening, Rockbridge County Police Officer Hugh 

Bolen stopped Reittinger's van when Bolen observed it being 

driven with an inoperable headlight. After giving Reittinger a 

verbal warning to have the headlight repaired, Bolen told 

Reittinger he was "free to go." Immediately thereafter, Bolen 

asked Reittinger if he had contraband, or drugs, or firearms in 

the vehicle. Reittinger eventually responded "no, that there 

wasn't anything illegal in the vehicle." Bolen then asked if he 

could search the vehicle for weapons or drugs. Reittinger 

"turned around in his seat and looked at his passenger[s] and 

. . . whispered something." Bolen repeated the question several 

times. Reittinger remained silent but, eventually, without being 

requested to do so, exited the vehicle. Bolen testified that he 

did not have any particular reason to suspect that Reittinger was 

engaged in criminal activity. 

 As Reittinger alighted from the vehicle, Bolen observed a 

bulge in Reittinger's front pocket. Bolen then frisked 

Reittinger's outer clothing because he felt it was "a safety 

issue, out there in the dark." Bolen felt a large, hard bulge in 

Reittinger's pocket, which he believed might have been a weapon. 

 Bolen asked Reittinger what was causing the bulge. Reittinger 
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did not answer and "tried to cover [the pocket] up." After Bolen 

told Reittinger, "you need to bring that out of your pocket," 

Reittinger pulled out a smoking device that contained marijuana 

residue. Reittinger was charged with possession of marijuana. 

 At trial, Reittinger filed a motion to suppress the 

marijuana evidence on the ground that Bolen had seized it in 

violation of the Fourth Amendment. The trial court ruled that 

Bolen's requesting consent to search the van immediately after 

investigating the equipment violation and telling Reittinger he 

was "free to go" would have led a reasonable person to believe he 

or she was being further detained and was not free to leave. 

Thus, the trial court ruled that Bolen had illegally detained 

Reittinger without a reasonable, articulable suspicion that he 

was engaged in criminal activity. The trial court found that 

Reittinger exited the van without being asked to do so, in a 

rural setting, at night, and after Bolen had asked for permission 

to search the van. The trial court further found that although 

Reittinger consented to the search of the van "[i]t is not 

exactly clear whether [Reittinger] finally consented to [the] 

search after he exited the van and before the pat down or after 

the pat down." Thus, the court made no finding of fact that 

Reittinger had consented to his van being searched when Officer 

Bolen frisked him for weapons. Based on these findings, the 

court ruled that, although Bolen unlawfully detained Reittinger 

after the initial investigation, Bolen articulated a reason to 
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suspect that Reittinger was armed and dangerous and, thus, that 

Bolen was justified in frisking Reittinger for the officer's own 

safety. The court denied Reittinger's motion to suppress and 

convicted him for possession of marijuana. 

II. ANALYSIS

 This appeal raises fundamental questions about the scope of 

the Fourth Amendment's protection against unreasonable searches 

and seizures. In resolving the questions presented, we examine: 

 (1) the nature and constitutional dimensions of the encounter 

from the time Bolen completed the headlight investigation until 

the frisk and (2) the constitutionality of the frisk. 

 On appeal, the defendant bears the burden of establishing 

that the trial court's denial of the motion to suppress was 

reversible error. See Greene v. Commonwealth, 17 Va. App. 606, 

608, 440 S.E.2d 138, 139-40 (1994). Whether a "seizure" occurred 

that implicated the Fourth Amendment and whether a police 

officer's protective weapons frisk was constitutionally valid 

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

appeal. See McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United 

States, 517 U.S. 690, 691 (1996)). "In performing such analysis, 

we are bound by the trial court's findings of historical fact 

unless plainly wrong or without evidence to support them. . . ." 

Id. (citing Ornelas, 517 U.S. at 699). 

A. Encounter After Investigative Traffic Stop
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 Reittinger contends, and the trial court ruled, that Bolen 

unlawfully seized Reittinger in violation of the Fourth Amendment 

by subjecting Reittinger to a "new and unrelated inquiry" 

immediately following the officer's investigation of the motor 

vehicle equipment violation. We hold that Bolen's conduct in 

asking questions and seeking permission to search the van without 

a reasonable and articulable basis for doing so did not 

constitute a "seizure." 

 A person is "seized" under the Fourth Amendment "only if, in 

view of all of the circumstances surrounding an incident, a 

reasonable person would have believed that he was not free to 

leave." Mendenhall v. United States, 446 U.S. 544, 554 (1980). 

In order for a seizure to occur, a police officer "must restrain 

a citizen's freedom of movement by the use of physical force or 

show of authority." Ford v. City of Newport News, 23 Va. App. 

137, 142, 474 S.E.2d 848, 850 (1996) (citing California v. 

Hodari D., 499 U.S. 621 (1991)). A "voluntary or consensual 

encounter between a police officer and a citizen does not 

implicate the Fourth Amendment as long as 'a reasonable person 

would understand that he or she could refuse to cooperate.'" 

Lawrence v. Commonwealth, 17 Va. App. 140, 144, 435 S.E.2d 591, 

594 (1993) (quoting United States v. Wilson, 953 F.2d 116, 121 

(4th Cir. 1991)). Whether a person is "free to leave" must be 

measured by an "objective standard -- looking to the reasonable 

man's interpretation of the conduct in question." Michigan v. 
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Chesternut, 486 U.S. 567, 574 (1988). 

 Viewed in the light most favorable to the Commonwealth, Fore 

v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980), 

the evidence established that Reittinger's encounter with Officer 

Bolen was consensual from the completion of the defective 

equipment investigation until the frisk and was not a "seizure" 

that implicated the Fourth Amendment. After completing the 

equipment investigation, Bolen admonished Reittinger to have the 

headlight repaired and told him he was "free to go." At the 

time, Officer Bolen was not physically restraining Reittinger in 

any manner and made no show of authority to indicate that 

Reittinger was not free to leave. Therefore, a reasonable person 

would have believed that the investigation had ended and that he 

or she was free to leave. See Wechsler v. Commonwealth, 20 Va. 

App. 162, 171, 455 S.E.2d 744, 748 (1995). 

 Officer Bolen's request for permission to search the van 

after telling Reittinger he was free to leave was not a show of 

authority that compelled Reittinger to consent to the search or 

to believe he had no choice but to stay and address Bolen's 

query. The officer did not draw his weapon, did not physically 

restrain Reittinger, and did not by show of force or authority 

restrict Reittinger's freedom of movement or indicate that 

Reittinger was not free to leave. See Baldwin v. Commonwealth, 

243 Va. 191, 199, 413 S.E.2d 645, 649 (1992) (noting that 

circumstances under which reasonable person may believe he was 
- 8 - 

not free to leave include, but are not limited to, "the 

threatening presence of several officers, the display of a weapon 

by an officer, some physical touching of the person, or the use 

of language or tone of voice indicating that compliance with the 

officer's request might be compelled"). Even though an 

individual may feel some trepidation during a consensual 

encounter with a police officer and some reluctance or discomfort 

in walking away from such an encounter, a police officer's 

conduct does not implicate the Fourth Amendment if the officer 

merely poses questions to an individual in a public place and the 

individual chooses to answer them. See Florida v. Royer, 460 

U.S. 491, 497 (1983); Buck v. Commonwealth, 20 Va. App. 298, 

301-02, 456 S.E.2d 534, 535 (1995). Without some indicated 

restraint, mere questioning by officers when a routine traffic 

stop is over and its purpose served does not amount to a seizure 

under the Fourth Amendment. See United States v. Sullivan, 138 

F.3d 126, 131 (4th Cir. 1998). "As long as the [individual] to 

whom questions are put remains free to disregard the questions 

and walk away, there has been no intrusion upon that person's 

liberty as would under the [Fourth Amendment] require some 

particularized and objective justification." Mendenhall, 446 

U.S. at 553-54. 

 Considering the totality of the circumstances, we hold that 

as a matter of law a reasonable person would have believed he or 

she was free to leave and could have declined to stay and answer 
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Bolen's questions.1

 Reittinger voluntarily remained at the scene 

after Bolen told him he was "free to go." Reittinger does not 

assert he was seized because he involuntarily consented to have 

his vehicle searched; he contends he was seized as a result of 

the officer's request to search his van after telling him he 

could go. We hold that Bolen did not "seize" Reittinger within 

the meaning of the Fourth Amendment merely by asking permission 

to search his vehicle. 

B. Protective Frisk

 We next consider the validity of Bolen's protective weapons 

frisk of Reittinger. The Fourth Amendment proscribes 

"unreasonable searches and seizures" by the government of its 

citizens and their effects. U.S. Const. amend. IV. It is well 

settled that an officer's protective frisk for weapons is an 

intrusion upon an individual's personal privacy and is a 

"seizure" that implicates the Fourth Amendment. See Adams v. 

Williams, 407 U.S. 143, 147 n.2 (1972); Toliver v. Commonwealth, 

23 Va. App. 34, 36, 473 S.E.2d 722, 724 (1996). Thus, we must 

determine whether Bolen's protective weapons frisk of Reittinger 

was reasonable under the circumstances. See Pennsylvania v. 

 

 1An increasing number of appeals present situations in which 

police officers routinely ask permission to do drug and weapon 

searches of motor vehicles following stops for minor traffic 

infractions. See, e.g., United States v. Lattimore, 87 F.3d 647 

(4th Cir. 1996) (en banc). Although a police officer's request 

to search a vehicle immediately following a completed traffic 

stop bears some degree of compulsion, without more, it is not a 

"seizure" for Fourth Amendment purposes. 
- 10 - 

Mimms, 434 U.S. 106, 108-09 (1977) (per curiam) ("The touchstone 

of [the Court's] analysis under the Fourth Amendment is always 

the reasonableness in all the circumstances of the particular 

government invasion of a citizen's personal security."). A 

determination as to the reasonableness of a particular police 

procedure depends "on a balance between the public interest and 

the individual's right to personal security free from arbitrary 

interference by law [enforcement] officers." United States v. 

Brignoni-Ponce, 422 U.S. 873, 878 (1975). 

 In Terry v. Ohio, 392 U.S. 1 (1968), the United States 

Supreme Court considered "whether it is always unreasonable for a 

[police officer] to seize a person and subject him to a limited 

search for weapons unless there is probable cause for arrest." 

392 U.S. at 22. The Court stated that "a police officer may in 

appropriate circumstances and in an appropriate manner approach a 

person for purposes of investigating possible criminal behavior 

even though there is no probable cause to make an arrest." Id.

at 22. It held that a police officer may lawfully "stop" an 

individual if the officer possesses a reasonable suspicion, based 

on specific and articulable facts, that the individual is or is 

about to be engaged in criminal activity. Id. at 30. Further, 

once the officer has lawfully detained a person for investigation 

and questioning, "he may conduct a limited pat-down search of the 

suspect's outer clothing to search for weapons if the officer 

reasonably believes, based on specific and articulable facts, 
- 11 - 

that the suspect might be armed and dangerous." Phillips v. 

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

(citing Terry, 392 U.S. at 30). Accordingly, under Terry, a 

police officer may conduct a protective frisk if he or she can 

"point to specific and articulable facts which, taken together 

with rational inferences from those facts," reasonably lead the 

officer to conclude: (1) that "criminal activity may be afoot," 

and (2) that the suspect "may be presently armed and dangerous." 

Landsdown v. Commonwealth, 236 Va. 204, 212, 308 S.E.2d 106, 112 

(1983) (quoting Terry, 392 U.S. at 21, 30). 

 Justice Harlan emphasized in his concurring opinion in Terry

that the Fourth Amendment generally does not permit a police 

officer to frisk an individual based solely upon the officer's 

reasonable suspicion that the individual is armed and dangerous 

but without a legitimate reason to suspect criminal activity. He 

stated: 

 [I]f the frisk is justified in order to 

protect the officer during an encounter with 

a citizen, the officer must first have 

constitutional grounds to insist on an 

encounter, to make a forcible stop. Any 

person, including a [police officer], is at 

liberty to avoid a person he considers 

dangerous. If and when a [police officer] 

has a right instead to disarm such a person 

for his own protection, he must first have a 

right not to avoid him but to be in his 

presence. That right must be more than the 

liberty (again, possessed by every citizen) 

to address questions to other persons, for 

ordinarily the person addressed has an equal 

right to ignore his interrogator and walk 

away; he certainly need not submit to a frisk 

for the questioner's protection. I would 

make it perfectly clear that the right to 
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frisk . . . depends upon the reasonableness 

of a forcible stop to investigate suspected 

crime. 

Terry, 392 U.S. at 32-33 (Harlan, J., concurring) (second 

emphasis added). Accord Adams, 407 U.S. at 146 ("So long as the 

officer is entitled to make a forcible stop, and has reason to 

believe that the suspect is armed and dangerous, he may conduct a 

weapons search limited in scope to this protective purpose." 

(emphasis added) (footnote omitted)). 

 As Justice Harlan's concurring opinion clarifies, the 

general purpose of a protective frisk is to facilitate the police 

officer's limited investigation of suspected criminal activity 

without fear or threat of violent reprisal by the suspect. See

Adams, 407 U.S. at 146. It would be unreasonable to allow an 

officer to conduct a protective frisk where the officer 

unnecessarily places himself or herself in a precarious situation 

by initiating a baseless encounter with an individual whom he or 

she considers armed and dangerous. See Wayne R. LaFave, Search 

and Seizure § 9.5(a) (2d ed. 1987). Thus, under the Fourth 

Amendment, the general rule is that a police officer may not 

approach and frisk an individual whom he or she reasonably 

believes may be armed and dangerous if the officer has no reason 

to suspect that the individual is also engaged in criminal 

activity.2

 See Toliver, 23 Va. App. at 36-37, 473 S.E.2d at 724; 

 

 2As one court has colorfully stated the rule: "No matter 

how appealing the cart may be, the horse must precede it." Gomez 

v. United States, 597 A.2d 884, 891 (D.C. App. 1991). 
- 13 - 

Commonwealth v. Couture, 552 N.E.2d 538, 540-41 (Mass. 1990); 

State v. Giltner, 537 P.2d 14, 17 (Haw. 1975); People v. Batino, 

367 N.Y.S.2d 784, 785 (1975). 

 Similarly, where an officer lawfully "stops" an individual, 

and through investigation dispels any reasonable suspicion that 

the individual may be engaged in criminal activity, the officer 

may not thereafter conduct a protective frisk for weapons, even 

if the officer reasonably suspects that the individual is 

presently armed and dangerous, unless subsequent circumstances 

renew the officer's reasonable belief that criminal activity may 

be afoot. See United States v. Thomas, 863 F.2d 622, 628 (9th 

Cir. 1988); State v. White, 856 P.2d 656, 662 (Utah Ct. App. 

1993); Coleman v. United States, 337 A.2d 767, 771-72 (D.C. App. 

1975); see also LaFave, supra, § 9.5(a) at 247. In such a 

situation, the police officer may allay any legitimate concern 

for his or her safety by discontinuing the encounter with the 

individual. But, an officer may not justify a protective search 

by using legitimate safety concerns to bootstrap his or her lack 

of sufficient suspicion of criminal activity. See id. Under the 

general rule of Terry, if the officer's justification to stop or 

detain a person dissipates, then a weapons frisk is 

constitutionally impermissible.3

 

 3The decision in United States v. Thomas is demonstrative. 

There, a police officer, after receiving a report describing two 

men suspected of passing counterfeit money, stopped a vehicle in 

which two possible suspects were riding. Thomas, 863 F.2d at 

624. After stopping the vehicle, the officer determined that the 

defendant "did not match the description of either of the 
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 In recent years, Virginia courts have recognized that in 

limited circumstances a police officer may lawfully frisk an 

individual whom he or she reasonably believes may be armed 

without a particularized suspicion that the subject of the frisk 

may be involved in any criminal activity. The Virginia Supreme 

Court upheld a protective frisk where the police officer lawfully 

"stopped" a vehicle suspecting that the operator was engaged in 

criminal activity and frisked a passenger whom he reasonably 

believed to be armed and dangerous. See Bethea v. Commonwealth, 

245 Va. 416, 420, 429 S.E.2d 211, 213 (1993) (citing Pennsylvania 

v. Mimms, 434 U.S. 106 (1977)).4 In Moore v. Commonwealth, 25 

(..continued) 

suspects." Id. at 628. After questioning the defendant as to 

why he was in the area and checking his identification, the 

officer asked Thomas whether he was carrying a weapon. When 

Thomas did not respond, the officer frisked Thomas, recovered a 

handgun, and arrested him for carrying a concealed weapon. Id.

at 624. The federal appeals court determined in Thomas that the 

officer's initial stop was lawful, finding that the defendant's 

initial appearance and proximity to the crime scene reasonably 

supported the officer's suspicion that he might be the 

counterfeiter. Id. at 626. However, the court found that the 

justification for the stop evaporated when the officer determined 

that Thomas did not fit the reported description of either 

suspect. Id. at 628. Because the officer lacked reasonable 

suspicion that Thomas was engaged in criminal activity, the court 

held that there was "no basis for the [officer's] subsequent 

detention and frisk." Id.

 4Two federal courts have found no Fourth Amendment violation 

where an officer frisked an individual prior to conducting a 

consensual search of the individual's home. See United States v. 

Brooks, 2 F.3d 838 (8th Cir. 1993); United States v. Flippin, 924 

F.2d 163 (9th Cir. 1991). In the present case, the trial court 

specifically found the evidence to be "unclear" as to whether 

Reittinger consented to Officer Bolen searching the van before he 

was frisked. Upon review of the record, without doing violence 

to the standard of review, we cannot say the court's finding of 

historical fact was plainly wrong or unsupported by the evidence, 

and, thus, we are bound by the trial court's findings. See
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Va. App. 277, 286, 487 S.E.2d 864, 868-69 (1997), we held that an 

officer could lawfully frisk a pedestrian, who was stranded on an 

interstate highway bridge, prior to transporting him from the 

highway in the back seat of a police cruiser. See also State v. 

Evans, 618 N.E.2d 162 (Ohio 1993); State v. Vasquez, 807 P.2d 520 

(Ariz. 1991). Most recently, this Court held that police 

officers did not violate the Fourth Amendment when, upon seeing 

two drug trafficking suspects enter a large crowd of bystanders 

on a public street, the officers ordered the bystanders to lie on 

the ground and frisked one bystander whose furtive actions caused 

the officer to suspect the bystander was armed and dangerous. 

See Welshman v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d 

___, ___ (1998) (en banc) (citing Maryland v. Wilson, 117 S. Ct. 

882, 886 (1997)). 

 These recent developments in our Fourth Amendment case law 

share a common denominator. In each case, the police officer was 

required to encounter the subject of the frisk in the course of 

discharging his or her official duties to investigate suspected 

criminal activity or to protect the public safety. The officers 

not only had a "right not to avoid" a possibly armed and 

(..continued) 

McGee, 25 Va. App. at 197-98, 487 S.E.2d at 461. Because the 

Commonwealth has the burden of establishing that circumstances 

warranted the frisk, see Coolidge v. New Hampshire, 403 U.S. 443, 

454-55 (1971), and the record does not establish that Reittinger 

consented to the search of the van before Officer Bolen frisked 

him, we do not consider the question of whether a weapons frisk 

is justified as a reasonable, precautionary measure when the 

officer is conducting a consensual vehicle search. 
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dangerous individual but had the duty to perform their 

investigative or protective functions in the individual's 

presence. Terry, 392 U.S. at 32 (Harlan, J., concurring). 

Indeed, in Moore, we stated: Terry recognized the reasonableness of a 

minimal intrusion on personal privacy to 

insure the safety of an officer 

investigating, in a public place, a 

reasonable suspicion of lawbreaking. Other 

authorities have recognized the 

reasonableness of such intrusions to insure 

the safety of officers performing their 

duties under other circumstances. 

25 Va. App. at 286, 487 S.E.2d at 869 (relying on police 

officer's "duty" as community caretaker to transport stranded 

pedestrian from interstate highway bridge) (emphasis added). 

Accordingly, in order to conduct a protective frisk under the 

current case law, a police officer must legitimately be in the 

presence of the subject of the frisk in the course of performing 

the officer's civil duties to investigate suspected criminal 

activity or to protect the public safety. See LaFave, supra, 

§ 9.5(a) at 247. 

 In the present case, once Officer Bolen had completed the 

investigation of Reittinger's defective equipment violation, he 

was no longer required, by virtue of his civil duties, to remain 

in Reittinger's presence. Bolen testified that after he 

completed the headlight investigation he did not suspect that 

Reittinger was otherwise engaged in criminal activity.5 

 

 5Code § 18.2-308(D) provides that it is unlawful to carry a 

weapon concealed from common observation unless a person has a 
- 17 - 

Moreover, the facts demonstrate that the officer was neither 

investigating any suspected criminal activity in proximity to 

Reittinger nor was he acting to secure the safety of public 

citizens. Rather, Bolen arbitrarily requested permission to 

search Reittinger's vehicle, a question he randomly and "commonly 

ask[s] people [after] a traffic stop." Therefore, assuming Bolen 

had a reasonable suspicion that Reittinger may have been armed 

and dangerous, we hold that Bolen's frisk violated the Fourth 

Amendment because, at the time of the frisk, he was not compelled 

to remain in Reittinger's presence by his civil duties to 

investigate crime or to protect public safety. 

 For the foregoing reasons, we hold that the trial court 

erred in denying the motion to suppress the marijuana seized 

pursuant to Bolen's unlawful frisk. See Zimmerman v. 

Commonwealth, 234 Va. 609, 613, 363 S.E.2d 708, 710 (1988). 

Accordingly, we reverse the conviction and dismiss the warrant. 

 Reversed and dismissed.

(..continued) 

permit to do so. Thus, the fact that Officer Bolen may have 

believed that Reittinger was armed would not be a reason to 

suspect that he was illegally carrying a concealed weapon, and, 

in that regard, committing a crime. In Virginia, the fact that a 

person may be armed does not provide a reason to suspect that the 

person is violating the law. See, e.g., Couture, 552 N.E.2d at 

540; cf. Commonwealth v. Spencer, 21 Va. App. 156, 160, 462 

S.E.2d 899, 902 (1995) (lack of city or county decal insufficient 

basis to stop). 
- 18 - 

Benton, J., concurring. 

 I concur in the opinion except for the holding in Part II(A) 

that Reittinger was not seized when the officer began his inquiry 

about drugs and guns. 

 "[S]topping an automobile and detaining its occupants 

constitutes a 'seizure' within the meaning of [the Fourth 

Amendment] even though the purpose of the stop is limited and the 

resulting detention quite brief." Delaware v. Prouse, 440 U.S. 

648, 653 (1979). The evidence proved that "probably no more than 

a second or two" after the officer told Reittinger he was "free 

to go," the officer asked Reittinger "if he had any drugs or 

weapons in the vehicle." 

 The inquiry concerning the drugs or weapons was an 

unconstitutional extension of the original traffic stop. 

Although the reason for the initial stop had ended, the officer 

continued the detention by making inquiries unrelated to the 

initial stop. The evidence does not prove whether the officer 

had returned Reittinger's vehicle registration when he began the 

inquiry about the drugs and weapons. Thus, I would uphold the 

trial judge's ruling that the officer's inquiry concerning drugs 

and guns was so immediate that a reasonable person would not have 

believed he or she was free to leave. See Florida v. Royer, 460 

U.S. 491, 502 (1982). The officer's immediate transition into 

the inquiry was so seamless that a reasonable person would not 

have believed the initial seizure had ended. See id. at 497. 
- 19 - 

 Therefore, I would hold that the inquiry concerning the 

drugs and weapons constituted an unlawful seizure under the 

Fourth Amendment because the officer had completed the equipment 

investigation and then subjected the defendant to a new and 

unrelated inquiry under circumstances such that a reasonable 

person would not have believed the initial seizure had ended or 

that he or she was free to leave. 
- 20 - 

Bumgardner, J., dissenting. 

 I respectfully dissent from Part II(B) of the opinion. I do 

not believe that during a lawful encounter a police officer is 

forbidden to conduct a carefully limited frisk for weapons unless 

the officer has a reasonable suspicion that the person is both 

armed and dangerous, and is engaged in criminal activity. 

 This case involved a consensual encounter following 

completion of a lawful stop for a traffic offense. The officer 

asked for permission to search the vehicle. The defendant 

suddenly and unexpectedly emerged from the vehicle before saying 

whether he would consent. The officer was entitled to remain 

until the defendant responded. If he gave consent, the officer 

was entitled to conduct the search. I do not believe the law 

requires that the officer carry it out under dangerous 

conditions. See Michigan v. Long, 463 U.S. 1032, 1049 (1983). 

 In the precarious moments as the defendant emerged, the 

officer acquired a reasonable suspicion that the defendant might 

be armed. He observed a bulge in the defendant's right hand 

front pocket. He asked the defendant what it was. On receiving 

no answer but on seeing the defendant move his hand toward the 

bulge and attempt to cover it up, the officer for the first time 

touched the defendant. He felt a large, hard bulge and believed 

it could be a weapon. The defendant continued to evade the 

officer's question about what was in his pocket, so the officer 

ordered him to remove the object. It was a smoking device with 
- 21 - 

marijuana residue and gave the officer probable cause to arrest 

the defendant. 

 Under all the circumstances of this case the actions of the 

officer were reasonable, and I would hold that they were a 

permissible interference with the defendant's personal security 

as permitted under Terry v. Ohio, 372 U.S. 1 (1968), and its 

progeny. See United States v. Baker, 78 F.3d 135, 137 (4th Cir. 

1996). The officer was properly before the defendant, and he was 

permitted to continue the voluntary encounter. While doing so, 

he developed a reasonable suspicion that the defendant might be 

armed, although he did not have a reasonable suspicion that the 

defendant was engaged in criminal activity. "The law does not 

expect a police officer must gamble on turning away from a 

possible danger and chance taking a bullet in the back . . . ." 

Lansdown v. Commonwealth, 226 Va. 204, 212, 308 S.E.2d 106, 111 

(1983), cert. denied, 465 U.S. 1104 (1984). I would affirm the 

conviction.