COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Elder 

Argued at Salem, Virginia 

FREDRICK SHAFT PRICE 

 MEMORANDUM OPINION* BY 

v. Record No. 1628-99-3 JUDGE SAM W. COLEMAN III 

 OCTOBER 10, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Joseph R. Winston (Elwood Earl Sanders, Jr., 

Appellate Defender; Public Defender 

Commission, on briefs), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Fredrick Shaft Price was convicted in a bench trial of 

possession of cocaine with intent to distribute and felonious 

assault and battery of a police officer. On appeal, Price 

argues that the trial court erred by denying his motion to 

suppress the cocaine and that the evidence is insufficient to 

support his assault and battery conviction. We disagree and 

affirm the convictions. 
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I. BACKGROUND

 Police Officers Matthew Walker and J.W. McLaughlin were on 

foot patrol at approximately 10:30 p.m. when they encountered a 

vehicle with its rear passenger door open "sitting in the middle 

of the street in the lane of traffic." The vehicle was 

approximately three or four feet from the curb. The officers 

observed another car approach, which had to go around the 

vehicle because it was stopped in the road. The officers 

observed a person get in the stopped vehicle and the vehicle 

proceeded toward them. The officers stopped the driver of the 

vehicle, intending to give the driver a citation for impeding 

the flow of traffic. 

 Officer McLaughlin stood beside the driver's door and 

gathered information from the driver. Officer Walker went to 

the passenger side of the vehicle where another individual was 

sitting in the front passenger seat. The defendant, Price, was 

sitting in the back seat behind the passenger. Officer Walker 

noticed what he testified to as an open beer bottle protruding 

from a brown paper bag between Price's legs. Walker asked Price 

for the bottle and, as Price handed Walker the bottle, Price 

opened the back door of the vehicle. Walker closed the door and 

instructed Price to roll down the window so that Walker could 

obtain information from Price as to his name and social security 

number. While Walker was attempting to obtain the information 
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from Price, Price "tried to jump out of the car and threw the 

door open." Walker, who was standing "directly in front of the 

door" speaking with the defendant, was "struck" by the door as 

it "flew open" and was "knocked back." Walker "grabbed hold of 

the door" to keep from falling. He tried to shut the car door, 

but Price was "already half-way out." Walker "grabbed hold" of 

Price as Price exited the car and tried to flee, and a struggle 

ensued between them. Walker and McLaughlin were able to subdue 

Price and handcuff him. Price was arrested for assaulting a 

police officer. 

 Walker conducted a search incident to arresting Price and 

found $198 in cash in Price's pants pocket and two baggies 

containing an off-white rock-like substance in his jacket 

pocket. Officer McLaughlin searched Price's book bag and found 

digital scales and several razors. The rock-like substance was 

analyzed and determined to be cocaine. 

II. ANALYSIS

A. Motion to Suppress

Price argues that the trial court erred by denying his 

motion to suppress. He argues that the officers had no 

reasonable basis to suspect that beer was in the bottle until 

after they seized it. In other words, he claims that the 

evidence was insufficient to cause a police officer to 

reasonably suspect that he possessed an open container of beer. 
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Accordingly, Price asserts that when Walker demanded the bottle, 

that action constituted an illegal search and seizure for Fourth 

Amendment purposes, which action was prior to the time the 

officer had reason to suspect that the bottle contained beer. 

Additionally, Price argues, even if the officer had reason to 

suspect that Price possessed an open container of beer, a 

violation of the open container ordinance is a misdemeanor not 

punishable by confinement and, therefore, under Knowles v. Iowa, 

525 U.S. 113 (1998), the officer's request that Price remain in 

the vehicle after the bottle was seized constituted an unlawful 

detention which led to the unlawful search which led to the 

discovery of the cocaine.1 

 When we review a trial court's denial of a suppression 

motion, "[w]e view the evidence in a light most favorable to 

. . . the prevailing party below, and we grant all reasonable 

inferences fairly deducible from that evidence." Commonwealth 

v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991) 

(citation omitted). "[W]e are bound by the trial court's 

 1

 On appeal, Price "assumes," without conceding, that the 

Danville ordinance, prohibiting an open alcoholic beverage 

container in public in Danville, prohibits possession of an open 

container in a vehicle on a public street. He does not contend 

on appeal that his possession of an open container of beer would 

not be a violation of the Danville ordinance. Accordingly, we 

are not called upon to, and do not, decide whether possession of 

an open container of beer by a passenger in the back seat of a 

car on a public street violates Danville's open container 

ordinance. 
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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) (citing Ornelas 

v. United States, 517 U.S. 690, 699 (1996)). "However, we 

consider de novo whether those facts implicate the Fourth 

Amendment and, if so, whether the officers unlawfully infringed 

upon an area protected by the Fourth Amendment." Hughes v. 

Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155, 159 (2000) 

(en banc) (citing McGee, 25 Va. App. at 198, 487 S.E.2d at 261). 

 "A warrantless search is per se unreasonable and violative 

of the Fourth Amendment of the United States Constitution, 

subject to certain exceptions." Tipton v. Commonwealth, 18 Va. 

App. 370, 373, 444 S.E.2d 1, 3 (1994) (citation omitted). 

However, searches made by law enforcement officers incident to 

arrest are permitted as an exception to the warrant requirement. 

See United States v. Robinson, 414 U.S. 218, 235 (1973). In 

Robinson, the United States Supreme Court noted that the 

authority to conduct a search incident to arrest is based on the 

need to disarm the suspect in order to take him into custody and 

the need to preserve evidence for later use at trial. See id.

at 234. The Court stated that a custodial arrest involves 

"danger to an officer" because of "the extended exposure which 

follows the taking of a suspect into custody and transporting 

him to the police station." Id. at 234-35. 
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 Here, the officers lawfully stopped the vehicle to issue 

the driver a citation for impeding the flow of traffic. Viewing 

the evidence in the light most favorable to the Commonwealth, 

the evidence shows that, while Walker was standing outside the 

passenger-side door, he observed what he perceived was an open 

beer bottle. Walker testified that when he approached the 

passenger-side door, he "noticed [Price] with a beer between his 

legs." Upon seeing the clear bottle protruding from the bag, 

Walker readily recognized the object as an open Corona beer 

bottle. Walker described the bottle and what it contained. 

Although Price contends that, upon viewing the record as a 

whole, it is apparent that the officer was not aware that the 

bottle contained beer until after he seized and examined it, 

from our reading of the record, in the light most favorable to 

the Commonwealth, that conclusion does not necessarily follow. 

Based on the foregoing reading of the record, the officer had 

reasonable suspicion that Price had an open container of beer 

between his legs. Therefore, the officer was lawfully permitted 

to detain Price while he investigated the ordinance violation. 

See Terry v. Ohio, 392 U.S. 1 (1968). "'[I]f there are 

articulable facts supporting a reasonable suspicion that a 

person has committed a criminal offense, that person may be 

stopped in order to identify him, to question him briefly, or to 

detain him briefly while attempting to obtain additional 
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information.'" Parker v. Commonwealth, 255 Va. 96, 104, 496 

S.E.2d 47, 52 (1998) (quoting Hayes v. Florida, 470 U.S. 811, 

816 (1985)). Thus, regardless of the fact that Walker could not 

search Price incident to an offense for which he only could 

issue a citation, see Knowles, 525 U.S. 113, the officer could 

lawfully detain Price to investigate the Danville ordinance 

violation and to issue a summons. 

 In addition, the officer was permitted to briefly detain 

Price, as a passenger in the vehicle, pending the completion of 

the traffic stop of the vehicle and the driver. See Harris v. 

Commonwealth, 27 Va. App. 554, 561-63, 500 S.E.2d 257, 260-61 

(1998) (holding that law enforcement officers are permitted, 

following a lawful traffic stop, to detain the occupants of the 

vehicle, pending the completion of the traffic stop); see also

Hatcher v. Commonwealth, 14 Va. App. 487, 491-92, 419 S.E.2d 

256, 258-59 (1992) (holding that in effecting a traffic stop, an 

officer, to ensure his safety and to maintain control of a 

potentially hazardous situation, may briefly detain not only the 

driver but the passengers as well). In Maryland v. Wilson, 519 

U.S. 408, 415 (1997), the United States Supreme Court held that 

"an officer making a traffic stop may order passengers to get 

out of the car pending completion of the stop." The Court 

reasoned that: 

danger to an officer from a traffic stop is 

likely to be greater when there are 
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passengers in addition to the driver in the 

stopped car. While there is not the same 

basis for ordering the passengers out of the 

car as there is for ordering the driver out, 

the additional intrusion on the passenger is 

minimal. 

Id. at 414-15. In Wilson, the Court extended its holding from 

Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam), in 

which it held that "a police officer may as a matter of course 

order the driver of a lawfully stopped car to exit his vehicle," 

to passengers of the vehicle. 519 U.S. at 410. The Court in 

Wilson found that the "same weighty interest in officer safety 

is present regardless of whether the occupant of the stopped car 

is a driver or passenger." Id. at 413. 

 Thus, Walker lawfully detained Price by directing that he 

remain in the vehicle because he was entitled to do so while he 

investigated the open container violation and because, under the 

circumstances, he could require as a safety precaution that 

Price remain in the vehicle while the driver was being issued a 

citation. Because Walker's intrusion on Price's privacy rights 

and freedom of movement was minimal when weighed against the 

officers' safety, the brief detention was lawful.

After Walker shut the car door, effectively ordering him to 

remain in the vehicle, Price "threw" the door open a second 

time, hitting Walker with the car door as Price attempted to 

leap out of the car. Thereafter, Price was subdued and 

handcuffed for assaulting a police officer with the car door. 
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The officer did not search Price incident to issuing him a 

citation for having an open alcoholic beverage container. 

Rather, the officer searched Price incident to his lawful arrest 

pursuant to Code § 18.2-57(C) for felonious assault of a police 

officer. See Robinson, 414 U.S. at 235. Accordingly, we hold 

that the trial court did not err by denying Price's motion to 

suppress the cocaine. 

B. Sufficiency of the Evidence

 Price argues that the evidence is insufficient to support his 

conviction for assault and battery. Price, relying on Haywood v. 

Commonwealth, 20 Va. App. 562, 458 S.E.2d 606 (1995), argues that 

the evidence failed to show that he had the requisite intent. He 

asserts that he was merely attempting to flee the scene. 

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. Commonwealth, 

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. 

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). 

"The judgment of a trial court sitting without a jury is entitled 

to the same weight as a jury verdict, and will not be disturbed on 

appeal unless plainly wrong or without evidence to support it." 

Beck v. Commonwealth, 2 Va. App. 170, 172, 342 S.E.2d 642, 643 

(1986) (citations omitted). 
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 To sustain a conviction under Code § 18.2-57(C), the 

Commonwealth must prove that Price assaulted an individual that he 

knew or had reason to know was a police officer engaged in the 

performance of his duties. "An assault and battery is an 

unlawful touching of another. It is not necessary that the 

touching result in injury to the person. Whether a touching is 

a battery depends on the intent of the actor, not on the force 

applied." Gnadt v. Commonwealth, 27 Va. App. 148, 151, 497 

S.E.2d 887, 888 (1998) (citation omitted). "'Intent is a state 

of mind that may be proved by an accused's acts or by his 

statements and that may be shown by circumstantial evidence.'" 

Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74 

(1995) (citations omitted). "[A] person is presumed to intend the 

immediate, direct, and necessary consequences of his voluntary 

act." Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 

810 (1977) (citation omitted). 

 Price's reliance on Haywood is misplaced. In Haywood, the 

defendant had a verbal altercation with another individual at a 

park. After the altercation, the defendant got into his truck 

and sped off toward the park exit. The victim promptly called 

the police. Three officers in separate vehicles tried to stop 

the defendant, who was traveling down the middle of the road at 

a high rate of speed. Two officers, individually, set up 

roadblocks by placing their vehicles in the defendant's path. 
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Each time the defendant approached a roadblock, he failed to 

slow down. The officers had to take evasive action to avoid a 

collision. The defendant was convicted of two counts of 

attempted capital murder of a police officer. We reversed the 

convictions, finding that the Commonwealth's evidence failed to 

exclude the reasonable hypothesis of innocence, that being the 

defendant was merely attempting to avoid apprehension. We 

noted, however, that "[t]here was no evidence that [the 

defendant] ever swerved or aimed his truck to hit the police 

cars when they pulled out of his path or that he turned his 

truck around in an attempt to hit the police cars after passing 

by them." Id. at 567, 458 S.E.2d at 608-09. 

 Here, the evidence viewed in the light most favorable to the 

Commonwealth proves that, although Price attempted to flee, he 

"threw the door open," striking Walker who was standing directly 

in front of the door. See Moody v. Commonwealth, 28 Va. App. 

702, 708, 508 S.E.2d 354, 357 (1998) (finding that, although the 

defendant "plainly sought to flee," the evidence also proved 

that he had the further intent to run down the victim with his 

vehicle in the process of fleeing). Because Walker was directly 

in front of the door, the only possible way Price could have 

exited the car through the door was by first striking Walker. The 

fact finder could reasonably infer that Price intended to strike 

Walker with the car door in order to flee the scene. We, 
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therefore, find that the evidence is sufficient to support the 

conviction. 

 Accordingly, we affirm the trial court's ruling denying 

Price's motion to suppress and affirm his conviction for felonious 

assault and battery of a police officer. 

Affirmed.