Present: Kinser, C.J., Hassell, Lemons, Goodwyn, and Millette, 

JJ., and Lacy and Koontz, S.JJ.1

COMMONWEALTH OF VIRGINIA 

 OPINION BY 

v. Record No. 092561 JUSTICE LEROY F. MILLETTE, JR. 

 April 21, 2011 

COREY TAYVON SMITH 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we address whether a frisk of a passenger 

conducted during a valid traffic stop was supported by 

reasonable suspicion based upon an alert by a police computer 

system that the passenger was “probably armed and a narcotics 

seller/user.” 

BACKGROUND

 Corey Tayvon Smith was a passenger in a vehicle stopped on 

September 18, 2007 by Richmond police officers, Robert Hedman 

and Steven Moore, for a broken rear brake light. The officers 

asked the driver and Smith for their identification and 

processed that information using the Richmond police database 

known as PISTOL (Police Information System Totally On Line), 

which was accessed through a computer in the police patrol car. 

The PISTOL database returned an “alert” stating that Smith was 

“probably armed and a narcotics seller/user.” Upon receiving 

 1

 Former Chief Justice Hassell presided and participated in 

the hearing and decision of this case before his death on 

February 9, 2011; Justice Koontz participated in the hearing and 

decision of this case prior to the effective date of his 

retirement on February 1, 2011; Justice Kinser was sworn in as 

Chief Justice on February 1, 2011. 
the PISTOL alert, Officer Moore asked Smith to “step out” of the 

vehicle and Smith complied. Smith denied having any weapons or 

drugs on his person in response to Officer Moore’s inquiry. 

Officer Moore stated that he was going to pat Smith down to make 

sure he did not have any weapons. Smith replied to Officer 

Moore, “[Y]ou’re not going to search me.” During the pat down, 

Officer Moore felt a gun in Smith’s front left pocket. Officer 

Moore retrieved a .38 caliber “two-shot Derringer” from Smith’s 

pocket. 

 Smith was arrested and charged with possession of a firearm 

by a convicted felon in violation of Code § 18.2-308.2. Prior 

to trial, Smith filed a motion to suppress the evidence obtained 

as a result of the pat down arguing that the search, based 

solely on the information obtained from the PISTOL database, was 

unreasonable and in violation of the Fourth Amendment to the 

United States Constitution. During the suppression hearing, 

Detective Timothy Neville testified that he obtained a warrant 

on October 18, 2006 – eleven months before the incident at issue 

in this case – for Smith’s arrest for possession of a firearm by 

a convicted felon. Detective Neville further testified that 

Officer Roger Harris arrested Smith on the warrant and placed 

the arrest information in the PISTOL system. Detective Neville 

stated that this information would have caused the alert 

“probably armed” to be put into the PISTOL system. 

2
 Smith argued that for a frisk to be lawful, it must be 

based upon reasonable suspicion of present criminal activity. 

Smith continued: 

If this were to be allowed, basically anybody that’s 

been convicted of a firearm offense within maybe a 

certain period of time, can be patted down with 

absolutely no other indication of suspicion for any 

other criminal activity any time the police come into 

contact with them. And I would suggest to the Court 

that that has to be clearly wrong. 

 In response, the Commonwealth argued that because PISTOL is 

the police’s own system, “there is inherent[] [re]liability 

[and] that [the police] should be able to rely on [PISTOL 

alerts] when they are out in the field doing their work.” The 

Commonwealth further asserted the police should be permitted to 

use PISTOL alerts not only for determining whether criminal 

activity is afoot, but in order to protect themselves. 

 After hearing argument from counsel and taking the motion 

under advisement, the trial court denied Smith’s motion to 

suppress, stating: 

The Court believes that under the circumstances of the 

search, the stop being appropriate, and there not 

being any challenge to the stop, and the officer 

receiving information with regards to the fact that 

the person had been known to carry firearms, did not 

act impermissibly in conducting a pat-down in the 

search, and the same was appropriate for purposes of 

the officer’s safety. 

 Smith entered a conditional guilty plea to the charge. At 

the hearing for the entry of the plea, the Commonwealth 

3
introduced a criminal conviction order showing that Smith had 

previously been convicted of both possession of a firearm by a 

person convicted of a felony, with an offense date of October 

18, 2006, and possession of cocaine with intent to distribute, 

with an offense date of March 13, 2007. 

 On appeal to the Court of Appeals, Smith asserted that the 

trial court erred in denying his motion to suppress. The Court 

of Appeals agreed and reversed his conviction. Smith v. 

Commonwealth, 55 Va. App. 30, 54, 683 S.E.2d 316, 328 (2009). 

In considering whether Officers Hedman and Moore had reasonable 

suspicion to frisk Smith, the Court of Appeals held that the 

holding of United States v. Hensley, 469 U.S. 221, 229-33 

(1985), “permits imputation of the knowledge of the officers who 

entered the information in the police department’s PISTOL system 

to Officers Hedman and Moore.” Smith, 55 Va. App. at 42-43, 683 

S.E.2d at 322. According to the Court of Appeals, 

[t]he officers who entered the data into PISTOL were 

not shown to have done so based on any more 

information than that [Smith] had been arrested for 

possession of a firearm by a convicted felon for an 

incident that had occurred eleven months earlier and 

possession of cocaine with an intent to distribute for 

an incident that had occurred six months earlier. 

Id. at 54, 683 S.E.2d at 328. 

Even though knowledge of the two arrests was imputed to 

Officers Hedman and Moore, the Court of Appeals concluded that 

“in the absence of some contemporaneous indication that the 

4
individual might be carrying a weapon, these facts do not 

provide reasonable suspicion to believe he may be presently

armed and dangerous.” Id. at 46, 683 S.E.2d at 324. 

We awarded the Commonwealth this appeal. 

DISCUSSION

In its appeal to this Court, the Commonwealth raised a 

number of assignments of error generally asserting that the 

PISTOL alert combined with the public’s interest in officer 

safety qualified as sufficient reasonable suspicion to conduct a 

pat down search for weapons under Terry v. Ohio, 392 U.S. 1 

(1968). In our view, the record supports the conclusion that 

Officers Hedman and Moore had reasonable suspicion to justify 

the frisk.2

The standard of review in this case is well settled. 

In reviewing the denial of a motion to suppress 

evidence claiming a violation of a person’s Fourth 

Amendment rights, we consider the facts in the light 

most favorable to the Commonwealth, the prevailing 

party at trial. The burden is on the defendant to 

show that the trial court committed reversible error. 

We are bound by the trial court’s factual findings 

unless those findings are plainly wrong or unsupported 

by the evidence. We will review the trial court’s 

application of the law de novo. 

Jones v. Commonwealth, 279 Va. 665, 670, 691 S.E.2d 801, 803 

(2010). 

 2

 Having reached this conclusion, we need not address other 

issues raised by the Commonwealth.

5
As an initial matter, it is undisputed that the traffic 

stop was valid. The only issue in this case is whether the 

subsequent frisk was supported by reasonable suspicion. 

Under settled constitutional principles, once a law 

enforcement officer has conducted a valid traffic stop, the 

officer is justified in conducting a frisk of the person for 

weapons if the officer reasonably suspects that the person 

stopped is armed and dangerous. Arizona v. Johnson, 555 U.S. 

___, ___, 129 S.Ct. 781, 784 (2009). In Johnson, the Court 

clarified that Terry stop and frisk principles apply to traffic 

stops: 

[I]n a traffic-stop setting, the first Terry condition 

– a lawful investigatory stop--is met whenever it is 

lawful for police to detain an automobile and its 

occupants pending inquiry into a vehicular violation. 

The police need not have, in addition, cause to 

believe any occupant of the vehicle is involved in 

criminal activity. To justify a patdown of the driver 

or a passenger during a traffic stop, however, just as 

in the case of a pedestrian reasonably suspected of 

criminal activity, the police must harbor reasonable 

suspicion that the person subjected to the frisk is 

armed and dangerous. 

Id. at ___, 129 S.Ct. at 784. 

In explaining the officer’s authority to conduct such a 

frisk, the Supreme Court has also stated: 

The officer need not be absolutely certain that the 

individual is armed; the issue is whether a reasonably 

prudent man in the circumstances would be warranted in 

the belief that his safety or that of others was in 

danger. And in determining whether the officer acted 

reasonably in such circumstances, due weight must be 

6
given, not to his inchoate and unparticularized 

suspicion or “hunch,” but to the specific reasonable 

inferences which he is entitled to draw from the facts 

in light of his experience. 

Terry, 392 U.S. at 27 (citations omitted). 

 The Supreme Court recently reiterated its recognition that 

“traffic stops are especially fraught with danger to police 

officers.” Johnson, 555 U.S. at ___, 129 S.Ct. at 786 (internal 

quotation marks omitted). Considering the danger posed to 

officers during traffic stops, the Supreme Court has held that 

“once a motor vehicle has been lawfully detained for a traffic 

violation, the police officers may order the driver to get out 

of the vehicle without violating the Fourth Amendment’s 

proscription of unreasonable searches and seizures.” 

Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977). 

 Twenty years later, the Supreme Court extended the Mimms

rule to passengers, holding that an officer may order passengers 

to get out of the vehicle during a valid traffic stop. Maryland 

v. Wilson, 519 U.S. 408, 415 (1997). In Wilson, the Court 

recognized 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. The Court emphasized that 

the risk of a violent encounter during a traffic stop “stems not 

from the ordinary reaction of a motorist stopped for a speeding 

violation, but from the fact that evidence of a more serious 

7
crime might be uncovered during the stop.” Id. at 414. Lastly, 

the Supreme Court has stated that “officers who conduct routine 

traffic stop[s] may perform a pat-down of a driver and any 

passengers upon reasonable suspicion that they may be armed and 

dangerous.” Johnson, 555 U.S. at ___, 129 S.Ct. at 787 

(internal quotation marks omitted). 

In Terry, the United States Supreme Court, in announcing 

the “stop and frisk” rule, made this statement relevant to 

officer safety: 

Certainly it would be unreasonable to require that 

police officers take unnecessary risks in the 

performance of their duties. American criminals have 

a long tradition of armed violence, and every year in 

this country many law enforcement officers are killed 

in the line of duty, and thousands more are wounded. 

Virtually all of these deaths and a substantial 

portion of the injuries are inflicted with guns and 

knives. 

 In view of these facts, we cannot blind ourselves 

to the need for law enforcement officers to protect 

themselves and other prospective victims of violence 

in situations where they may lack probable cause for 

an arrest. When an officer is justified in believing 

that the individual whose suspicious behavior he is 

investigating at close range is armed and presently 

dangerous to the officer or to others, it would appear 

to be clearly unreasonable to deny the officer the 

power to take necessary measures to determine whether 

the person is in fact carrying a weapon and to 

neutralize the threat of physical harm. 

Terry, 392 U.S. at 23-24. 

In the context of a traffic stop in which multiple 

individuals were present in the vehicle, the officer’s knowledge 

8
of the driver’s, or the occupants’, prior criminal history is 

highly relevant in determining whether the officer had 

reasonable suspicion to conduct a pat down for his or her 

safety, particularly when that prior criminal history included 

weapons and dangerous narcotics violations. In this case, after 

conducting a valid traffic stop, Officers Hedman and Moore were 

alerted via the PISTOL system that Smith was “probably armed and 

a narcotics seller/user.” We agree with the Court of Appeals 

that the knowledge of the officers who entered the criminal 

history into the PISTOL system is imputed to Officers Hedman and 

Moore for purposes of assessing whether they had reasonable 

suspicion to frisk Smith. Smith v. Commonwealth, 55 Va. App. 

30, 42-43, 683 S.E.2d 316, 322-23 (2009); see also United States 

v. Hensley, 469 U.S. 221, 229-33 (1985). 

In Hensley, the United States Supreme Court addressed 

whether police officers may stop an individual who is the 

subject of a “wanted flyer” while they attempt to find out if an 

arrest warrant had been issued. 469 U.S. at 223. The Court 

held that where officers issue a flyer based upon reasonable 

suspicion that an individual had committed a criminal offense, 

and other officers, who lack personal knowledge amounting to 

reasonable suspicion, objectively rely on the flyer to conduct a 

stop, the validity of the stop turns on whether the officers who 

9
issued the flyer had the requisite reasonable suspicion. Id. at 

232. 

We agree with the Court of Appeals that “the imputation-ofknowledge principles used in Hensley to determine whether 

reasonable suspicion existed for a stop also apply to 

determining whether an individual, already being detained in the 

course of a legitimate stop, may be subjected to a weapons 

frisk.” Smith, 55 Va. App. at 43, 683 S.E.2d at 323. In 

determining whether the Fourth Amendment was violated, the issue 

before us is whether the information known to the officer making 

that PISTOL entry – coupled with the personal knowledge of 

Officers Hedman and Moore – was sufficient to provide reasonable 

suspicion for the frisk. 

The PISTOL system informed Officers Hedman and Moore that 

Smith was “probably armed and a narcotics seller/user.” 

Applying the imputation principles enunciated in Hensley, 

Officers Hedman and Moore also knew that Smith was arrested for 

possession of a firearm by a convicted felon eleven months prior 

to the stop at issue in this case. This information, as 

Detective Neville testified at the hearing on Smith’s motion to 

suppress, was entered into the PISTOL system by Officer Harris. 

Detective Neville stated that this entry would have resulted in 

the “probably armed” portion of the alert. Therefore, in 

assessing the PISTOL alert, Officers Hedman and Moore had a 

10
reasonable belief that Smith was a convicted felon, and that he 

had been charged and arrested for possession of a firearm by a 

convicted felon eleven months earlier. 

The Court of Appeals went further and assumed that the 

drug-related portion of the alert was based on Smith’s act of 

possessing with intent to distribute cocaine, which occurred six 

months prior to the stop that is at issue in this case. Smith, 

55 Va. App. at 45, 683 S.E.2d at 323. The Court of Appeals held 

that the record in this case established that the data entry 

officers also knew that Smith had been arrested for possessing 

cocaine with intent to distribute six months prior to the stop 

at issue in this case. Id. at 45, 683 S.E.2d at 324. 

Accordingly, the Court of Appeals imputed this knowledge to 

Officers Hedman and Moore in assessing whether the officers had 

reasonable suspicion to justify the frisk of Smith. In their 

briefs and during oral argument, the Commonwealth and Smith have 

adopted the Court of Appeals’ position that knowledge of both 

arrests was imputed to Officers Hedman and Moore. 

The details of Smith’s criminal record, the knowledge of 

which is imputed to the officers based on the language appearing 

in the PISTOL alert, and reasonable inferences to be drawn 

therefrom are critical in determining whether the officers had 

reasonable suspicion to believe Smith was armed and dangerous. 

First, the officers knew that Smith was a convicted felon. 

11
Second, they knew that despite having been convicted of a felony 

that prohibited his possession of a firearm, he was arrested 

eleven months prior to this encounter for possession of a 

firearm by a convicted felon. Third, the officers knew that 

just five months after his arrest for possession of a firearm, 

which was also just six months prior to the date of this 

encounter, Smith was arrested for possessing cocaine with the 

intent to distribute, an offense that is closely associated with 

firearms due to the danger inherent in the drug trade. See

Jones v. Commonwealth, 272 Va. 692, 701 & n.3, 636 S.E.2d 403, 

407 & n.3 (2006); United States v. Grogins, 163 F.3d 795, 799 

(4th Cir. 1998) (“the connection between illegal drug operations 

and guns in our society is a tight one”). 

We find that a reasonably prudent police officer, in light 

of his experience, and with due regard to his own safety when 

executing a valid traffic stop, has reasonable suspicion that an 

individual may be armed and dangerous based upon the officer’s 

knowledge of the individual’s prior felony conviction, followed 

by repeated charges over the previous eleven months involving 

firearms and a drug offense closely associated with firearms. 

The remoteness of arrests and convictions or an absence of 

weapons-related or dangerous offenses in an individual’s 

criminal history may be such that the individual’s criminal 

history is not sufficient for an officer to reasonably be 

12
concerned about his safety or the safety of others in order to 

establish reasonable suspicion for a frisk. However, in this 

case, Smith’s criminal history of a prior felony conviction, his 

arrest eleven months prior for possession of a firearm by a 

convicted felon, and his arrest six months prior for possession 

of cocaine with the intent to distribute, was sufficient to 

provide the officers with reasonable suspicion that Smith may be 

armed and dangerous, justifying a pat-down or limited search of 

his outer clothing for weapons. 

The cases cited by the dissent do not support the 

proposition that a prior criminal record involving arrests for 

weapons and intent to distribute narcotics violations cannot 

provide reasonable suspicion to support a frisk of a passenger 

conducted during a valid traffic stop, without additional 

evidence of the suspect’s appearance, or behavior, or the 

circumstances of the encounter providing an indication of 

criminal activity. Further, those cases do not support the 

dissent’s belief that the majority opinion is at odds with 

United States Supreme Court precedent and departs from 

established Fourth Amendment jurisprudence. 

The majority of the cases cited by the dissent involve the 

first prong of the Terry analysis, that a brief investigatory 

stop of persons and vehicles is justified if the officer’s 

action is supported by reasonable suspicion that criminal 

13
activity may be afoot. United States v. Arvizu, 534 U.S. 266, 

273 (2002). For example, in United States v. Foster, 634 F.3d 

243, 245-26, 249 (4th Cir. 2011), a recent decision by the 

United States Court of Appeals for the Fourth Circuit, cited by 

the dissent, evidence discovered in the search of a glove box 

was suppressed based upon the improper stop of the vehicle. 

Nowhere in our opinion do we state that a police officer armed 

with knowledge of a suspect’s criminal record, even a record 

including firearms and narcotics, is justified in stopping an 

individual based solely upon that record, without additional 

circumstances supporting a reasonable suspicion that a crime has 

occurred or is occurring. 

As the Supreme Court clarified in Arizona v. Johnson, a 

“stop and frisk” is constitutionally permissible if two 

conditions are met. 555 U.S. at ___, 129 S.Ct. at 784. The 

first condition is that the investigatory stop must be lawful. 

Id. As in this case, in which Smith was a passenger in a 

vehicle validly stopped for a traffic offense, that requirement 

is met when the police officer reasonably suspects that a person 

stopped (the driver) is committing or has committed a violation 

of the laws regulating the operation of motor vehicles. The 

second condition is met when the police officer reasonably 

suspects that the person stopped (including a passenger in the 

stopped vehicle) is armed and dangerous. Id.

14
Although reasonable suspicion is required for both the 

initial stop or seizure and for the subsequent frisk, once there 

is reasonable suspicion that a crime has occurred or may be 

occurring to justify a stop, there does not need to be 

additional reasonable suspicion that the passenger in the 

lawfully stopped vehicle is himself personally involved in 

criminal activity. The inquiry turns on whether there is 

reasonable suspicion that the person subjected to the frisk is 

armed and dangerous. Id.

Among the cases cited by the dissent, several cases do 

involve frisks. While several of those cases do state that a 

criminal record, standing alone, cannot create a reasonable 

suspicion to support a search or seizure, in none of the cases 

was a frisk suppressed based upon the reasoning argued by the 

dissent. For example, in State v. Valentine, 636 A.2d 505, 510-

11 (N.J. 1994), a case affirming a conviction after denial of a 

challenge to a frisk, the New Jersey Supreme Court first stated, 

with a citation only to Terry, that a suspect’s criminal history 

alone is not sufficient to justify a frisk of a suspect or to 

justify a frisk of a suspect once stopped. But then, 

immediately thereafter, the court states that “[i]n many 

instances, a reasonable inference may be drawn that a suspect is 

armed and dangerous from the fact that he or she is known to 

have been armed and dangerous on previous occasions.” Id. at 

15
511. And in State v. Giltner, 537 P.2d 14, 17 (Haw. 1975), also 

relied on by the dissent, evidence obtained by a frisk was 

suppressed because the seizure of the person was found to be 

“constitutionally impermissible.” According to the Supreme 

Court of Hawaii, while the officer’s personal knowledge that the 

accused was armed on a previous occasion “might have been an 

important factor in determining the legality of the frisk 

itself, it could not supply the justification for the initial 

seizure.” Id.

It is not the fact that Smith had a criminal record that 

supplied the officers in this case with reasonable suspicion 

that Smith was armed and dangerous. It was the specific 

information contained in the criminal record that supplied the 

officers with information that Smith, a felon, had been armed 

and dangerous on previous occasions based on his arrests for 

unlawful possession of a firearm and possession with intent to 

distribute cocaine. 

In McCain v. Commonwealth, 275 Va. 546, 554-55, 659 S.E.2d 

512, 516-17 (2008), a case (like this one) in which nothing 

furtive or overtly illegal was observed about the vehicle’s 

passenger by the officers on the scene of the traffic stop 

justifying “reasonable, individualized suspicion” that the 

passenger was armed and dangerous, this Court held that the 

fruits of a pat-down search should have been suppressed because 

16
the only extrinsic information available to the officers was 

that the vehicle’s passenger had merely recently visited a 

certain home where narcotics were thought to be trafficked, some 

months before. In the present case, the PISTOL report was 

received, containing further important criminal history 

information, which established the reasonable inference that 

Smith may be armed and dangerous from the fact that he was known 

to have been armed and dangerous on previous occasions. This 

information provided reasonable, individualized grounds for 

suspicion that Smith “may be armed and dangerous.” Johnson, 555 

U.S. at ___, ___, 129 S.Ct. at 784, 787; Terry, 392 U.S. at 23-

24, 27. 

The proper function of the PISTOL system includes alerting 

police officers who have made valid stops to information that, 

in and of itself, may cause a prudent officer to reasonably 

suspect that an individual may be armed and dangerous. In this 

case, the unchallenged stop is an intrusion that was justified 

by the officers’ investigation of a suspected traffic offense. 

The officers’ requiring the occupants to exit the vehicle is 

justified by case law, which balances the interest in officers’ 

safety against the minimal intrusion of requiring the occupants 

to exit. Upon learning of Smith’s criminal record of a felony 

conviction and recent arrests for firearm and narcotics 

violations, the officers, for their own safety as well as the 

17
safety of the community, were justified in questioning Smith 

further. Not being relieved of their safety concerns by Smith’s 

denial of having weapons or drugs on his person, the officers 

were entitled to follow up the questioning with a limited search 

for weapons. The frisk, which is only a limited pat-down of the 

outer clothing for weapons, was justified by the knowledge of 

Smith’s specific criminal history involving weapons and 

narcotics, which was imputed to the officers based upon the 

PISTOL system. Only after he felt the gun during the frisk was 

the officer justified in reaching into Smith’s pocket and 

retrieving the gun. 

CONCLUSION

For all of the foregoing reasons, we will reverse the 

judgment of the Court of Appeals, and enter final judgment 

affirming the conviction. 

Reversed and final judgment.

JUSTICE GOODWYN, with whom SENIOR JUSTICE KOONTZ joins, and 

JUSTICE HASSELL concurs, dissenting. 

The majority holds that law enforcement officers could 

reasonably suspect Corey Tayvon Smith was armed and dangerous 

and frisk him because of Smith’s past criminal record, even 

though there was nothing about his appearance or behavior or the 

circumstances under which the police came in contact with him 

that would indicate that Smith was presently involved in 

18
criminal activity or armed and presently dangerous. I believe 

that the majority opinion is at odds with United States Supreme 

Court precedent regarding rights afforded under the Fourth 

Amendment and departs from established Fourth Amendment 

jurisprudence. As evidenced by the majority’s inability to cite 

any precedent supporting its position, no other court in the 

United States has found that an officer can conduct a frisk 

based solely on knowledge of an individual’s criminal record. 

Therefore, I must respectfully dissent. 

The only aspect in the majority opinion disputed by this 

dissent concerns whether the officers had reasonable suspicion 

to frisk Smith. It is undisputed that the initial stop of the 

vehicle was proper. It is also undisputed that the officers’ 

request for Smith’s identification and their background check on 

him were proper. Additionally, it is undisputed that upon 

viewing the PISTOL alert that Smith was “probably armed and a 

narcotics seller/user,” the officers could order Smith out of 

the vehicle and vigilantly observe him during the traffic stop. 

However, without any additional factor suggesting Smith was 

armed and presently dangerous, the officers could not frisk 

Smith based solely on the PISTOL alert, because under settled 

constitutional principles, a generalized concern for officer 

safety is not enough to justify the frisk of a citizen. A 

police officer must be able to point to specific and articulable 

19
facts showing that criminal activity may be afoot or that the 

person may be armed and presently dangerous in order to justify 

a pat down search. See McCain v. Commonwealth, 275 Va. 546, 

552, 555-56, 659 S.E.2d 512, 516, 518 (2008) (majority opinion 

and dissent, both citing Terry v. Ohio, 392 U.S. 1 (1968)). 

Smith was a passenger in a vehicle stopped because of a 

defective brake light. After stopping the vehicle in which 

Smith was riding, the officers requested and obtained 

identification information, not only from the driver but also 

from Smith. The requested information was willingly provided. 

The officers checked and determined that there were no 

outstanding warrants for Smith’s arrest. However, upon 

receiving an alert from the PISTOL system stating that Smith was 

“probably armed and a narcotics seller/user,” an officer asked 

Smith to step out of the vehicle and proceeded to frisk Smith. 

Smith was cooperative until he declined the officer’s request to 

frisk him. The officers removed Smith from the vehicle and 

searched him solely because of the PISTOL alert. 

As pointed out by the Court of Appeals and by the majority, 

the Fourth Amendment analysis concerning whether the PISTOL 

alert supports the existence of a reasonable suspicion must 

focus on the facts known by the person or persons who entered 

the information into the PISTOL system. Knowledge of those 

facts may be imputed to Officers Hedman and Moore in determining 

20
whether there was sufficient reasonable suspicion to justify 

frisking Smith. 

According to the majority, the facts, properly imputed to 

have been known by the officers because of the PISTOL alert, 

were that Smith was a felon who had been arrested for possession 

of a firearm eleven months prior to the stop and that he had 

been arrested for possessing cocaine with intent to distribute 

six months prior to the stop. The majority concludes that 

knowledge of those facts concerning Smith’s criminal record was 

sufficient, without more, to create a reasonable suspicion that 

Smith was armed and presently dangerous. Established Fourth 

Amendment jurisprudence is to the contrary. 

Under well-settled principles of law, police officers may 

stop a person for the purpose of investigating possible criminal 

behavior even though no probable cause exists for an arrest. 

Terry, 392 U.S. at 27. A stop is permissible so long as the 

officer has reasonable, articulable suspicion that criminal 

activity may be afoot. United States v. Sokolow, 490 U.S. 1, 7 

(1989). During the course of a traffic stop, an officer may 

take certain steps to protect himself, such as asking the driver 

and any passengers to exit the vehicle. Maryland v. Wilson, 519 

U.S. 408, 414-15 (1997). However, “because a frisk or ‘patdown’ is substantially more intrusive than an order to exit a 

21
vehicle, . . . an officer must have justification for a frisk or 

‘pat-down’ beyond the mere justification for the traffic stop.” 

United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998). 

During a Terry stop, an officer may frisk a person if he 

develops reasonable suspicion during the stop to believe the 

particular person to be frisked is armed and dangerous. Knowles 

v. Iowa, 525 U.S. 113, 117-18 (1998); see Adams v. Williams, 407 

U.S. 143, 146 (1972). Thus, there must be reasonable suspicion 

justifying the stop and reasonable suspicion justifying a frisk 

which occurs after a proper stop has been made. The 

constitutional standard for both stops and frisks is the same – 

reasonable suspicion. 

The authority is unanimous in stating that an individual’s 

criminal record alone is not sufficient to support a finding of 

reasonable suspicion whether it regards a stop or a frisk. See

United States v. Rice, 483 F.3d 1079, 1085 (10th Cir. 2007) (“a 

criminal record, standing alone, is not sufficient to create 

reasonable suspicion of anything) (emphasis added); accord,

United States v. Monteiro, 447 F.3d 39, 47 (1st Cir. 2006) 

(knowledge of a person’s prior criminal involvement or mere 

arrest is insufficient to establish reasonable suspicion); 

United States v. Mathurin, 561 F.3d 170, 177 (3d Cir. 2009) 

(criminal record alone insufficient to amount to reasonable 

suspicion); United States v. Johnson, 427 F.3d 1053, 1057 (7th 

22
Cir. 2005) (law enforcement officer’s knowledge of a suspect’s 

criminal history is not enough, in and of itself, to support 

existence of reasonable suspicion); Burrell v. McIlroy, 464 F.3d 

853, 858 n. 3 (9th Cir. 2006) (prior criminal history alone 

cannot establish reasonable suspicion); United States v. 

Laughrin, 438 F.3d 1245, 1247 (10th Cir. 2006) (law enforcement 

officers cannot disturb a person’s liberty solely because of a 

criminal record); Outlaw v. State, 17 P.3d 150, 157 (Colo. 2001) 

(knowledge of prior criminal record not sufficient to create 

reasonable suspicion). 

As a result, officers cannot justify an investigatory stop 

solely on the basis of an individual’s criminal record. See

United States v. Oates, 560 F.2d 45, 59 (2d Cir. 1977) 

(“investigative stops certainly cannot be made ‘merely because 

[the detainees] have criminal records or bad reputations’”); 

Carter v. State, 692 N.E.2d 464, 467 (Ind. Ct. App. 1997) 

(officer’s mere knowledge of defendant and his prior criminal 

record was not sufficient to justify the investigatory stop); 

Commonwealth v. Morgan, 248 S.W.3d 538, 541 (Ky. 2008) (prior 

record of a suspect, standing alone, will never justify a Terry

stop); State v. Collins, 479 A.2d 344, 346 (Me. 1984) 

(investigative stop cannot be made merely because person has a 

criminal record). Likewise, an individual’s criminal record, 

alone, is not sufficient to establish reasonable suspicion for a 

23
frisk. See United States v. Miranda, 393 Fed. Appx. 243, 245-46 

(5th Cir. 2010) (prior criminal conduct, standing alone, cannot 

create a reasonable suspicion to support a search or seizure); 

United States v. Hairston, 439 F. Supp. 515, 518 (N.D. Ill. 

1977) (prior conviction cannot justify search and seizure in 

absence of other circumstances); State v. Giltner, 537 P.2d 14, 

17 (Haw. 1975) (“The reputation of an individual for carrying 

arms is not, in and of itself, a sufficient basis for a stop and 

frisk.”); State v. Valentine, 636 A.2d 505, 550 (N.J. 1994) 

(permitting the use of suspect’s prior criminal history alone to 

justify a Terry frisk may lead to unwarranted intrusions on a 

suspect’s constitutional protections). As stated by the Supreme 

Court of Maryland, “[T]o allow the reasonable articulable 

suspicion standard to be satisfied based upon a person’s 

[criminal] status, rather than an individualized assessment of 

the circumstances, would undermine the purpose [of] requiring 

officers to justify their reasons for searching a particular 

individual.” State v. Nieves, 861 A.2d 62, 77 (Md. 2004). 

There is no authority to support the majority’s proposition 

that a prior criminal record involving arrests for weapons and 

intent to distribute narcotics is sufficient to provide 

reasonable suspicion to support a frisk, without any additional 

indicators that the individual is armed and presently dangerous. 

While a person’s criminal record is among the proper factors to 

24
be considered in determining if reasonable suspicion exists, no 

other jurisdiction has found that a person’s criminal record, 

standing alone, creates a reasonable suspicion to support a 

search or seizure. In fact, every other jurisdiction in the 

United States that has considered the issue has decided the 

opposite. Each has required some additional evidence of a 

suspect’s appearance or behavior or circumstances regarding the 

encounter, in addition to the defendant’s criminal record, to 

support the existence of a reasonable suspicion. 

In Valentine, for example, the Supreme Court of New Jersey 

affirmed a Terry frisk based on a review of the totality of the 

circumstances. After approaching a suspect believed to be 

engaged in criminal activity, the officer initially became 

alarmed because the defendant had his hands in his pockets. 636 

A.2d at 512. The officer developed further suspicion when the 

defendant offered weak excuses in response to the officer’s 

questions, refused to make eye contact, and repeatedly looked 

around the area. Id. This encounter occurred after midnight on 

a dark street known to the officer as a high-crime area. In 

addition, the officer recognized the defendant as someone who 

had a long history of criminal activity, including armed 

robberies and weapons offenses. Id. at 512-13. Thus, as has 

heretofore all other jurisdictions, the Supreme Court of New 

Jersey required evidence of other contemporaneous observations 

25
or circumstances, in addition to knowledge of the suspect’s 

criminal history, to justify a Terry frisk. Id.; see also,

e.g., United States v. Stachowiak, 521 F.3d 852, 856-57 (8th 

Cir. 2008) (officer’s knowledge that defendant was likely to be 

armed, coupled with the observation of defendant’s furtive 

gesture and refusal to cooperate, provided reasonable suspicion 

to believe officer in danger); Rice, 483 F.3d at 1084 (facts 

justifying frisk include defendant’s presence in high crime area 

at 2:30 a.m., officer’s observation of car slowing 

intermittently in a manner consistent with preparing for a 

burglary or drive-by shooting, officer’s observation that car 

did not have a tag light, and computer check identifying 

defendant as known to be armed and dangerous); Collins, 479 

A.2d at 346 (frisk justified by officer’s belief that defendant 

may have been armed on a prior occasion and the defendant’s 

belligerent behavior on this occasion). 

As recently as last month, the United States Court of 

Appeals for the Fourth Circuit reiterated the heretofore 

established jurisprudence concerning the issue. “A prior 

criminal record is not, standing alone, sufficient to create 

reasonable suspicion. [The investigating officer] was required 

to pair his prior knowledge of [defendant’s] criminal record 

with some more ‘concrete factors’ to demonstrate that there was 

a reasonable suspicion of current criminal activity.” United 

26
States v. Foster, 634 F.3d 243, 245-46 (4th Cir. 2011) (internal 

citations and quotation marks omitted). 

In its opinion, the majority does not pair the officers’ 

knowledge of Smith’s prior criminal involvement with more 

concrete factors that would be necessary to create a reasonable 

suspicion that Smith was presently engaged in criminal conduct 

or was armed and presently dangerous at the time of the frisk. 

Instead, the majority holds that knowledge of Smith’s past 

criminal record was sufficient, by itself, to create a 

reasonable suspicion that Smith was armed and presently 

dangerous. The majority opinion contravenes all previous 

precedent on the issue. 

In this case, the officers knew there was no outstanding 

warrant for Smith’s arrest at the time he was searched. In 

addition, they neither observed nor discerned any present 

circumstances to support any suspicion that Smith was engaged in 

criminal activity or that he was armed and dangerous. There is 

no evidence in the record indicating that the officers observed 

Smith or the driver engage in any furtive behavior tending to 

indicate the presence of a weapon or some sort of contraband or 

other criminal activity. There is no indication that the 

officers saw any signs of weapons, drugs or other contraband on 

the person of the car’s occupants or in the vehicle. In fact, 

the record is completely devoid of any evidence that the 

27
characteristics of the area surrounding the stop, the time of 

the stop, the conduct, behavior or appearance of Smith, or the 

character of the offense they were investigating (defective 

brake light and/or trespass) in any way support the conclusion 

that Smith was engaged in criminal conduct or armed and 

presently dangerous. It is undisputed that the officer frisked 

Smith based solely upon the PISTOL alert. 

Whether the Fourth Amendment has been violated is a 

question to be determined from all the circumstances. Samson v. 

California, 547 U.S. 843, 848 (2006). Review of the existence 

of probable cause or reasonable suspicion involves application 

of an objective, rather than a subjective, standard. Terry, 392 

U.S. at 21-22; Bass v. Commonwealth, 259 Va. 470, 475, 525 

S.E.2d 921, 923 (2000). In its analysis of the reasonable 

suspicion issue, the majority properly imputes knowledge of 

Smith’s criminal history to the officers. However, in 

evaluating the totality of the circumstances, the majority does 

not consider information known to the officers in addition to 

that provided by the PISTOL alert. Having been informed that 

there was no outstanding arrest warrant for Smith, the officers 

knew that after reviewing Smith’s criminal record and being 

aware of the previous charges, a judicial officer had found 

either that the charges were not valid, or that despite the 

charges, Smith need not be incarcerated because he was not a 

28
danger to the public. See Code § 19.2-120. They also knew 

Smith was stopped only because he was a passenger in a car with 

a defective brake light and that they had not observed anything 

to lead them to believe he was presently involved in criminal 

activity or that he was armed and presently dangerous. The 

officers’ knowledge of Smith’s prior felony conviction and the 

two arrests in the eleven months before the encounter with the 

police are not, without some contemporaneous observation 

indicating criminal activity or present dangerousness, 

objectively sufficient to support a reasonable suspicion that 

Smith was presently involved in criminal activity or that he was 

armed and presently dangerous and thus subject to being frisked 

in compliance with the Fourth Amendment. 

In apparent contravention of previous precedent, the 

majority holds that certain people, because of their criminal 

record, are subject to a pat down search if stopped for a minor 

traffic violation, regardless of whether the police have any 

contemporaneous objective indicia of their current involvement 

with criminal activity or of their being armed and presently 

dangerous. Inherent in the majority opinion’s ruling is the 

conclusion that individuals, who have been determined by a 

judicial officer to be sufficiently safe to release from 

custody, may be presumed by law enforcement officers to be armed 

and dangerous. Such a presumption is the type of “hunch” the 

29
Supreme Court of the United States has admonished should not be 

allowed in determining the constitutional propriety of a search. 

See Terry, 392 U.S. at 27. 

Reliance on the PISTOL database is a useful tool that can 

improve officer safety. However, its use must comply with the 

requirements of the Fourth Amendment. When the officers’ 

investigation indicated that Smith had been lawfully released 

from custody, despite the fact that he was a felon who had been 

arrested twice in eleven months, the officers did not have the 

right to search him without observing something about his person 

or behavior or having some additional information that would 

lead them to believe he was engaged in criminal activity or 

armed and presently dangerous at the time of the frisk. The 

decision of the majority results in the ironic situation in 

which individuals deemed by the legal system to be safe enough 

to be released into society can be regarded by police officers 

as inherently dangerous to the point that they can be frisked 

solely based upon an officer’s knowledge that they have been 

charged and lawfully released. 

For these reasons, and the reasons stated by the Court of 

Appeals in its decision, I respectfully dissent. I would affirm 

the judgment of the Court of Appeals. 

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