COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Frank 

Argued at Salem, Virginia 

DERECK LAMONT HOLMES, S/K/A 

 DERRICK LAMONT HOLMES 

 MEMORANDUM OPINION* BY 

v. Record No. 0629-00-3 JUDGE ROBERT P. FRANK 

 JANUARY 30, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 S. Jane Chittom, Appellate Defender (Public 

Defender Commission, on brief), for 

appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

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

designated for publication.

 Dereck Lamont Holmes (appellant) was convicted in a bench 

trial of two counts of felonious assault and battery of a police 

officer in violation of Code § 18.2-57(C), one count of impeding 

a police officer in violation of Code § 18.2-460(C) and one 

count of possession of cocaine in violation of Code § 18.2-250. 

On appeal, he contends the trial court erred in finding the 

evidence was sufficient to support his convictions and in 

denying his motion to suppress. Finding no error, we affirm the 

convictions. 
I. BACKGROUND 

 On June 16, 1998, at 4:30 a.m., Danville Police Officer 

L.R. Kennedy was on patrol when he saw a 1988 two-door Pontiac 

with Virginia license plates driving backwards on Berryman 

Avenue onto East Stokes Street. Kennedy stopped the vehicle. 

While the officer performed field sobriety tests on the driver, 

appellant, who was a passenger, got out of the car and moved to 

the sidewalk. Officer Kennedy observed that appellant appeared 

to be intoxicated. Appellant was staggering and had a dazed 

look about his person and on his face. 

 Concerned for his safety while he dealt with the driver, 

Kennedy asked appellant to get back in the car. Appellant did 

not comply. Officer Kennedy repeated his request. He asked 

appellant to get into the car between six and eight times before 

appellant finally complied. 

 Officer Kennedy ultimately arrested the driver for driving 

under the influence. The driver asked that Officer Kennedy 

leave the vehicle on the side of the road. Officer Kennedy 

approached the passenger side of the car and told appellant to 

get out of the car so that he could perform an inventory search, 

which he was required to do by department policy. Officer 

Kennedy believed that appellant was intoxicated so he told 

appellant he was going to check his sobriety. After about ten 

to fifteen seconds, appellant got out of the vehicle and, when 

he did so, Kennedy saw a large bulge in his right front pocket. 

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The large bulge was approximately the size of a baseball. The 

officer could not tell what was in appellant's pocket. 

 The bulge in appellant's pocket, as observed by Kennedy, 

was "a large indiscriminate bulge." He stated, "It didn't 

appear to have any corners or particular shape, but still it was 

enough of a bulge that would stand out to a noticeable degree 

that it would catch my attention." He said the bulge was 

thicker than it was long. He agreed that the bulge could have 

been the length and approximate thickness of a baseball, but 

said he had seen pistols smaller than a baseball. As to whether 

the object was flat or bulging out, Kennedy said the object was 

bulging, but he could not tell whether it was flat, square, or 

rectangular. Kennedy did not have an opportunity to search 

inside appellant's pocket. 

 As appellant left the vehicle, he was still staggering. 

Kennedy could smell alcohol "coming from his breath" and his 

eyes were bloodshot and glassy. Officer Kennedy told appellant 

to put his hands on top of the vehicle so he could perform a 

pat-down for weapons. Appellant told Kennedy, "No," and then 

put his right hand in his right front pocket, the same pocket 

containing the bulge. Appellant made no aggressive motion until 

Kennedy announced the pat-down. Officer Kennedy reached out to 

stop him because he believed appellant "may have had a pistol in 

his pocket." As Officer Kennedy reached out to grab appellant's 

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hand, he made contact with appellant's pocket and felt a hard 

object, but could not identify the object. 

 Appellant then bent his knees, squatting slightly, and came 

up with both hands, shoving Kennedy in the chest with his right 

hand. His left hand made contact with Officer Hyler. The two 

officers were pushed back eight to twelve inches. 

 As both officers attempted to grab appellant, all three 

fell to the sidewalk. A struggle that lasted for approximately 

seven to ten minutes ensued. During the struggle, both officers 

tried to handcuff appellant. Kennedy used chemical mace on 

appellant, but appellant continued to struggle. Appellant had 

both fists balled up but he was not striking the officers with 

his fists. He was trying to pull free from their grasp. 

Officer Kennedy was hit "with a few elbows and I was kneed a 

couple of times, close to the groin area." Appellant, during 

the struggle, also struck Officer Hyler in the chest with his 

elbows. 

 The two officers managed to handcuff appellant in front, 

and then, after a third officer arrived, they cuffed appellant's 

hands behind his back. Officer Kennedy then searched appellant 

and found lighters, tissues, change, papers, and a homemade 

smoking device in appellant's right front pocket, the same 

pocket where Kennedy initially saw the bulge. 

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 Appellant, while admitting to having tissues, a lighter, 

and a crack pipe in his pocket, denied there was a bulge in his 

pocket and denied reaching into the pocket. 

 When ruling on the suppression motion, the trial court 

found: 

 Then he was finally ordered to step out 

of the car, and due to his behavior and his 

demeanor, the police had reason to believe 

that he was probably under the influence of 

alcohol or some other substance. Now, at 

that point in time, the officer noticed that 

the defendant had a bulge in his right front 

pocket. After he saw the bulge, he told the 

defendant that he was going to frisk him or 

to pat him down. Now, at that point in 

time, the officer had observed the defendant 

had been staggering, he'd smelled the odor 

of alcohol and when the defendant said "no", 

up until that point I think that we have a 

question here that a reasonable pat down 

might be called into order. But the 

defendant's behavior at that point took a 

different turn. He initially began to move 

his hand toward his right front pocket and, 

in fact, reach into his pocket at which time 

the officer reached out to stop the 

defendant, believing that he might have had 

a weapon and felt a hard object. I think at 

that point the Court has to look at the 

circumstances in determining the officers 

behavior as to whether they were reasonable 

or not: We are in the middle of the night, 

a dark street, there has just occurred a 

violation of the law and the behavior of the 

defendant at that time became suspicious. 

It was obvious that he was attempting to 

avoid the officers touching him and when he 

made a movement toward his pocket I think 

that the officer had, at that point in time, 

the right to protect himself, to ensure that 

he could pursue his investigation further 

without harm coming to himself. 

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II. ANALYSIS 

 Appellant first contends the police did not have a 

reasonable basis to believe he was carrying a weapon. He states 

three reasons for this contention: 1) the officer only had a 

generalized belief, 2) the bulge could not reasonably have been 

thought to be a weapon, and 3) being drunk in public cannot 

justify a pat-down, citing Lovelace v. Commonwealth, 258 Va. 

588, 522 S.E.2d 856 (1999). 

 At a hearing on a defendant's motion to 

suppress, the Commonwealth has the burden of 

proving that a warrantless search or seizure 

did not violate the defendant's Fourth 

Amendment rights. See Simmons v. 

Commonwealth, 238 Va. 200, 204, 380 S.E.2d 

656, 659 (1989); Alexander v. Commonwealth, 

19 Va. App. 671, 674, 454 S.E.2d 39, 41 

(1995). On appeal, we view the evidence in 

the light most favorable to the prevailing 

party, granting to it all reasonable 

inferences fairly deducible therefrom. See

Commonwealth v. Grimstead, 12 Va. App. 1066, 

1067, 407 S.E.2d 47, 48 (1991). "[W]e are 

bound by the trial court's findings of 

historical fact unless 'plainly wrong' or 

without evidence to support them[,] and we 

give due weight to the inferences drawn from 

those facts by resident judges and local law 

enforcement officers." 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, 

116 S. Ct. 1657, 1659, 134 L.Ed.2d 911 

(1996)). However, we review de novo the 

trial court's application of defined legal 

standards such as probable cause and 

reasonable suspicion to the particular facts 

of the case. See Shears v. Commonwealth, 23 

Va. App. 394, 398, 477 S.E.2d 309, 311 

(1996); see also Ornelas, 517 U.S. at 699, 

116 S. Ct. at 1659. 

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Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359 

(1999). 

 "Once a police officer has properly detained a suspect for 

questioning,1 he may conduct a limited pat-down search for 

weapons if he reasonably believes that the suspect might be 

armed and dangerous." Williams v. Commonwealth, 4 Va. App. 53, 

66, 354 S.E.2d 79, 86 (1987) (citations omitted). 

 It is not unreasonable for a police 

officer to conduct a limited pat-down search 

for weapons when the officer can point to 

"specific and articulable facts" "which 

reasonably lead[ ] him to conclude, in light 

of his experience, that 'criminal activity 

may be afoot' and that the suspect 'may be 

armed and presently dangerous.'" 

James v. Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92 

(1996) (citations omitted). 

 "Among the circumstances to be 

considered in connection with this issue are 

the 'characteristics of the area' where the 

stop occurs, the time of the stop, whether 

late at night or not, as well as any 

suspicious conduct of the person accosted 

such as an obvious attempt to avoid officers 

or any nervous conduct on the discovery of 

their presence." 

Williams, 4 Va. App. at 67, 354 S.E.2d at 86-87 (citation 

omitted). 

 Appellant's argument presupposes there was a pat-down. 

However, the record establishes that a pat-down did not occur. 

 1

 Appellant does not contest validity of the stop or 

detention or his removal from the vehicle. 

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While the officer intended to pat appellant down, appellant's 

actions prevented the officer from doing so. The trial court 

found, and we agree, that upon appellant reaching into his 

pocket that contained the bulge, the officer reached to grab 

appellant's hand to protect himself and only incidentally 

touched the bulge. We, therefore, need not address whether or 

not the officer reasonably believed appellant might be armed and 

dangerous. Once appellant pushed both officers away and engaged 

in a struggle with the officers, the officers had probable cause 

to arrest appellant for felony assault and battery. Further, 

since appellant was staggering and had a dazed look, bloodshot 

eyes, and an odor of alcohol about his person, the officers also 

had probable cause to arrest appellant for being drunk in 

public.2 The subsequent search was valid as a search incident to 

a lawful arrest. 

 "[T]he test of constitutional validity 

[of a warrantless arrest and incidental 

search] is whether . . . the arresting 

officer had knowledge of sufficient facts 

and circumstances to warrant a reasonable 

man in believing that an offense has been 

committed." Bryson v. Commonwealth, 211 Va. 

85, 86-87, 175 S.E.2d 248, 250 (1970). To 

establish probable cause, the Commonwealth 

must show "'a probability or substantial 

chance of criminal activity, not an actual 

showing'" that a crime was committed. Ford 

v. City of Newport News, 23 Va. App. 137, 

143-44, 474 S.E.2d 848, 851 (1996) (quoting 

 2

 Although public drunkenness is a Class 4 misdemeanor, 

pursuant to Code § 19.2-74(A)(2), the police are authorized to 

arrest the accused and not merely issue a summons. 

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Illinois v. Gates, 462 U.S. 213, 243 n.13, 

103 S. Ct. 2317, 2335 n.13, 76 L.Ed.2d 527 

(1983)). Ordinarily, the Fourth Amendment 

requires only that an objectively reasonable 

basis exist for a search. See, e.g., Whren 

v. United States, 517 U.S. 806, 812-13, 116 

S. Ct. 1769, 1774, 135 L.Ed.2d 89 (1996). 

"'[T]hat the officer does not have the state 

of mind which is hypothecated by the reasons 

which provide the legal justification for 

the officer's action does not invalidate the 

action taken as long as [all] the 

circumstances, viewed objectively, justify 

that action.'" Id. at 813, 116 S. Ct. at 

1774 (quoting Scott v. United States, 436 

U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 

L.Ed.2d 168 (1978)). 

Debroux v. Commonwealth, 32 Va. App. 364, 381, 528 S.E.2d 151, 

159, aff'd on reh'g en banc, 34 Va. App. 72, 537 S.E.2d 630 

(2000). 

 In this case, because the officer did not pat-down 

appellant and because the police found the cocaine during a 

search incident to a lawful arrest, we affirm the trial court's 

denial of the motion to suppress. 

 Appellant next contends the trial court erred in convicting 

appellant of two counts of assault and battery of police 

officers. Specifically, he argues no evidence indicated he 

intentionally caused the officers bodily harm. He further 

contends he had a right to resist an unlawful search. 

Similarly, he contends the trial court erred in convicting him 

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of "obstruction of justice" under Code § 18.2-460 because the 

officers were not "lawfully engaged" in their duties.3

 As we stated in Perkins v. Commonwealth, 31 Va. App. 326, 

523 S.E.2d 512 (2000): 

 An assault and battery is the unlawful 

touching of another. See Gnadt v. 

Commonwealth, 27 Va. App. 148, 151, 497 

S.E.2d 887, 888 (1998). Assault and battery 

is "the least touching of another, willfully 

or in anger." Roger D. Groot, Criminal

Offenses and Defenses in Virginia 29 (4th 

ed. 1998). The defendant does not have to 

intend to do harm; a battery may also be 

"done in a spirit of rudeness or insult." 

Id. (footnote omitted). The touching need 

not result in injury. See Gnadt, 27 Va. 

App. at 151, 497 S.E.2d at 888. A touching 

is not unlawful if the person consents or if 

the touching is justified or excused. See

id.; Groot, supra, at 30 ("an intentional 

touching which was not justified or excused 

is a battery"). 

Id. at 330, 523 S.E.2d at 513. 

 3

 Code § 18.2-460(C) states: 

If any person by threats of bodily harm 

or force knowingly attempts to intimidate or 

impede a judge, magistrate, justice, juror, 

witness, or any law-enforcement officer, 

lawfully engaged in the discharge of his 

duty, or to obstruct or impede the 

administration of justice in any court 

relating to a violation of or conspiracy to 

violate § 18.2-248 or § 18.2-248.1 (a) (3), 

(b) or (c), or relating to the violation of 

or conspiracy to violate any violent felony 

offense listed in subsection C of 

§ 17.1-805, he shall be guilty of a Class 5 

felony. 

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 Whether a touching is a battery depends on the intent of 

the actor, not on the force applied. Wood v. Commonwealth, 149 

Va. 401, 405, 140 S.E. 114, 115 (1927). 

 Appellant admits he pushed both officers. This act, alone, 

is an unlawful, willful touching done "in a spirit of rudeness 

or insult." Further, appellant engaged the officers in a 

struggle that resulted in all three participants being thrown to 

the ground. In the ensuing struggle, appellant kneed one 

officer and elbowed both officers. The fact finder could 

reasonably find an "unlawful, willful touching" that was "done 

in a spirit of rudeness and insult." 

 As noted earlier, the police had probable cause to arrest 

appellant for public drunkenness. While appellant relies on 

Lovelace for his contention that the police cannot pat-down a 

person suspected of committing a Class 4 misdemeanor, he 

misreads Code § 18.2-460(C) set forth in footnote three above. 

 Further, Lovelace does not support appellant's argument. 

Rather, it addresses "search incident to citation" as expounded 

in Knowles v. Iowa, 525 U.S. 113 (1998). Lovelace, 258 Va. at 

593-94, 522 S.E.2d at 858-59. In Lovelace, the Supreme Court of 

Virginia opined that when a suspect is stopped for an offense 

that only gives rise to a citation or summons, a "full 

field-type search" is not allowed. Id. at 594, 522 S.E.2d at 

859. The Court wrote, "Because the nature and duration of such 

an encounter are significantly different and less threatening 

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than in the case of an officer effecting a custodial arrest, the 

rationales justifying a full field-type search are not 

sufficient to authorize such a search incident to the issuance 

of a citation." Id. Yet Lovelace, citing Knowles, did not bar 

a "pat-down" in a citation situation under the proper 

circumstances. Id. at 594, 522 S.E.2d at 858-59. The Court 

wrote, "However, the Supreme Court recognized that the concern 

for officer safety is not absent in a routine traffic stop and 

may justify some additional intrusion. However, by itself, it 

does not warrant the greater intrusion accompanying 'a full 

field-type search.'" Id. at 594, 522 S.E.2d at 858 (citation 

omitted). 

 The Court further opined: 

 We believe that the scope of these 

further intrusions is limited to what is 

necessary to answer the concerns raised by 

the presence of either historical rationale. 

In other words, an encounter between a 

police officer and an individual that is 

similar to a routine traffic stop and 

results in the issuance of a citation or 

summons may involve some degree of danger to 

the officer or some need to preserve or 

discover evidence sufficient to warrant an 

additional intrusion, but it will not 

necessarily justify a full field-type 

search. 

Id. at 594, 522 S.E.2d at 859. 

 We conclude from Lovelace that, even in a citation offense, 

the officer may pat-down the suspect if the officer reasonably 

believes that the suspect might be armed and dangerous. 

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 Assuming, without deciding, that appellant had a right to 

resist an unlawful pat-down, we find the officers were "lawfully 

engaged in the discharge of [their] duties." Appellant was 

properly convicted of assault and battery on police officers and 

impeding a police officer. 

 For these reasons, we affirm appellant's convictions. 

Affirmed.

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