Peguese v. Commonwealth

451 S.E.2d 412, 19 Va. App. 349, 1994 Va. App. LEXIS 730

Opinions

Barrow, J., with whom Benton, J., and Coleman, J., join,

dissenting.

A police officer’s authority to search a person for weapons during a Terry stop is “narrowly drawn ... to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual.” Harris v. Commonwealth, 241 Va. 146, 149, 400 S.E.2d 191, 193 (1991). Such a search must be based on “specific reasonable inferences which [the officer] is entitled to draw from the facts in light of his experience.” Id. The only fact upon which the officer’s search in this case could have been based was the suspicion that the passenger in the car driven by the defendant may have just purchased a controlled substance. This fact, in my opinion, did not permit the officer reasonably to infer that the defendant was armed and dangerous.

Even if a reasonable basis existed for suspecting that the passenger possessed a controlled substance, that suspicion, while sufficient to justify a stop of the automobile, did not justify a search of the defendant. An investigative stop does not, without more, justify a search of the person stopped. Sibron v. New York, 392 U.S. 40, 64 (1968); Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979); Harris v. Commonwealth, 241 Va. at 151, 400 S.E.2d at 194; Williams v. Commonwealth, 4 Va.App. 53, 66, 354 S.E.2d 79, 86 (1987).

Something more is needed to permit a reasonable inference that the person stopped is armed and dangerous. See Williams, 4 Va.App. at 67, 354 S.E.2d at 87. In this case, the only “something more” is the suspicion that the passenger in the car possessed a controlled substance. We know little more of significance. We do not know the “ ‘characteristics of the area’ where the stop” occurred. Id. We are advised of no “suspicious conduct of the person accosted such as an obvious attempt to avoid officers or any nervous conduct on the discovery of their presence.” Id. We do not know the nature of the controlled substance the officer suspected the passenger acquired. We know only that the stop occurred at approximately 9:30 p.m.

The majority concludes that a police officer may reasonably believe that one is armed and dangerous from one’s presence at a suspected drug transaction and the suspicion that one’s companion possesses an unknown controlled substance. Existing law does not, in my opinion, extend so far. Therefore, I would reverse the conviction and remand the proceeding for a new trial.