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Police Not Justified in Searching Occupants of Stopped Car

By Deborah Elkins
November 17, 2008

Police had reasonable suspicion to detain and approach a vehicle that had been halted in a street travel lane for 15 seconds and could have been a hazard to traffic and a violation of Va. Code § 46.2-888, but the Court of Appeals says police exceeded the scope of their right to conduct a pat-down, based on the passenger’s verbal abuse of police and “fast” movements of putting his hands in his pockets, and the trial court should have suppressed the evidence of cocaine found in defendant’s pocket.

We agree with defendant that the officers had no reasonable belief that defendant was armed and presently dangerous. The record reflects that the primary source of the officers’ suspicion that defendant was armed and dangerous was his rapid arm movement and hostile verbal language during the traffic stop of the car. The first officer described defendant’s arm movement as “furtive,” and the second officer testified that defendant was moving his hands into his pockets. Neither officer, however, noticed defendant grab, remove or conceal anything. The second officer, who performed the search, testified that despite defendant’s agitation, defendant never made any threat against the officers. Further, the officers were investigating defendant for suspected criminal activity that does not require weapons.

We find the frisk of defendant for weapons was not supported by a reasonable belief that he was armed and presently dangerous

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