Vol. 3, No. 2 | October 2008

Probable Cause to Search (and Reasonable Suspicion to Frisk)

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu

[Note:  Unless indicated otherwise, materials in quotation marks are quotes from the opinion of the court deciding the case under discussion.  Also, unless indicated otherwise, a case discussed below was decided by the United States Supreme Court.  Descriptions below of the facts of a case often quote verbatim (or at least draw heavily) from the opinion’s description of the facts or from the summary of the case provided by one of the legal reporters, such as Lexis-Nexis or www.findlaw.com]

Snell v. Commonwealth, 2008 Va. LEXIS 50 (Virginia Supreme Court, 4-18-08)

Facts:  The opinion is a bit sparse in its description of the facts, but it appears that Snell was detained by a Portsmouth police office as a runaway juvenile.  The legality of that detention was not challenged before the Virginia Supreme Court.  As part of the detention of Snell, it appears that the detaining officer looked in his wallet and observed a dollar bill folded into a “square measuring 1 inch by ¾ inch” [sic].  The court never indicates what was found inside the folded dollar bill.

Issue:  Did the officer have probable cause to seize the dollar bill?

Answer:  No.  (4-3, per curiam – although the court does not use that term)

1.       “The dollar bill in Grandison and the dollar bill seized by Officer Brazzo in the case at bar are not materially distinguishable. Thus, the judgment of the Court of Appeals conflicts with our holding in Grandison. The police officer in the case at bar did not have probable cause to seize the folded dollar bill and Snell's motion to suppress should have been granted by the circuit court.”

2.       The dissenters:  “In my opinion, the unusually folded dollar bill provided sufficient justification for the seizure and the search. Grandison was wrongly decided and so is this case.”

3.       Perhaps this case could have been decided in favor of the government as a valid search incident to arrest.  Snell was arrested for a status offense, but I know of no reason why that fact would prohibit a Chimel search.

McCain v. Commonwealth, 659 S.E.2d 512 (Virginia Supreme Court, 4-18-08)

Facts:  In the early morning hours, a police officer in a high crime area noticed a car that was parked on the street in front of a house.  The two occupants of the car walked up to the house and, in less than a minute, returned to the car.  The officer was familiar with the house because months earlier he was involved in an informant's buying cocaine at the house.  The officer stopped the car for a relatively minor traffic violation.  McCain was the passenger in the car.  Another officer who arrived testified that McCain had complied with every request the officers made of him until they asked him if they could frisk him.  When he declined, they conducted a pat-down search of McCain anyway.  The officer also testified McCain seemed nervous.  The other officer described him as “edgy.”  The officer who did the pat-down found a gun in the waistband of McCain’s trousers.  The officer arrested McCain for carrying a concealed weapon.  A search incident to the arrest turned up cocaine in one of McCain’s pockets.

Issue:  Did the officer have reasonable suspicion to think McCain was armed and dangerous?

Answer:  No.  (4-3, opinion by Justice Goodwyn)

1.   “The Supreme Court's decision in Terry does not permit a generalized policy that authorizes a police officer to frisk all persons. The totality of the circumstances, namely, the time of day, the location in a ‘high crime’ area, and the fact that Worsham had months earlier conducted a controlled cocaine purchase from the house McCain visited on Sublett's Alley, did not create reasonable suspicion sufficient to justify detaining and frisking McCain. No additional circumstances developed during the course of the traffic stop that would support a reasonable suspicion that McCain was involved in criminal activity or was armed and dangerous.”

2.   “[The officers] may have had a hunch that McCain was involved with drugs because of the neighborhood and the house McCain visited; however, such a hunch does not rise to the level of reasonable suspicion. The officers' interaction with McCain during the traffic stop in no way supported this hunch, because the officers did not observe or notice any drugs, odor of drugs, or drug paraphernalia in the vehicle. Further, the officers did not notice any physical or mental impairment that would indicate drug use by McCain, and there were no physical or other characteristics observed by the officers that indicated McCain might be armed and dangerous. Although he may have appeared to be nervous, McCain identified himself when requested, did not make any furtive movements, and cooperated with the police officers until Thompson asked permission to do a pat-down search.”

3.   Interestingly, one of the officers involved in this case testified that he routinely frisked every person with whom he interacted in this neighborhood for his own safety.

4.   The dissenters (including Justice Koontz) concluded that the high crime nature of the neighborhood, the early hour (3:00 a.m.) of the incident, and the observance of the two people in the car entering a house known to have been the scene of previous drug buys and then leaving within a minute provided articulable facts that formed a sufficient basis for reasonable suspicion.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.