George Lee Hawkins v. Commonwealth of Virginia
65 Va. App. 101
| Va. Ct. App. | 2015Background
- Hawkins, a convicted felon, was convicted of possession of a firearm by a convicted felon under Code § 18.2-308.2; he challenged suppression of the firearm found on his person.
- The trial court denied suppression, accepting Hawkins consent to the lifting of his shirt as the basis for the search and rejecting a Terry stop.
- Officer Ring observed a hand-to-hand drug transaction near a high-crime area; Hawkins and another man stood near Hamilton, who completed the exchange and then joined a car leaving the scene.
- Ring stopped the car for a traffic violation; drugs were found on Hamilton during a subsequent search; Chesapeake police notified Norfolk officers of Hawkins’ involvement.
- Five Norfolk officers approached Hawkins and his companion; they conducted a casual identification inquiry without detaining them or mentioning the narcotics investigation across the street; Hawkins raised his shirt in response to a request after a bulge was seen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hawkins validly consented to the shirt lifting | Hawkins did not consent; the search exceeded consent. | Hawkins’ conduct invited consent; nonverbal response sufficed. | Consent supported; search within scope of consent |
| Whether the officers’ actions constituted a Terry stop and protective search | The stop did not justify a Terry frisk; lifting the shirt was beyond scope. | Detention was supported by reasonable suspicion; the lifting of the shirt was within protective Terry search. | Detention and protective search were justified under Terry |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (establishes Terry stop and protective search framework)
- United States v. Baker, 78 F.3d 135 (4th Cir. 1996) (bulge may justify lifting shirt under Terry)
- United States v. Hill, 545 F.2d 1191 (9th Cir. 1976) (lifting shirt permissible within Terry in some contexts)
- United States v. Reyes, 349 F.3d 219 (5th Cir. 2003) (lifting shirt is less intrusive than pat-down; permissible)
- United States v. Casado, 303 F.3d 440 (2d Cir. 2002) (recognizes flexibility of Terry searches beyond pat-downs)
- Murphy v. Commonwealth, 264 Va. 568 (2002) (protective search under Terry in Virginia context)
- Roberts v. Commonwealth, 55 Va.App. 146 (2009) (objective reasonableness standard for searches during stops)