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COURT OF APPEALS OF VIRGINIA

Present:

Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Agee, Felton and Kelsey Argued at Richmond, Virginia

BENJAMIN WAYNE McCRACKEN v. Record No. 2912-00-3 OPINION BY JUDGE RUDOLPH BUMGARDNER, III NOVEMBER 26, 2002

COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC FROM THE CIRCUIT COURT OF WASHINGTON COUNTY Nicholas E. Persin, Judge John B. Coleman (Scyphers & Austin, P.C., on brief), for appellant. Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

A jury convicted Benjamin Wayne McCracken of possession of marijuana and two counts of assault and battery of a law enforcement officer. He contends the trial court erroneously

admitted evidence obtained when a deputy sheriff illegally entered a home, frisked the defendant, and found marijuana in his pocket. He maintains he lawfully used reasonable force to

resist his arrest because it was unlawful. A panel of this court held that the trial court erred in admitting unlawfully seized marijuana and reversed the conviction of possession of marijuana. The panel held the

defendant was not entitled to resist his arrest and affirmed the two convictions for assault and battery of a law enforcement officer. We granted a petition for rehearing en banc and stayed Upon rehearing en banc, we

the mandate of the panel decision. affirm the trial court.

On appeal of the denial of a motion to suppress, we view the evidence in the light most favorable to the Commonwealth. 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," McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc), but we review de novo the trial court's application of legal standards such as reasonable suspicion to the particular facts of the case. United States, 517 U.S. 690, 699 (1996). The defendant and Teresa Fields had lived together for almost three years in a house owned by Fields. During an See Ornelas v.

argument, Fields called the 911 emergency dispatcher to have the defendant removed from her residence. When Deputies Dollar and

Sexton responded to the "domestic disturbance" the couple were still arguing, but the situation had not escalated to violence. The defendant agreed to move out of Fields' house, and the deputies remained for forty-five minutes and helped him remove his belongings. The defendant went to stay with his mother.

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After the defendant arrived there, he telephoned Fields, and the two renewed their argument. When that call ended, the

defendant's mother telephoned Fields and warned her that the defendant was going to her house. Fields called the 911

emergency dispatcher a second time and reported the defendant was returning. The dispatcher instructed her to lock her doors

and dispatched Deputies Dollar and Sexton to the "domestic call." When Deputy Dollar arrived at Fields' house, the back door was locked, neighbors were in the front yard screaming, and the deputy heard Fields and the defendant arguing inside the house. The front door was partially open, but the screen door was closed. The deputy drew his weapon, pushed open the screen

door, and entered. The defendant and Fields were standing four to six feet apart. The deputy saw nothing in their hands. He holstered his

weapon, but as he looked over the defendant, he noticed a bulge in his right front pants pocket. He asked the defendant to

place his hands on the wall so he could make sure the defendant did not have any weapons. The defendant did not comply and kept

moving around the room despite repeated requests to put his hands on the wall. Finally, the defendant stopped and put his

hands on the back of a love seat. While the defendant leaned against the love seat, the deputy patted the defendant's front right pocket and felt a - 3 -

hard, rigid object in it.

The deputy reached into the pocket

for the hard object, but first uncovered a plastic baggie containing plant matter, which had been on top of the hard object. The deputy believed the bag contained marijuana. He

told the defendant he was under arrest for possession of it and instructed the defendant to put his hands behind his back. Again the defendant disregarded instructions. He "kept easing The

away," and then stated he wanted his Skoal and his gun. defendant started toward the kitchen at a fast pace.

Deputy Dollar told the defendant to stop and grabbed hold of him. The defendant resisted; the two began to scuffle, and During the altercation the defendant kicked the

then to fight.

deputy, struck him in the face, and began choking him with a headlock hold. At that point, Deputy Sexton arrived. While he

tried to break the defendant's hold on Dollar, the defendant elbowed Sexton in the ribs. Eventually, the two deputies

subdued the defendant and handcuffed him. 1 Before opening the screen door, the deputy had probable cause to believe the defendant was trespassing, Code

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