This opinion, written by Judge Larry Elder (who upholds the 4th Amendment as well as Judge Benton), is very good; probably why the AG appealed to the Supreme Court of Virginia:
Corey Tayvon Smith v. Commonwealth of Virginia
What Judge Elder did was apply the important adverb presently to both 'armed' as well as 'dangerous'.
- Corey Tayvon Smith was a passenger in a vehicle
- During a traffic stop, police took identification from both the driver and Smith
- The officers determined neither had any outstanding warrants
- However, when ID's were checked against the interdepartmental PISTOL system, Smith's name came back with an alert, "probably armed and a narcotics seller/user."
- Officer asked Smith to exit the vehicle; asked if Smith had any weapons; officer then frisked Smith -- 'officer safety'
- Key holding: "Unless the evidence establishes an additional factual basis for believing the suspect may be presently armed and dangerous—evidence in combination which may include a lengthy criminal history, habitual involvement with firearms, involvement with drug distribution, furtive gestures, a suspicious bulge, or something similar, none of which were present here—the officer lacks reasonable suspicion for a frisk."
Thus, it is insufficient for an officer to believe a person is either probably armed or potentially dangerous to justify a frisk. Instead, the Terry standard requires the officer to apply a reasonable, individualized, articulated suspicion that the individual may be presently armed and dangerous before a frisk for weapons can be conducted.