Praised be Virginia’s Court of Appeals for last week further distinguishing the factors separating a mere hunch — which does not justify a police frisk or search — from a Terry  frisk based on reasonable articulable suspicion to believe the suspect is armed and dangerous. The Court said, in pertinent part:

Here, Blystone did not indicate that he suspected that appellant was armed, nor did he articulate any particular circumstances from which a reasonably prudent person could conclude that appellant may have been armed. Blystone testified that he relied on appellant’s balled up fist, raised voice, and nervous behavior in determining that his behavior was “pre-assault[ive]” causing him to feel “concern” for his safety, based in part on training he received “after” the incident. As we have previously held, “An officer’s perception of a suspect’s nervousness [and verbal agitation], without additional articulable facts reasonably suggesting the suspect is armed and presently dangerous, cannot justify a pat-down search.” Thompson, 54 Va. App. at 8, 675 S.E.2d at 835; see also Terry, 392 U.S. at 22 (“‘If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police.’” (quoting Beck v. Ohio, 379 U.S. 89, 97 (1964))).

Roberts v. Virginia, ___ Va. App. ___ (Nov. 10, 2009).