Frisking without reasonable suspicion by police needs to be attacked, says Fairfax criminal defense lawyer

Frisking without reasonable articulable suspicion is only allowed in very narrow circumstances. As a Fairfax criminal defense lawyer, I know it is essential to challenge such searches tooth and nail. Unfortunately (but at least in an unpublished opinion, that therefore is not binding), a 2-1 Virginia Court of Appeals panel majority approved a handgun-finding frisk without reasonable suspicion, for law enforcement officer (LEO) safety. Tyler v. Commonwealth of Virginia, Record No. 0646-25-1 (Va. App. 2026) (unpublished). The Tyler affirmance represents a slippery slope from another case where police had more objective personal safety fear than in the Tyler case. 

Delayed response to a police order to raise your hands may lead to weapon or drug frisking

Police arrived at a high crime area to serve an arrest warrant on Drummond, who was near Tyler. LEO’s ordered the two to put their arms up. Tyler lifted his left arm, but kept his right hand at his waistband area. Police clarified to Tyler to raise both hands, Tyler complied, but police still proceeded with frisking him, and found an unlawfully possessed handgun. Tyler relies substantially on Welshman v. Commonwealth of Virginia, 28 Va. App. 20 (Va. App. 1998) (a 7-3 en banc opinion), where police had reasonable suspicion to believe that two people were engaged in illegal drug activity in a high crime area, ordered all six people near the two on their torsos with their arms extended, Welshman did not extend his arms, and the Virginia Court of Appeals ruled that his frisk was thereby justified for police officer safety. Whether or not Tyler’s dissenting appellate Judge Chaney disagrees also with Welshman, her dissent seems to attempt to bar any slippery slope from Welshman, pointing out that Tyler’s delayed compliance in putting both hands up is not a egregious for police safety as Welshman’s always hiding his hands in his torso (his frisk revealed a significant amount of cocaine).

Will Tyler be reviewed en banc / by the entire Virginia Court of Appeals?

With the 2-1 split in Tyler about frisking him, Tyler may end up being reviewed en banc / by the entire Virginia Court of Appeals, where perhaps the Court will overturn Welshman. Nonetheless, Tyler is a final appellate court ruling to date, which is not binding on any courts by being unpublished.

What should I do if charged with a weapon or controlled drug offense in Virginia criminal court?

You need to obtain a qualified lawyer when charged with a weapons or drug offense in Virginia, whether the seizure of those items arose from police frisking or otherwise. Fairfax criminal defense lawyer has successfully defended scores of weapons defendants and over one hundred  drug defendants. He will be delighted to discuss your criminal defense with you.

Fairfax criminal defense lawyer Jonathan L. Katz relentlessly pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions. Find out the great defense that Jon Katz can provide you, through your free in-person initial consultation with Jon Katz about your court-pending prosecutions. To schedule your appointment with Jon, call us at 703-383-1100, Info@KatzJustice.com, or (text) 571-406-7268.