COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
DERRICK DEVON LOGAN
OPINION BY
v. Record No. 0367-98-2 JUDGE LARRY G. ELDER
MARCH 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Buddy A. Ward, Public Defender (Office of the
Public Defender, on brief), for appellant.
Ruth Morken McKeaney, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Derrick Devon Logan (appellant) appeals from his bench
trial conviction for possession of cocaine with intent to
distribute in violation of Code § 18.2-248. On appeal, he
contends the trial court erroneously denied his motion to
suppress. He argues that the officers violated his rights under
the United States and Virginia Constitutions because they did
not have the reasonable, articulable suspicion necessary to
justify a search of his person. We hold that the evidence was
sufficient to establish reasonable, articulable suspicion that
appellant was armed, and we affirm his conviction.
I.
FACTS
On May 19, 1997, Officers Edmonds and Lawhorn stopped the
car in which appellant was a passenger because it did not
display a valid inspection sticker. When Edmonds approached the
small two-door car, he saw a 9 mm handgun in the middle of the
dashboard. When Officer Edmonds noticed the gun, he asked the
driver for his license and registration and then had the driver
and three passengers exit the vehicle for officer safety.
Neither officer could say which seat in the car appellant had
occupied. Edmonds testified that the passengers were young and
"all seemed kind of nervous." He said that, as they were
exiting the vehicle, "all of them had their hands in their
pocket[s] . . . . They had a hard time being stationary; just
kept moving; just continued to make eye contact towards one
another." Edmonds later testified, however, when recalled by
the Commonwealth, that he "[could not] really say" that
"[appellant] was nervous by himself" or that he had his hands in
his pockets. 1
1
The Commonwealth conceded on oral argument to the trial
court that "[Officer Edmonds] couldn't recall [appellant] being
nervous" and that Edmonds said only that "[t]he group appeared
to be nervous and some of them had put their hands in their
pockets."
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In response to Edmonds' questions, the driver said that the
gun on the dashboard was his. Edmonds seized the gun and
discovered it was loaded. The driver said he wanted to talk to
Edmonds, so Edmonds asked for permission to search the driver,
which he received. After patting the driver down, Edmonds
allowed him to sit in the patrol car. At that time, which was
less than five minutes after the officers initiated the traffic
stop, Edmonds noticed that Lieutenant Loftus had arrived on the
scene and that he and Lawhorn were talking to the passengers.
Edmonds then ran a registration and license check for the
vehicle and a permit check for the gun and wrote the summons for
the invalid inspection sticker. 2 After issuing the summons and
before exiting the police vehicle with the driver, Edmonds
obtained the driver's permission to search the vehicle.
While Edmonds dealt with the driver, Lawhorn stood with the
three passengers under a nearby tree. Lawhorn testified that
appellant was not acting "nervous." Although Lawhorn "had [all
the passengers] keep their hands out of their pockets" and "had
to remind them" on "a couple of occasions," he could not recall
whether he had to remind appellant. Lawhorn testified that
2
These checks revealed that both the vehicle and the gun
were properly registered to the driver and that the driver had a
valid license.
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"[i]t wasn't very long [before Lieutenant Loftus arrived on the
scene] because [he] was pretty close to the area." Upon his
arrival, Loftus asked Lawhorn--who had been on the police force
less than a year and "had just come out of the academy"--whether
he had frisked the passengers for weapons for officer safety.
Lawhorn had not thought about conducting pat-down searches
earlier and patted appellant down after Loftus' inquiry.
Lawhorn believed that he patted appellant down before Edmonds
searched the driver's car. During the pat-down, Lawhorn felt a
hard object in appellant's left front pocket which "[he] thought
. . . was a knife." He removed the item, which later proved to
be crack cocaine.
In denying appellant's motion to suppress, the trial court
noted that portions of the testimony of Officers Edmonds and
Lawhorn were inconsistent and that it would give Officer
Edmonds' observations more weight because he was the primary
investigating officer and had more years of experience as a
police officer than did Lawhorn. It found that, at the time
appellant was searched, "the citation . . . had not yet been
issued, and [Officer Edmonds] was still in the car writing." As
a result, it held that the search for weapons was appropriate,
and it denied the motion to suppress.
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The trial court subsequently convicted appellant of the
charged offense.
II.
ANALYSIS
At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant's Fourth Amendment
rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380
S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App.
671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the
evidence in the light most favorable to the prevailing party,
granting to it all reasonable inferences fairly deducible
therefrom. See 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[,] and we give due weight to
the inferences drawn from those facts by resident judges and
local law enforcement officers." McGee v. Commonwealth, 25 Va.
App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing
Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657,
1659, 134 L. Ed. 2d 911 (1996)). However, we review de novo the
trial court's application of defined legal standards such as
probable cause and reasonable suspicion to the particular facts
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of the case. See Shears v. Commonwealth, 23 Va. App. 394, 398,
477 S.E.2d 309, 311 (1996); see also Ornelas, 517 U.S. at 699,
116 S. Ct. at 1659.
Further, the Fourth Amendment requires only that an
objectively reasonable basis exist for a search. See, e.g.,
Whren v. United States, 517 U.S. 806, 812-13, 116 S. Ct. 1769,
1774, 135 L. Ed. 2d 89 (1996). "'[T]hat the officer does not
have the state of mind which is hypothecated by the reasons
which provide the legal justification for the officer's action
does not invalidate the action taken as long as [all] the
circumstances, viewed objectively, justify that action.'" Id.
at 813, 116 S. Ct. at 1774 (quoting Scott v. United States, 436
U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168 (1978))
(emphasis added).
Appellant concedes that Officer Edmonds lawfully stopped
the vehicle in which appellant was riding. Further, appellant
does not contend that he was forced to exit the vehicle or
remain at the scene of the stop against his will and without
legal basis. He contends only that the officers lacked the
reasonable, articulable suspicion necessary to frisk him for
weapons once the stop had been effected.
The "generalized risk to officer safety" which permits
officers "to order occupants to exit a lawfully stopped vehicle"
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is insufficient "to justify a routine 'pat down' of all
passengers as a matter of course." United States v. Sakyi, 160
F.3d 164, 168-69 (4th Cir. 1998); see Maryland v. Wilson, 519
U.S. 408, 414-15, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41 (1997)
(holding that officer may require passengers to exit lawfully
stopped vehicle for officer safety without particularized
suspicion of danger or wrongdoing). An officer may frisk a
passenger in a lawfully stopped vehicle if the officer has
reasonable, articulable suspicion that the passenger poses a
threat to the officer's safety. See, e.g., Lansdown v.
Commonwealth, 226 Va. 204, 212-13, 308 S.E.2d 106, 111-12 (1983)
(in case where vehicle was driven evasively at speeds exceeding
80 m.p.h. and stopped on unlit street and occupants were unable
to provide identification, holding that officer was justified in
believing driver and passengers might be armed and dangerous,
justifying frisk for weapons); James v. Commonwealth, 22 Va.
App. 740, 745-46, 473 S.E.2d 90, 92 (1996) (upholding frisk of
passenger who was in vehicle with person wanted on a felony
warrant and who appeared nervous, failed to comply with
officer's request to keep his hands on dashboard, and kept
asking to exit the vehicle). Further, the attendant
circumstances which provide the necessary reasonable suspicion
to search a passenger do not require that the passenger’s
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conduct itself be suspicious: "A passenger's conduct may be
sufficient to arouse reasonable suspicion, but it is not
necessary when other factors are present." Sakyi, 160 F.3d at
169-70 (citation omitted).
In Sakyi, neither the driver nor the passenger could
produce any identification and, when the driver retrieved his
vehicle registration, the officers spotted drug paraphernalia in
the glove box. Id. at 166. After arresting the driver for
driving on a revoked license and prior to conducting a
consensual search of the car, one of the officers patted the
passenger down for weapons and found cocaine. Id.
Although Sakyi involved drug paraphernalia, the Fourth
Circuit held that a reasonable, articulable suspicion of the
presence of drugs gave rise to a concern for the presence of
guns, which, "in the absence of factors allaying [the officer's]
safety concerns, . . . [permitted the officer to] pat [the
occupants of the vehicle] down briefly for weapons to ensure the
officer's safety and the safety of others." Id. at 169; see
Peguese v. Commonwealth, 19 Va. App. 349, 352-53, 451 S.E.2d
412, 414 (1994) (en banc) (upholding pat-down search of accused
driver whose passenger had engaged in what appeared to be a drug
transaction). In so holding, the Fourth Circuit observed that
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when drugs are suspected in a vehicle and
the suspicion is not readily attributable to
any particular person in the vehicle, it is
reasonable to conclude that all occupants of
the vehicle are suspect. They are in the
restricted space of the vehicle presumably
by choice and presumably on a common
mission.
Sakyi, 160 F.3d at 169.
Here, similar but stronger circumstances provided an
objectively reasonable, articulable suspicion that appellant and
the other passengers presented a danger to Officers Edmonds and
Lawhorn. The evidence, viewed in the light most favorable to
the Commonwealth, proved that Officer Edmonds spotted not drug
paraphernalia in the glove box but a firearm in plain view in
the middle of the dashboard as soon as he approached the vehicle
in which appellant was riding. Although the driver claimed
ownership of the weapon, it was in plain view from outside the
vehicle, and under the principles set out in Sakyi, a reasonable
officer was free to conclude that the weapon could have belonged
to any of the vehicle's occupants. Subsequent events did not
allay officer concerns about safety. When Edmonds asked
appellant and the other passengers to exit the vehicle, at least
some of them appeared nervous and had their hands in their
pockets, and they all moved around a lot and continued to make
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eye contact with each other. 3 Officer Lawhorn instructed
appellant and the other passengers to keep their hands out of
their pockets, and he had to remind them on "a couple of
occasions." Even when Lieutenant Loftus arrived on the scene,
the vehicle's occupants still outnumbered the officers. See
Lansdown, 226 Va. at 213, 308 S.E.2d at 112 (noting that, if
officer had reasonable grounds to fear for his safety, mere
increase in number of officers at scene insufficient as matter
of law to dispel that fear).
Although a brief delay may have occurred between the
officers' initial development of reasonable suspicion for a
pat-down search and the actual execution of the search, no
principle of law provides that the basis for a pat-down search
dissolves if it is not conducted immediately. See Bethea v.
Commonwealth, 245 Va. 416, 420, 429 S.E.2d 211, 213-14 (1993)
(in case decided before Maryland v. Wilson, rejecting argument
of accused that delay in conducting pat-down proved officer had
insufficient concern for his safety to require accused to exit
vehicle); see also United States v. Menard, 95 F.3d 9, 11 (8th
Cir. 1996) (holding that officer's delay in frisking accused
3
The trial court found that all the vehicle's occupants had
their hands in their pockets, but the testimony of Edmonds and
Lawhorn proved only that some of the occupants had their hands
in their pockets.
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until after back-up officer arrived on scene and reminded him of
safety concern did not prove that officer lacked particularized
suspicion for the frisk, especially in light of fact that, in
the interim, officer had found gun on companion of accused and
arrested companion, which was likely to heighten threat accused
posed to officer safety). Nothing in the record indicates that
the facts which provided the basis for the pat-down had ceased
to exist before the pat-down was executed. In fact, the
behavior of some of the passengers during and after their exit
from the car provided additional support for the pat-down of
appellant. Further, the evidence indicates that the pat-down
search of appellant began no more than five minutes after the
officers initiated the stop and first saw the firearm, before
Officer Edmonds had finished issuing a citation for the offense
which provided the basis for the stop, and before Edmonds began
his consensual search of the car. See Menard, 95 F.3d at 11
(noting reasonableness of fear of officer conducting consent
search of car in which armed suspected drug trafficker was a
passenger that vehicle's other occupants, if armed, could pose
safety threat if search revealed contraband).
Under the standards set out in Sakyi, we hold that the
totality of the circumstances provided the officers with the
reasonable suspicion necessary to frisk appellant for weapons.
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Therefore, the trial court did not err in denying appellant's
motion to suppress and convicting him for violating Code
§ 18.2-248.
Because the evidence supports the trial court's finding
that the officers had reasonable, articulable suspicion to
justify the search, we affirm appellant's conviction.
Affirmed.
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