COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
KEITH LAMONT SANDERS
MEMORANDUM OPINION * BY
v. Record No. 2149-00-1 JUDGE G. STEVEN AGEE
JUNE 19, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
Prentis Smiley, Jr., Judge
(Mark T. Del Duca; Stallings & Richardson,
P.C., on brief, for appellant). Appellant
submitting.
(Mark L. Earley, Attorney General; Marla
Graff Decker, Assistant Attorney General, on
brief, for appellee). Appellee submitting on
brief.
On June 27, 2000, Keith Lamont Sanders (Sanders) was
convicted in the York County Circuit Court, sitting without a
jury, on charges of possession of cocaine with intent to
distribute, possession of a firearm by a felon, and possession
of a firearm while possessing cocaine. Sanders was sentenced to
serve a term of ten years imprisonment. Sanders appeals his
conviction, averring that the trial court erred in denying his
motion to suppress the Commonwealth's evidence alleged to have
been gathered in an illegal search and seizure in violation
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
of the Fourth Amendment to the U. S. Constitution. For the
following reasons, we affirm the actions of the trial court and
Sanders' convictions.
BACKGROUND
In the early hours of October 7, 1998, York County police
officers responded to a robbery that occurred after midnight at
the Food Lion grocery store on Route 134. Virginia State
Trooper Lowrance and a trainee, Trooper Maki, received a radio
message to "be on the lookout" for the robbery suspect. The
dispatch included a description of the suspect and details of
the robbery. Since the troopers were in the area of the crime,
they proceeded to the Food Lion.
Trooper Lowrance viewed a vehicle pull out in front of the
police car and drive around to the rear of the shopping center.
The vehicle stopped behind the shopping center, and the troopers
approached it. The driver was a father in search of his son,
who was out late.
The troopers then went to the front of the shopping center
to make contact with the York County officers on the scene.
There Trooper Lowrance saw a young man on a bicycle who matched
the description of the son of the driver to whom the trooper had
just spoken. The troopers spoke with the young man and learned
that someone might be in the "wood line in the southern end of
the shopping center" who matched the description of the robbery
suspect. Although the store employees could not describe the
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robber's face or hair due to his wearing a ski mask, the young
man had seen the man without a mask. He described the same
general clothing and gave the same general description as the
store employees.
Trooper Lowrance decided that the police should search the
wooded area for "a black male with a close-cut haircut" wearing
dark clothing ("dark pants as in black or dark colored jeans or
sweats"). Trooper Lowrance could not recall receiving the
height of the lone suspect. The police also knew that the
individual "displayed a silver chrome-plated type weapon" during
the robbery.
Trooper Lowrance, accompanied by York County Deputy
O'Bryan, entered the woods on the south side, towards the rear
of the shopping center. As Trooper Lowrance approached a
clearing he saw a vehicle stop nearby. Oncoming headlights
illuminated a black male whom the trooper believed came from the
"wood line."
Trooper Lowrance watched as the black male approached the
stopped vehicle and got into the passenger seat. The trooper
could not see into the vehicle, so he ran through the woods in
order to get a better view of the car which, because of a
vehicle behind it, was proceeding into the adjacent subdivision.
Based upon the observed activities of the black male, who
matched the general description of the robber and was in close
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proximity to the robbery, Trooper Lowrance decided to stop the
vehicle.
As Deputy O'Bryan radioed for assistance to stop the
vehicle, Trooper Lowrance walked out of the woods and flagged
down the vehicle. It was 2:00 a.m. The trooper asked the
female driver for identification but she did not have any
identification with her. Trooper Lowrance then asked the
passenger, Sanders, for his identification. Sanders, the
earlier-observed black male, who matched the robber's general
description, provided the trooper with a Virginia identification
card and told him that his driver's license was suspended.
As Deputy O'Bryan and Trooper Maki came out of the woods
and over to the car, Trooper Lowrance began asking Sanders
questions. Sanders appeared "extremely nervous" and seemed to
"want to leave as quick as possible." According to Deputy
O'Bryan, Sanders was "twitching in the seat, moving around, but
he would never look at [the officers] directly."
Trooper Lowrance asked Sanders what he was doing in the
area. Sanders told the trooper that he had not been in the area
for very long. During the conversation, Sanders constantly
moved his hands and would not keep them in sight. Concerned for
safety and aware that the at-large robber was armed, Trooper
Lowrance asked Sanders to keep his hands where the officers
could see them. Sanders continued to be "eager to leave,"
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continually asking "if there was anything else" the officers
needed from him.
At Trooper Lowrance's request, York County Investigator
Extine, the initial officer to arrive at Food Lion and who had a
more detailed description of the suspect, arrived at the scene
of the stop. According to the investigator's notes, the suspect
was "a black male . . . around five foot nine, weighing
approximately 125 pounds . . . wearing all black clothes and [a]
blue stocking mask, [as well as] one latex glove and another
glove [which possibly had] the fingers cut out." The robber was
armed with a "chrome or silver colored semi-automatic handgun."
Deputy O'Bryan and Investigator Extine believed Sanders matched
the general description.
Investigator Extine asked the occupants to get out of the
vehicle and frisked them for the officers' safety. No weapons
were found in the pat-down search.
Once Sanders exited the vehicle, it was apparent that he
neither matched the weight nor the height given by the robbery
witnesses/victims. Despite the discrepancy, however,
Investigator Extine did not discount Sanders' possible
involvement in the robbery since the witnesses/victims had been
ordered at gunpoint to get down on the floor and gave their
description from that perspective. The investigator continued
to pursue the possibility that Sanders was the robbery suspect.
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Investigator Extine and Trooper Lowrance conducted a
cursory search of the vehicle as the occupants exited, by
shining their flashlights into the interior and glancing over
the compartment. Trooper Lowrance scanned the driver's side of
the vehicle while Investigator Extine did the same on the
passenger side of the vehicle. The two officers then met at the
rear of the vehicle to review their observations. Upon learning
that Investigator Extine did not look under the front passenger
seat or in the glove compartment, the area in which Sanders had
been seated, Trooper Lowrance suggested the investigator perform
a more thorough check of those specific areas.
In the glove compartment a small caliber silver-plated gun,
which was "very similar, if not identical" to the description of
the robber's weapon, was found. In addition, a large bag
containing several baggies, which were filled with a "rock-like
substance consistent with crack cocaine," was discovered. The
search of the specific area took "a matter of [a] second, ten,
fifteen seconds."
ANALYSIS
In his motion to suppress the handgun and drugs, and in
this appeal, Sanders challenges his detention once it was
determined that he did not fit the specific description of the
robbery suspect. Sanders does not challenge the initial stop of
the vehicle by Trooper Lowrance. "At a hearing on a defendant's
motion to suppress, the Commonwealth has the burden of proving
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that a warrantless search or seizure did not violate the
defendant's Fourth Amendment rights." Reel v. Commonwealth, 31
Va. App. 262, 265, 522 S.E.2d 881, 882 (2000). "It[, however]
is well established that, on appeal, appellant carries the
burden to show, considering the evidence in the light most
favorable to the Commonwealth, that the denial of a motion to
suppress constitutes reversible error." Motley v. Commonwealth,
17 Va. App. 439, 440-41, 437 S.E.2d 232, 233 (1993). "Ultimate
questions of reasonable suspicion and probable cause . . .
involve questions of both law and fact and are reviewed de novo
on appeal. This Court is 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." Neal v. Commonwealth, 27 Va. App. 233, 237, 498
S.E.2d 422, 424 (1998) (citations omitted).
Upon the lawful stop of an automobile, this Court has
recognized that the balancing of the interests of the
individual(s) and society may permit the police officers, who
possess a reasonable articulable suspicion, to require a
vehicle's occupants to exit the vehicle. See id. (citing
Hatcher v. Commonwealth, 14 Va. App. 487, 491-92, 419 S.E.2d
256, 258-59 (1992)). If the police officers still possess a
reasonable articulable suspicion, upon the occupants' exit, that
the suspect is dangerous and may have immediate access to a
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weapon, the officers may frisk the occupants, Terry v. Ohio, 392
U.S. 1, 21 (1968), and search those portions of the vehicle's
passenger compartment in which a weapon might be hidden.
Michigan v. Long, 463 U.S. 1032, 1049 (1983) (citing Terry, 392
U.S. at 21).
A. The Detention
Sanders concedes that the officers investigating the
robbery and who witnessed his run from the nearby wood line
adjoining the Food Lion shopping center had a reasonable
articulable suspicion justifying the stop of the vehicle he
occupied and frisking him. However, it is Sanders' contention
that once he exited the vehicle and the police officers realized
that his physical measurements did not closely match those of
their suspect, his continued detention and the search of the car
were unlawful. We disagree.
Despite the fact that once he was out of the vehicle and it
was apparent that he did not appear to be either the weight or
height of the robber as described by victim-witnesses, Sanders
still fit the general description. Investigator Extine remained
concerned that Sanders was the robber and continued the
investigation, as some of the victims had been ordered to the
floor at gunpoint. He believed those circumstances of the
robbery, where dimensions may have been obscured, warranted
further investigation despite the discrepancies between the
general description and Sanders' appearance.
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Moreover, based upon their training and experience, the
officers still believed that Sanders, who matched the general
description, had run at 2:00 a.m. from the wood line in the
vicinity of the robbery, and was fidgety and evasive in their
presence, was involved in the robbery. See generally, Richards
v. Commonwealth, 8 Va. App. 612, 616, 383 S.E.2d 268, 270-271
(1989). These facts clearly support the continued brief
detention necessary to confirm or dispel the officers' suspicion
that Sanders was the robber or otherwise involved.
B. The Search of the Vehicle
When police officers detain a vehicle's occupants and
reasonably believe the occupants to be dangerous with the
ability to gain control of a weapon in the vehicle, the officers
may search the portions of the vehicle's passenger compartment
where a weapon may be hidden. See Long, 463 U.S. at 1049
(citing Terry, 392 U.S. at 21). In the case at bar, the
officers at 2:00 a.m. were investigating Sanders' connection to
an armed robbery nearby (that occurred just a short time before)
in which a gun had yet to be recovered. The officers reasonably
believed that the evasive and fidgety Sanders matched the
description of the robbery suspect. It was, therefore,
reasonable for the officers to believe a gun might be in the
vehicle, easily accessible to Sanders, and that their safety was
in question. Under these circumstances, the officers were
lawfully permitted to search the vehicle, as it was reasonable
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for them to believe that Sanders posed a danger if he were
permitted to re-enter the vehicle. See id. at 1050.
The contention that the search of the glove compartment was
intrusive, burdensome and unlawful is without merit. First, the
return to the front passenger area was a matter of seconds after
the cursory search was performed. It was thus brief and no more
burdensome than the cursory search. Secondly, Long permits
officers, with a reasonable suspicion, to search the passenger
compartment in which a weapon may be placed or hidden. Id. at
1049-50; see also Glover v. Commonwealth, 3 Va. App. 152,
156-57, 348 S.E.2d 434, 437-38 (1986). The underside of the
front passenger seat and the glove compartment are areas where a
gun could be hidden, and clearly are permissible areas to be
searched under Long. Therefore, the search was not
impermissibly intrusive.
Lastly, but most importantly, the officers' fears and
reasonable suspicion did not disappear upon the initial cursory
search. Shining flashlights and glancing over what was in plain
view did not dispel the officers' suspicions. The suspicions
remained when they realized that the immediate area to which
Sanders had access was not searched.
We can find no case law, and Sanders does not cite any,
standing for the proposition that officers, who have a
reasonable suspicion that a suspect is involved in criminal
activity, cannot make an immediate 15-second check, one
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performed right after an initial search and separated from the
initial search by only a brief "did you check" conversation, of
an overlooked area where a suspect has had, and could again
have, access to a weapon. Considering the reasonable suspicion
permitting the cursory search was proper (which Sanders
concedes), the minimal elapsed time between the cursory search
and the search of the glove compartment, and the few additional
seconds it took to look in the glove compartment and find the
gun and cocaine are of no substantive legal consequence. We
hold that the search of the vehicle was lawful.
The decision of the trial court to deny the motion to
suppress is affirmed, and Sanders' convictions are upheld.
Affirmed.
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