                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.        Record No. 1718-98-3            JUDGE DONALD W. LEMONS
                                            FEBRUARY 23, 1999
JOSHUA ADAM WYATT


              FROM THE CIRCUIT COURT OF PULASKI COUNTY
                        Colin R. Gibb, Judge

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellant.

          Michael J. Barbour (Gilmer, Sadler, Ingram,
          Sutherland & Hutton, on brief), for appellee.

     Joshua Adam Wyatt was charged with possession of cocaine.

By order dated September 2, 1998, the Circuit Court of Pulaski

County granted Wyatt's motion to suppress the evidence found on

his person.   The Commonwealth appealed and, for the reasons

stated below, we reverse and remand.

                             BACKGROUND

     On August 8, 1997, during a routine patrol, Officer A.K.

Anderson of the Pulaski Police Department noticed a vehicle

without functioning license plate ("tag") lights.     He stopped the

vehicle on the side of the road, and approached it from the rear.

He requested and was given a driver's license from the driver,

Joshua Adam Wyatt, and the vehicle registration from the


     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116-010,
this opinion is not designated for publication.
passenger.    The passenger told Officer Anderson that he was the

owner of the vehicle.

        Anderson testified that when he initially stopped the

vehicle, he noticed an odor of alcoholic beverages inside the

car, but that he had not asked Wyatt to step out of the vehicle.

Anderson asked if either of the men had been drinking, and the

passenger responded that he had and "[t]hat's why he's [Wyatt's]

driving."    Anderson then asked Wyatt if he had been drinking, and

Wyatt responded, "No sir.    That's why I'm driving."   Anderson

informed the men that he was going to check the license, and to

issue a warning to the driver for the defective "tag" light.

When he returned to his patrol car, Anderson could not find his

warning ticket book.    Anderson checked the license and

registration and found both to be valid.    While Anderson was in

his patrol car, Sergeant Eric Todd Montgomery of the Pulaski

Police Department arrived at the scene.    Montgomery testified

that he stood outside the passenger window and shined a

flashlight at the passenger.

        Anderson then returned to the car at the driver's side.

Anderson and Montgomery testified that they did not have any

conversation at this time.    Anderson testified that it was his

intention at that time to "go back up to the driver and release

him."    However, when Anderson arrived at the window, he noticed

that Wyatt was breathing very rapidly.    While still holding

Wyatt's license and the vehicle registration, Anderson asked

Wyatt to step out of the car.




                                 - 2 -
        At Anderson's request, Wyatt stepped out of the vehicle, and

Anderson stepped back a few feet.    As Wyatt walked toward

Anderson, Anderson noticed "a faint odor associated with an

alcoholic beverage about his person."    Anderson again asked Wyatt

if he had been drinking.    Wyatt stated that he had a "sip of

beer" earlier in the evening.    Anderson testified that he was

going to administer a field sobriety test to Wyatt, when he

noticed that Wyatt was holding his right hand in the pocket of

his blue jeans.    Anderson asked Wyatt to take his hand out of his

pocket, and Wyatt complied.    Anderson explained to Wyatt that he

had asked Wyatt to remove his hand from his pocket because

Anderson did not know if Wyatt had any weapons on his person.

Anderson then asked Wyatt if he was carrying any weapons.     Wyatt

responded, "No, sir."

        Anderson then asked Wyatt for permission to pat him down for

any weapons.    Wyatt gave his permission for Anderson to pat him

down.    As Anderson moved his hand toward Wyatt to begin the pat

down, Wyatt brought his hands down in front of him, and stated,

"I do have a pocket knife here."    Anderson stated, "Don't pull

out no knife at me," and Wyatt pulled his hand back.    Anderson

felt the outside of the right pocket, in which he felt what he

believed to be a very small pocketknife.

        Anderson then patted the left front pants pocket, and felt

what he believed to be "about a six to eight inches in length

metal object," and asked Wyatt what it was.    Wyatt stuck his left

hand into his pocket, and Anderson immediately placed a loose

grasp on his wrist, and asked him, "Do you have a weapon on you?"



                                 - 3 -
Wyatt responded that he did not.   Anderson testified that Wyatt

began breathing rapidly again, and Anderson asked, "Do you have

any drugs on you?"   At that point, Wyatt pulled his wrist away

from Anderson and fled.    Wyatt was taken to the ground, and began

yelling, "Don't hurt me.   Don't hurt me.   I don't have no [sic]

weapons.   I've got roaches."   Anderson understood "roaches" to be

a street term for hand-rolled marijuana cigarettes.   After

searching Wyatt, Anderson found the "roaches," a cigarette pack

with a small amount of cocaine and some marijuana inside.     The

hard metal item that Anderson felt was a large pair of tweezers

of the type that might be used to smoke marijuana.

     Wyatt moved to suppress the evidence recovered in the

traffic stop arguing that because Anderson held Wyatt's license

and the vehicle registration after he had determined that he was

only going to issue Wyatt a warning for a traffic violation,

Wyatt was illegally detained.   Wyatt argued that because he was

held beyond the time necessary to issue him a warning, unless

Anderson had objectively reasonable suspicion that Wyatt was

engaged in some other type of unlawful conduct, Anderson had no

right to detain him.   Finding that Wyatt had been initially

lawfully detained, but that the lawful detention had ended prior

to Anderson asking him to exit his vehicle, the trial court

granted Wyatt's motion to suppress the evidence found on his

person.

     On appeal, the Commonwealth argues that the trial court

erred in concluding that "the lawful detention had ended prior to

Officer Anderson asking [Wyatt] to exit the vehicle" and that



                                - 4 -
Anderson could no longer order Wyatt out of the car, citing

Pennsylvania v. Mimms, 434 U.S. 106 (1977).      The Commonwealth

also argues that the trial court erred in concluding that, at the

time Anderson asked Wyatt to exit the vehicle, Anderson did not

have reasonable articulable suspicion to believe that Wyatt was

engaged in criminal activity other than that which prompted the

stop.

        The Commonwealth may seek an interlocutory appeal of a trial

court's order which suppresses evidence on the grounds that it

has been obtained in violation of the provisions of the Fourth,

Fifth or Sixth Amendments to the Constitution of the United

States or Article I, Sections 8, 10 or 11 of the Constitution of

Virginia.     See Code § 19.2-398.   In reviewing the ruling of a

trial court on a motion to suppress, we will "consider the

evidence in the light most favorable to the prevailing party

below, and the decision will not be disturbed unless it is

plainly wrong or without evidence to support it."       Commonwealth

v. Thomas, 23 Va. App. 598, 609, 478 S.E.2d 715, 720 (1996)

(citations omitted).
                 OFFICER'S ABILITY TO ORDER DEFENDANT
                          OUT OF THE VEHICLE

        Wyatt does not contest the validity of the initial stop of

the vehicle; rather, he maintains that Anderson's intention to

give him a warning and to let him go concluded the stop.

Anderson did not find any outstanding warrants on file for

Wyatt's arrest, and the driver's license and vehicle registration

were valid.    Having determined that he was only going to issue

Wyatt a verbal warning for the traffic violation, Anderson



                                 - 5 -
returned to the vehicle.    Anderson had not returned Wyatt's

driver's license and the vehicle registration.     Anderson

testified that when he approached the car, he again smelled the

odor of alcoholic beverages, and noticed that Wyatt was breathing

very rapidly.    Anderson became concerned that Wyatt may have been

drinking, despite his earlier statement that he had not.       He had

not given Wyatt a warning for the defective tag light at the time

he asked him to step out of the car, nor had he told Wyatt that

he was free to leave.

     A police officer making a routine traffic stop may order a

driver or passenger out of the car for safety reasons, even if

the officer has no reason to suspect either person of criminal

activity.     Maryland v. Wilson, 519 U.S. 408 (1997); Mimms, 434

U.S. 106; Welshman v. Commonwealth, 28 Va. App. 20, 32, 502

S.E.2d 122, 128 (1998).

     In Mimms, the Court stated that the safety considerations of

the officer making a valid traffic stop outweighed the personal

liberty interest of the driver implicated when he was ordered to

step out of the car.     Mimms, 434 U.S. at 110.   The Court

explained,
             [w]e think it too plain for argument that the
             State's proffered justification "the safety
             of the officer" is both legitimate and
             weighty. Certainly it would be unreasonable
             to require that police officers take
             unnecessary risks in the performance of their
             duties. And we have specifically recognized
             the inordinate risk confronting an officer as
             he approaches a person seated in an
             automobile. According to one study,
             approximately 30% of police shootings
             occurred when a police officer approached a
             suspect seated in an automobile. We are
             aware that not all these assaults occur when



                                 - 6 -
          issuing traffic summons, but we have before
          expressly declined to accept the argument
          that traffic violations necessarily involve
          less danger to officers than other types of
          confrontations. Indeed, it appears that a
          significant percentage of murders of police
          officers occurs when the officers are making
          traffic stops.

Id. (citations omitted).

     When compared to the police officer's "important interest,"

the Court held that the driver's personal liberty interest in

being asked to step out of the car was "de minimis."     Id. at 111.

Therefore, the Court held, "[w]hat is at most a mere

inconvenience cannot prevail when balanced against legitimate

concerns for the officer's safety."      Id.

     In Wilson, the United States Supreme Court extended its

holding in Mimms to allow an officer to order passengers out of

the car during a traffic stop.     Wilson, 519 U.S. at 410.   The

Court reasoned,

          [d]anger to an officer from a traffic stop is
          likely to be greater when there are
          passengers in addition to the driver in the
          stopped car. While there is not the same
          basis for ordering the passengers out of the
          car as there is for ordering the driver out,
          the additional intrusion on the passenger is
          minimal. We therefore hold that an officer
          making a traffic stop may order passengers to
          get out of the car pending completion of the
          stop.
Id. at 415.   Based upon the holdings of both Mimms and Wilson, we

recognize the well-established rule that an officer may order any

occupant out of a vehicle pursuant to a valid traffic stop.

     Recently, we confronted the issue of when a stop is

completed in Commonwealth v. Rice, 28 Va. App. 374, 504 S.E.2d

877 (1998).   In Rice, a Commonwealth's appeal, we reversed the



                                 - 7 -
trial court's decision to grant the defendant's motion to

suppress evidence obtained from a search of his person following

a valid traffic stop.   Rice was stopped because his left

headlight was out.   The officer asked for and was given Rice's

driver's license.    After checking his license and finding no

outstanding warrants for his arrest, the officer walked back to

Rice's car.   While still holding Rice's license, the officer

asked Rice if he could search his vehicle and person.        Rice

questioned the officer's basis for the search.     The officer

agreed that he did not have probable cause to search, and told

Rice that he would need Rice's permission.     When the officer

asked again if he could search Rice's vehicle and person, Rice

consented.    A second officer found brass knuckles in Rice's

pocket.   Rice was charged with carrying a concealed weapon after

having previously been convicted of a felony, a violation of Code

§ 18.2-308.2.

     While Rice did not contest the validity of his initial

detention, he argued that because the officer retained Rice's

driver's license he was illegally detained and any evidence

seized pursuant to the search was "fruit of the poisonous tree."

The Commonwealth disagreed, arguing that the stop was based on

reasonable articulable suspicion, that "the traffic stop had not

concluded at the time consent to search was requested," and that

Rice voluntarily gave his consent.      We agreed with the

Commonwealth that the detention had not concluded at the time of

the officer's request, noting that at the time the officer

returned to Rice's vehicle, he had "several options, including



                                - 8 -
issuing a warning and allowing Rice to continue on his way,

issuing a summons for operating a motor vehicle with defective

equipment, or confiscating the registration card, license plates,

and any decals of the vehicle . . . ."   Id. at 377, 504 S.E.2d at

879.   Our holding in Rice with respect to the duration of the

stop is similar to the case now before us.   Here, Anderson

stopped a vehicle driven by Wyatt for a traffic violation, a

defective tag light.   Anderson noticed an odor of alcoholic

beverages emanating from the inside of the vehicle.    He asked

Wyatt and the passenger if either had been drinking.   The

passenger stated that he had been drinking, and both stated that

Wyatt had not and was the "designated driver."   Anderson told

Wyatt that he was going to write him a warning ticket.   Anderson

then returned to his vehicle to check Wyatt's license and the

vehicle registration, which were both valid.   Anderson also

discovered that he did not have his warning ticket book with him.

Anderson walked back to Wyatt's window to give him a verbal

warning and to tell him that he was free to leave, when he

noticed that Wyatt appeared to be breathing very rapidly.

Anderson became suspicious that Wyatt had been drinking, and he

again noticed the odor of alcohol inside the car.   Without

returning Wyatt's license to him or telling him that he was free

to go, Anderson asked Wyatt to step out of the car.    Once Wyatt

was out of the car, Anderson determined that Wyatt had been

drinking and upon further questioning, Wyatt revealed that he had

previously lied to the officer.




                               - 9 -
     In granting Wyatt's motion to suppress, the trial court

reasoned, "[w]hen Officer Anderson returned to [Wyatt's] vehicle,

his right to further detain [him] ended unless he had an

objectively reasonable suspicion that the defendant was engaged

in criminal behavior so as to justify additional detention."       As

we held in Rice, the stop had not concluded at the time Anderson

asked Wyatt to step out of the car.

     Because we hold that Wyatt was lawfully detained pursuant to

a traffic stop at the time of Anderson's request, it is not

necessary for us to address whether the officer had reasonable

articulable suspicion to believe that Wyatt was engaged in

additional criminal activity.    Pursuant to Mimms and its progeny,

including Wilson, Anderson was entitled to ask Wyatt to step out

of his car during the traffic stop.      The trial court's order

suppressing the evidence is reversed, and the case is remanded to

the trial court for further proceedings consistent with this

opinion.

                                               Reversed and remanded.




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