                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia


JESSE JEROME HENDREN
                                           MEMORANDUM OPINION * BY
v.   Record No. 1961-99-2                   JUDGE MARVIN F. COLE
                                                AUGUST 1, 2000
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                     William L. Wellons, Judge

          Tracy L. Quackenbush, Assistant Public
          Defender, for appellant.

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


     Jesse Jerome Hendren, appellant, was convicted in a bench

trial of possession of cocaine, obstruction of justice and driving

without an operator's license.   On appeal, appellant contends the

trial judge erred by denying his motion to suppress.     We disagree

and affirm.

                            BACKGROUND

     On September 27, 1998, appellant approached a traffic

checking detail on Sinai Road in Halifax County.    Deputy Sheriff

Steve Moore testified that appellant "pulled up to the checking

detail" but "wouldn't stop at first."    Moore "had to instruct


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
[appellant] two or three times to stop the car."   When Moore asked

for appellant's driver's license, appellant "said he did not have

it with him at the time."   Moore then "asked [appellant] to pull

over to the side of the road, so he wouldn't block the traffic

that was coming through."   Appellant's car contained three

passengers.   Moore asked appellant to step out of the car and

again inquired about appellant's driver's license.   "When

[appellant] got out of the car, he had his right hand closed[,]

. . . [and h]e was trying to hide his hand from [Moore]."     Moore

asked appellant to keep his hands where Moore could see them, but

appellant "kept moving his hand around."   Moore testified as

follows:

           He moved his hand around behind his leg,
           trying to hide it from me. Again, I told
           him to open his right hand and keep it where
           I could see it. He tried to stick his hand
           in his pocket, and when he tried to put his
           hand in his pocket, [Moore and another
           officer] grabbed him.

     Appellant's "hand still wouldn't open."   A struggle ensued,

and the officers placed appellant on the ground.     After subduing

appellant, the officers "turned him over on his left side and

found . . . what appeared to be crack cocaine up under him."

     At the March 10, 1999 hearing on appellant's motion to

suppress, appellant argued that he was unlawfully seized and

searched based solely on a traffic stop.   According to

appellant, "there was no probable cause" or "reasonable

suspicion to believe he had done anything criminal."    He argued

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that "having a closed hand does not indicate he had a weapon,

and it doesn't indicate criminal activity."

                                ANALYSIS

                                The Law

      Once a vehicle has been lawfully stopped, an officer is

authorized to "take necessary measures to determine whether the

person is in fact carrying a weapon and to neutralize the threat

of physical harm."   Terry v. Ohio, 392 U.S. 1, 24 (1968).    Such

measures may include a pat-down search for weapons.   See id. at

27.   The question is would "the facts available to the officer

at the moment of the seizure or the search 'warrant a man of

reasonable caution in the belief' that the action taken was

appropriate?"   Id. at 21-22.

           The purpose of this limited [protective]
           search is not to discover evidence of crime,
           but to allow the officer to pursue his
           investigation without fear of violence
           . . . . So long as the officer is entitled
           to make a forcible stop, and has reason to
           believe that the suspect is armed and
           dangerous, he may conduct a weapons search
           limited in scope to his protective purpose.

Adams v. Williams, 407 U.S. 143, 146 (1972) (discussing Terry).

      In determining the reasonableness of a search, a court must

balance "'the need to search [or seize] against the invasion

which the search [or seizure] entails.'"   Terry, 392 U.S. at 21

(quoting Camara v. Municipal Court, 387 U.S. 523, 536-37

(1967)).   In Terry, the Supreme Court explained:



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          [T]here is the more immediate interest of
          the police officer in taking steps to assure
          himself that the person with whom he is
          dealing is not armed with a weapon that
          could unexpectedly and fatally be used
          against him. Certainly it would be
          unreasonable to require that police officers
          take unnecessary risks in the performance of
          their duties. American criminals have a
          long tradition of armed violence, and every
          year in this country many law enforcement
          officers are killed in the line of duty, and
          thousands more are wounded. Virtually all
          of these deaths and a substantial portion of
          the injuries are inflicted with guns and
          knives.

               In view of these facts, we cannot blind
          ourselves to the need for law enforcement
          officers to protect themselves and other
          prospective victims of violence in
          situations where they may lack probable
          cause for an arrest. When an officer is
          justified in believing that the individual
          whose suspicious behavior he is
          investigating at close range is armed and
          presently dangerous to the officer or
          others, it would appear to be clearly
          unreasonable to deny the officer the power
          to take necessary measures to determine
          whether the person is in fact carrying a
          weapon and to neutralize the threat of
          physical harm.

Id. at 23-24.

               A search for weapons in the absence of
          probable cause to arrest, however, must,
          like any other search, be strictly
          circumscribed by the exigencies which
          justify its initiation. Thus, it must be
          limited to that which might be used to harm
          the officer or others nearby, and may
          realistically be characterized as something
          less than a "full" search, even though it
          remains a serious intrusion.

Id. at 25-26.



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     "The officer need not be absolutely certain that the

individual is armed; the [ultimate] issue is whether a

reasonably prudent man in the circumstances would be warranted

in the belief that his safety or that of others was in danger."

Id. at 27.     "The validity of a seizure '"turns on an objective

assessment of the officer's actions in light of the facts and

circumstances confronting him at the time," and not on the

officer's actual state of mind at the time the challenged action

was taken.'"     Welshman v. Commonwealth, 28 Va. App. 20, 30, 502

S.E.2d 122, 127 (1998) (en banc) (citations omitted).       Moreover,

"[a]n officer is entitled to view the circumstances confronting

him in light of his training and experience, and he may consider

any suspicious conduct of the suspected person."     James v.

Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92 (1996).

             If, under Terry, a police officer is
             justified in conducting a protective weapons
             search based upon the officer's reasonable
             belief that a suspect may be armed and
             dangerous, such a weapons search would
             necessarily include the right to search a
             clenched fist. Common sense would not
             dictate otherwise. Weapons are normally
             held in one's hands. Hence, a search for
             weapons in a suspect's hands is reasonable
             under such circumstances. Otherwise, a
             suspect could avoid the detection of a
             weapon by simply hiding it in his hand,
             where it remains ready for use.

State v. Williams, 544 N.W.2d 350, 353 (Neb. 1996).




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                                Application

        Appellant does not contest the validity of the traffic

checkpoint or the validity of his stop.        Instead, he argues

that:       (1) the officers' actions in grabbing his hand when he

thrust it into his pocket "[were] not proper as a search

incident to the traffic violation"; and (2) his "behavior did

not otherwise justify the search."

        When appellant approached the traffic checkpoint, he

initially refused to stop his car.         It was not until the officer

instructed appellant two or three times to stop that he did so.

Upon further investigation, the officer learned that appellant

did not have in his possession a driver's license.        Appellant's

reluctance to stop the car and failure to possess a driver's

license properly aroused the officer's suspicion and supported

Officer Moore's decision to have appellant pull over so he could

investigate the situation.      Under those circumstances, Moore did

not know whether appellant possessed a valid license. 1

Appellant's car contained three passengers.        When appellant

exited his car, he kept his right hand closed and tried to hide


        1
       By not having a driver's license in his possession when he
was stopped, appellant was in violation of Code § 46.2-104,
failure to carry a driver's license, a traffic infraction
punishable by a fine. At the time of the incident, Moore also
had to consider, inter alia, whether appellant had a valid
driver's license, see Code § 46.2-300, whether he was driving on
a suspended or revoked license, see Code § 46.2-301, or whether
he was driving after having been declared a habitual offender,
see Code § 46.2-357.


                                   - 6 -
it.   At this point, the police had observed three highly

suspicious circumstances warranting further investigation.

Appellant refused Moore's order to open his hand and attempted

to place his hand into his pants pocket, causing the officers to

grab his hand.

      In light of the facts and circumstances confronting the

officers at the time, including appellant's suspicious conduct,

see James, 22 Va. App. at 745, 473 S.E.2d at 92, the officers

were justified in seizing appellant's hand.   We find the

circumstances under which the police encountered appellant,

namely, appellant's escalating suspicious behavior during a

valid traffic stop, "'warrant[ed] a man of reasonable caution in

the belief' that the action taken was appropriate[.]"   Terry,

392 U.S. at 21.   In other words, we hold that "a reasonably

prudent man in the circumstances would be warranted in the

belief that his safety or that of others was in danger."     Id. at

27; see also United States v. Hensley, 469 U.S. 221, 235 (1985)

(after officers validly stopped suspect pursuant to Terry, "they

were authorized to take such steps as were reasonably necessary

to protect their personal safety and to maintain the status quo

during the course of the stop"); People v. Shackelford, 546 P.2d

964, 967 (Colo. Ct. App. 1976) (during valid Terry stop,

defendant kept his hand closed and refused to open it; officers

forced it open and found stolen credit cards; upholding search

"prompted by the defendant's suspicious and unusual movements in

                               - 7 -
response to the confrontation"); State v. Bridges, 610 So. 2d

827, 828-29 (La. Ct. App. 1992) (holding that officers were

justified in forcing open defendant's clenched fist during Terry

stop); Worthey v. State, 805 S.W.2d 435, 437, 439 (Tex. Crim.

App. 1991) (upholding search of purse where, during Terry stop,

defendant disobeyed officer's order not to move or hide her

hands); Manry v. State, 621 S.W.2d 619, 622-23 (Tex. Crim. App.

1981) (defendant's "unusual behavior" when stopped justified

weapons search); Welshman, 28 Va. App. at 34, 502 S.E.2d at 129

(approving frisk for weapons; holding that police officer may

preserve the status quo by ordering detainee to place his hands

where officer can see them).

     Therefore, the trial judge did not err in denying

appellant's motion to suppress the evidence.   Accordingly, we

affirm.

                                                         Affirmed.




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