                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia


TRACY LAMONT WILLIAMS
                                          MEMORANDUM OPINION * BY
v.   Record No. 1827-00-3               JUDGE JAMES W. BENTON, JR.
                                               JULY 24, 2001
COMMONWEALTH OF VIRGINIA AND
 CITY OF DANVILLE


          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                      James F. Ingram, Judge

          S. Jane Chittom, Appellate Defender (Public
          Defender Commission, on briefs), for
          appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General; William H.
          Fuller, III, Commonwealth's Attorney; James
          C. Martin, Assistant Commonwealth's Attorney,
          on briefs), for appellees.


     Tracy Lamont Williams appeals his convictions for three

felonies and two misdemeanors on the ground that the trial judge

improperly admitted evidence obtained through an illegal search

and seizure.    He also contends the evidence against him was

insufficient to justify a conviction for one of the

misdemeanors.   We affirm the convictions, but we remand the case

for clarification of the sentencing order.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                  I.

     The grand jury indicted Williams for the felonies of

possession of cocaine, possession of a firearm while possessing

cocaine, and possession of a firearm after conviction of a

felony.    In addition, warrants charged Williams with

misdemeanors of attempting to impede a law enforcement officer

and brandishing a firearm.

     The evidence proved that Officer Samuel Bray was sitting in

his patrol vehicle when he saw a white Chrysler, which he had

stopped two weeks earlier while it was being driven by a person

with a suspended license.    The officer noticed that the driver

appeared to be the same person, and he activated his lights.

After the car stopped and the officer exited his vehicle, the car,

which contained two occupants, sped away.

     The officer pursued the car, saw it stop, and saw the driver

and passenger run into the woods.      As the two men ran in the same

direction, the officer chased them and gained on Williams, the

passenger.   Williams looked back at the officer, brought his hands

"in front of him towards his waist, and then he fell to the

ground."   He lay face down with his hands under him at his waist.

The officer testified that he stopped his pursuit of the driver

because he "was in fear of [his] safety" and "was not going to

turn [his] back on" Williams.

     The officer twice commanded Williams to show him his hands.

Williams did not comply.    When the officer grabbed Williams'

                                - 2 -
right arm, Williams pulled his left hand over his left shoulder.

He was holding a gun with the muzzle pointed at the officer.

The officer lay on Williams and attempted to seize the handgun.

Eventually, the officer used a chemical spray to subdue

Williams.   After handcuffing Williams, the officer searched him

and found a razor blade with cocaine residue on it.

       The trial judge ruled that no Fourth Amendment violation

occurred and denied the motion to suppress.      At the conclusion

of all the evidence, he convicted Williams on all charges.

                                 II.

       The Commonwealth first contends that Code § 19.2-266.2 bars

Williams' challenge to the admission of the evidence against

him.   The statute requires that motions seeking to suppress

evidence on Fourth Amendment grounds be made in writing seven

days before trial.   Williams, however, filed his motion four

days before the suppression hearing and his trial.

       The Commonwealth did not object at the hearing or at trial

to the timeliness of the motion.    Furthermore, the trial judge

decided the suppression issue in favor of the Commonwealth.      We

have decided in the past that such objections, when raised on

appeal, are moot when the trial judge considered and denied a

motion to suppress on its merits.       Neal v. Commonwealth, 27 Va.

App. 233, 236 n.1, 498 S.E.2d 422, 424 n.1 (1998).      Therefore,

we will consider the issue on its merits.



                                - 3 -
                                III.

       Williams contends that the trial judge erred in ruling the

officer had reasonable suspicion to stop and detain him.      The

Commonwealth argues that the warrantless seizure of Williams

lawfully flowed from the officer's right to detain him at the

car.

       Although a police officer may not routinely search a

passenger simply by virtue of the passenger's occupancy in a

vehicle, United States v. De Rie, 332 U.S. 581, 587 (1948), "an

officer making a traffic stop may order passengers to get out of

the car pending completion of the stop."     Maryland v. Wilson,

519 U.S. 408, 415 (1997).   In Wilson, the Supreme Court did not

describe the officer's order to the passenger as a seizure but

rather observed that once the car is stopped "the additional

intrusion on the passenger is minimal."     Id. (emphasis added).

Indeed, the Court "express[ed] no opinion" on the issue whether

"an officer may forcibly detain a passenger for the entire

duration of the stop."    Id. at 415 n.3.   Although the United

States Supreme Court has not so held, "this Court has previously

held that police officers may also detain passengers beside an

automobile until the completion of a lawful traffic stop."

Harris v. Commonwealth, 27 Va. App. 554, 562, 500 S.E.2d 257,

261 (1998) (citing Hatcher v. Commonwealth, 14 Va. App. 487,

491-92, 419 S.E.2d 256, 257 (1992)).    The record in this case

clearly establishes that the officer did not detain Williams at

                                - 4 -
the car.   We, therefore, do not decide this case upon the

principles announced in Harris and Hatcher.

     The Fourth Amendment to the Constitution protects "[t]he

right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures

. . . ."   A seizure without a warrant is per se unreasonable,

unless it falls within recognized exceptions.     Crosby v.

Commonwealth, 6 Va. App. 193, 197, 367 S.E.2d 730, 733 (1988).

In Bethea v. Commonwealth, 245 Va. 416, 429 S.E.2d 211 (1993),

the Supreme Court held that when an officer establishes

"'specific and articulable facts' which show that [the officer]

was reasonably concerned for his safety [during a valid

automobile stop for a traffic violation] and believed that [the

passenger] might have had access to weapons with which to

assault him," the ensuing detention is reasonable and

permissible under the Fourth Amendment.     Id. at 420, 429 S.E.2d

at 211.

     "When examining the officer's reasons for stopping a

person, we examine the objective reasonableness of the officer's

behavior rather than the officer's subjective belief that the

conduct indicates criminal activity."     Riley v. Commonwealth, 13

Va. App. 494, 497, 412 S.E.2d 724, 725 (1992).    The detention at

issue did not occur before Williams fell to the ground and the

officer commanded him to show his hands.     See California v.

Hodari D., 499 U.S. 621, 626 (1991) (holding that even if

                               - 5 -
pursuit by a police officer qualifies as a show of authority, a

seizure does not occur if the suspect is fleeing).      We hold that

Williams was seized when the officer commanded him to show his

hands.   See United States v. Mendenhall, 446 U.S. 544, 554

(1980) (holding that "a person has been 'seized' within the

meaning of the Fourth Amendment only if, in view of all the

circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave").

     We view the evidence in the light most favorable to the

Commonwealth and must uphold the trial judge's findings of

historical fact unless plainly wrong.       Harris, 27 Va. App. at

561, 500 S.E.2d at 260.    We review de novo, however, the trial

judge's application of defined legal standards to particular

facts of a case.   Id.    The evidence proved that when the driver,

whom the officer reasonably believed was operating the car after

his license was suspended, ran from the car, Williams ran behind

the driver in the same direction.    During the pursuit, Williams

ran slower than the driver, and had his empty hands at his side.

Williams turned, looked at the officer, put his hands at his

waist and fell to the ground with his hands concealed beneath

his body at his waist.    The officer testified that he saw the

driver when Williams fell, and he wanted to pursue the driver

but feared for his safety if he did so because he "was not going

to turn [his] back on [Williams]."       The officer and the two men

were then in woods off the roadway.

                                 - 6 -
     The officer testified that he saw Williams' elbows moving

and "asked him could I see his hands."   Williams' refusal to

show his hands placed the officer in the predicament of chasing

the driver while Williams was behind him and actively moving his

hands at his waist.   The officer testified that Williams did not

comply and that he proceeded as follows:

           I continued and repeatedly asked him, "Let
           me see you hands?" to ensure that there were
           no weapons. He would not comply. At that
           point, I bent down and grabbed his right
           arm, around where the elbow is, and
           attempted to pull that out from underneath
           him.

     As in Bethea, the officer did merely what was necessary to

protect his own safety after executing a lawful traffic stop.

He could not reasonably pursue the driver while he also

reasonably believed Williams threatened his safety.   Therefore,

the trial judge did not err in refusing to suppress the gun

Williams pointed at the officer.

                                IV.

     Williams also contends that the evidence was insufficient

to prove he attempted to impede the officer in the performance

of his duties.

     The trial judge convicted Williams on the warrant which

charged that Williams "by threats or force, knowingly

attempt[ed] to intimidate or impede a law enforcement officer,

lawfully engaged in his/her duties" in violation of City Code

§ 23-2.   When an accused challenges the sufficiency of the

                               - 7 -
evidence, we view the evidence in the light most favorable to

the Commonwealth, the prevailing party below, granting it all

reasonable inferences fairly deducible therefrom.     Higginbotham

v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

     The evidence was sufficient for the trial judge to

reasonably find that Williams deliberately stopped running,

refused to obey the officer's order to show his hands,

physically resisted the officer's attempt to view his hands,

and, most importantly, pointed the gun at the officer during

this altercation.   Williams' behavior constitutes more than a

mere refusal to comply with the officer's actions.    We hold that

the evidence was sufficient to prove beyond a reasonable doubt

that Williams acted to deter the arrest of the driver and that

Williams threatened the officer with the gun when the officer

sought to determine whether he could safely pursue the driver.

                                    V.

     Although we affirm these convictions, we remand this case

for a clarification of the sentencing order.    The Commonwealth

notes that the order contains clerical errors.    First, the order

asserts that the judge convicted Williams under Code

§ 18.2-460(B) for the crime of resisting arrest and impeding a

police officer in the performance of his duties instead of City

Code § 23-2 as cited in the warrant.     In addition, the order

does not clearly establish the length of the suspended portion

of the sentence.    The judge's order recites that the judge was

                                - 8 -
suspending the entire sentence for the felony of possessing

cocaine and the entire sentence for both misdemeanors, but the

order also required Williams to serve three months for those

convictions.   We remand for a correction of these discrepancies.

     For these reasons, we affirm the convictions in this case

but remand the case for correction of the sentencing order.

                                       Affirmed and remanded.




                               - 9 -
