                       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.

                                  - 8 -
     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

                                - 9 -
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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