                  COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


BRUCE WILLIAMS
                                         MEMORANDUM OPINION * BY
v.        Record No. 0318-96-2            JUDGE MARVIN F. COLE
                                            AUGUST 19, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Thomas N. Nance, Judge

          Patricia P. Nagel, Assistant Public Defender
          (David J. Johnson, Public Defender, on
          brief), for appellant.
          Daniel J. Munroe, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Bruce Williams (appellant) entered a conditional guilty plea

to charges of possession of burglary tools, grand larceny, and

statutory burglary.   On appeal, he contends that the trial judge

erred in denying his motion to suppress the evidence.     We

disagree, and affirm appellant's convictions.

     When a trial judge's denial of a motion to suppress is

reviewed on appeal, appellant has the burden to demonstrate that,

viewing the evidence in the light most favorable to the

Commonwealth, the judge's decision was reversible error.       Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).

"On appeal, the judgment of the trial court is presumed correct.

  The burden is on the party who alleges reversible error to show
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
by the record that reversal is the remedy to which he is

entitled."   Johnson v. Commonwealth, 12 Va. App. 391, 396, 404

S.E.2d 384, 387 (1991) (citation omitted).   The decision of the

trial judge will be disturbed only if plainly wrong.     See

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991).   Our consideration of the record includes evidence

adduced at both the trial and the suppression hearing.     See

DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540,

542-43 (1987).   See also Bynum v. Commonwealth, 23 Va. App. 412,

415, 477 S.E.2d 750, 752 (1996).

     While we are bound to review de novo the ultimate questions

of reasonable suspicion and probable cause, we "review findings

of historical fact only for clear error and . . . give due weight

to inferences drawn from those facts by resident judges and local

law enforcement officers."   Ornelas v. United States, 517 U.S.

___, ___, 116 S. Ct. 1657, 1663 (1996).

     So viewed, the evidence proved that at 2:20 a.m. on October

13, 1995, Officer Berkley H. Eikerenkoetter and his partner,

Officer David Ernest, were traveling northbound on Allen Avenue

in Richmond when they observed defendant, later identified as

Bruce Williams, walking southbound on Allen Avenue between

Parkwood and Grayland Avenues in the direction of the officers

and Grayland Avenue.   Williams was crossing over a highway

overpass between Parkwood and Grayland Avenues.   He was pulling a

super can.   This activity attracted the attention of Officer



                                -2-
Eikerenkoetter, who was driving the police car, and he pulled the

car to the center of Allen Avenue and stopped.   Officer

Eikerenkoetter testified Williams' action was suspicious because

he had arrested and convicted, in the past, persons using super

cans to conceal stolen property.   He stopped to talk with the

person pulling the can.

     Williams admitted that he had crossed the overpass and was

at the intersection of Grayland and Allen Avenues.   Officer

Eikerenkoetter at the suppression hearing drew a diagram showing

where he stopped the police car and where the defendant was

walking.    The diagram established that the police car was parked

adjacent to the centerline of Allen Avenue and on a diagonal, but

all within the northbound traffic lane of Allen Avenue.    The car

was close to the south curbline of Grayland Avenue, but had not

entered it.   The defendant was walking in the southbound lane of

Allen Avenue near the western curbline of Allen Avenue.    Because

the time of night was 2:20 a.m., the officer testified that he

stopped diagonally in Allen Avenue in order to see Williams in

the police car headlights.   Nothing in the record suggests that

the light blinded Williams, or affected him in any way, as he

contends.
     Super cans are issued by the City of Richmond to all

residents, who use them as containers to hold trash and refuse.

The residents place the cans beside the street in front of their

homes, and the trash is collected periodically by the city trash




                                 -3-
collectors.

     Officer Eikerenkoetter testified that the area was known for

violence, homicides and criminal activity.    He stated that the

nature of the area was a big factor in the establishment of a

police precinct there.    Eikerenkoetter was experienced with the

use of super cans.     He testified that prior to this incident, he

had observed a man pulling a super can in the same area.    He

investigated and the man fled the scene, leaving the super can

behind.   It contained a stolen air conditioner.    He further

testified that he had arrested people for concealing property in

super cans and had obtained convictions.    He testified that he

stopped and approached Williams because he suspected that he was

concealing stolen property in the can.
     Eikerenkoetter testified that he exited the driver's door

and approached Williams.     His partner got out of the passenger's

door and approached Williams from behind.    Nothing in the record

suggests that Williams was blocked or prevented from leaving the

scene in any direction if he desired to do so, as he now argues.

The following conversation ensued:
         Eikerenkoetter: How are you doing?        Man,
         what are you doing?

           Williams:    Nothing.

           Eikerenkoetter:    What [have] you got in the
           can?

           Williams:    Nothing.

           Eikerenkoetter: Do you have any weapons or
           drugs on you that I need to know about?




                                   -4-
           Williams:   No.

           Eikerenkoetter:    Do you mind if I check?


     Williams did not make any response to this question.

Eikerenkoetter testified that when he was not permitted to check

for weapons or drugs, he patted down Williams' outer clothing

"for [the] safety of myself and Officer Ernest."

     During the pat-down, Eikerenkoetter felt a long, hard object

in Williams' jacket pocket.    He asked what the object was, but

Williams did not answer.     The officer reached into the pocket and

removed the item, which was a fourteen inch long screwdriver.        He

felt other hard objects in the pocket, removed them, and found

them to be a pair of pliers, a pair of scissors, and wire

cutters.
     Based upon the "time of the morning and the circumstances,"

Eikerenkoetter concluded that the items in Williams' possession

were burglary tools.   He again asked what was in the super can,

and again Williams did not answer.      Officer Ernest then opened

the can and found property later determined to have been stolen

from a nearby business.

     Eikerenkoetter observed two sets of numbers on the can.         One

was the City assigned number, and the other was the spray painted

number 1616.   Upon seeing the number, Eikerenkoetter had other

police units check around the 1600 block of Cary Street because

both businesses and residences were located there and was only a

block away from the overpass in the direction from which Williams




                                  -5-
was coming.    At the trial of the case, the Commonwealth's

attorney proffered the evidence.   A business in the 1600 block of

Cary Street was broken into with what appeared to be a

screwdriver.   Stolen from the business was a computer, office

equipment and several car stereos.     These articles were found in

the super can.

     In this case, we hold that Officer Eikerenkoetter had

reasonable articulable suspicion that Williams may have been

engaged in criminal activity and was armed and dangerous.

Consequently, a stop pursuant to Terry v. Ohio, 392 U.S. 1

(1963), and a pat-down were justified.    Upon finding the burglary

tools during the pat-down, Eikerenkoetter had probable cause to

arrest Williams.   Incident to the arrest, he was justified in

searching Williams and the super can.

     In assessing the propriety of the trial court's ruling, we

keep in mind that the Fourth Amendment does not proscribe all

searches and seizures, only those that are "unreasonable."     See
id. at 9.
            Courts must apply objective standards in
            determining whether the requisite degree of
            suspicion exists, taking into account that
            "trained law enforcement officers may be
            'able to perceive and articulate meaning in
            given conduct which would be wholly innocent
            to the untrained observer.'" Attention must
            be focused on objective reasonableness rather
            than on the police officer's subjective
            intent.


Castaneda v. Commonwealth, 7 Va. App. 574, 580, 376 S.E.2d 82, 85

(1989) (reh'q en banc) (citation omitted).



                                 -6-
            The Fourth Amendment does not require a
            policeman who lacks the precise level of
            information necessary for probable cause to
            arrest to simply shrug his shoulders and
            allow a crime to occur or a criminal to
            escape. On the contrary, Terry recognizes
            that it may be the essence of good police
            work to adopt an intermediate response. A
            brief stop of a suspicious individual, in
            order to determine his identity or to
            maintain the status quo momentarily while
            obtaining more information, may be most
            reasonable in light of the facts known to the
            officer at the time.


Adams v. Williams, 407 U.S. 143, 145-46 (1972).      See also Harmon
v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77, 79 (1992).

     It is an established principle that a brief detention for

investigative purposes is justified when an officer has

reasonable suspicion supported by articulable facts that

"criminal activity may be afoot."      United States v. Sokolow, 490

U.S. 1, 7 (1989).   "[I]nnocent behavior will frequently provide

the basis for a showing of [reasonable suspicion], . . . and . .

. '[i]n making a determination of [reasonable suspicion] . . .

the relevant inquiry is not whether particular conduct is

"innocent" or "guilty," but the degree of suspicion that attaches

to particular types of noncriminal acts.'"      Id. at 10 (citation

omitted).   "Actual proof that criminal activity is afoot is not

necessary; the record need only show that it may be afoot."

Harmon, 15 Va. App. at 444, 425 S.E.2d at 79.
          "There is no 'litmus test' for reasonable
          suspicion. Each instance of police conduct
          must be judged for reasonableness in light of
          the particular circumstances." "In order to
          determine what cause is sufficient to
          authorize police to stop a person, cognizance



                                 -7-
             must be taken of the 'totality of the
             circumstances -- the whole picture.'"


Id. at 445, 425 S.E.2d at 79 (citations omitted).

        Officer Eikerenkoetter testified that he was in an area

known for violence, homicides and criminal activity.      He stated

that the nature of the area was a big factor in the establishment

of a police precinct in the area.       Eikerenkoetter had had some

experience with super cans.    He testified that prior to this

incident, he had observed a man pulling a super can in the same

area.    He investigated the situation and the man fled.    He left

the super can behind and it contained a stolen air conditioner.

He further testified that he had arrested people for concealing

property in super cans and had obtained convictions.

Eikerenkoetter testified that he approached Williams because he

suspected that he was concealing stolen property in the super

can.
        The trial judge, recognizing that it was his responsibility

to determine the objectiveness of the officer's actions, stated,

"I think the police officer, in this situation -- if he didn't

suspect something was going on . . . he wouldn't be doing his

job.    He would just be riding around out there."    We find

credible evidence in the record to support the decision of the

trial judge that Officer Eikerenkoetter had reasonable suspicion

supported by articulable facts that "criminal activity may be

afoot" and was justified in detaining Williams for a reasonable

period to investigate to dispel or confirm his suspicions.


                                  -8-
     In conjunction with a lawful investigative detention,
          an officer may conduct a patdown search of a
          suspect's outer clothing if he can "'point to
          specific and articulable facts which, taken
          together with rational inferences from those
          facts,'" reasonably lead him to conclude, "in
          light of his experience, that 'criminal
          activity may be afoot' and that the suspect
          'may be armed and presently dangerous.'"


Stanley v. Commonwealth, 16 Va. App. 873, 875, 433 S.E.2d 512,

513 (1993) (citations omitted).    Among the circumstances to be

considered in this situation are "the 'characteristics of the

area' where the stop occurs, the time of the stop, whether late

at night or not, . . . any suspicious conduct of the person

accosted such as an obvious attempt to avoid officers or any

nervous conduct on the discovery of their presence,'" and "the

character of the offense which the individual is suspected of

committing."   Williams v. Commonwealth, 4 Va. App. 53, 67, 354
S.E.2d 79, 87 (1987) (citation omitted).

     "'[T]he 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.'"    Taylor v. Commonwealth, 10 Va.
App. 260, 264, 391 S.E.2d 592, 594 (1990) (citation omitted).

"'The purpose of [a] limited search [for weapons] is not to

discover evidence of crime, but to allow the officer to pursue

his investigation without fear of violence.'"   Bolda v.

Commonwealth, 15 Va. App. 315, 319, 423 S.E.2d 204, 207 (1992)

(citation omitted).   Furthermore, the officer is entitled to view

the circumstances confronting him in the light of his training


                                  -9-
and experience.   See Terry, 392 U.S. at 27.

     In this case, the same facts that support reasonable

suspicion that "criminal activity may be afoot" also support the

officers' conclusion that "the suspect may be armed and presently

dangerous."   These facts and circumstances will not be repeated

in detail but are applicable to show knowledge and information

possessed by the officers.   These facts alone are sufficient for

the fact finder to conclude that Eikerenkoetter was justified in

patting down Williams' outer clothing for weapons.
     At this time, Eikerenkoetter possessed the following facts:

(1) he was in an area known for violence, homicides and criminal

activity; (2) the time was 2:20 a.m., and the only light was from

the headlights of the police car; (3) he had arrested people for

concealing property in super cans, had obtained convictions, and

he now suspected that Williams was concealing property in a super

can, a serious criminal act; (4) Williams was pulling a super can

over a highway overpass, a place where a super can would not

normally be found, particularly at 2:20 a.m.; (5) Williams'

statement to the officer that nothing was in the can made his

activity even more suspicious under the circumstances; (6) super

cans are usually found at residences and not on highway

overpasses; and (7) the only reasonable use for a super can at

the time and place involved here is to conceal stolen property.

When Williams refused to cooperate with Eikerenkoetter and answer

questions about weapons or drugs, Williams became fearful for his



                               -10-
safety and that of his partner and he patted down Williams' outer

clothing.   We find that, under the totality of all of these

circumstances, Eikerenkoetter was justified in patting down

Williams for weapons for his safety and that of his partner.    See

Nelson v. Commonwealth, 24 Va. App. 823, 485 S.E.2d 673 (1997)

(suspicion that defendant had been involved in a burglary, a

potentially violent felony, justified a pat-down for weapons to

ensure officer safety during the stop).
     During the pat-down, Eikerenkoetter felt a long, hard object

in Williams' jacket pocket.   He asked what the object was, but

Williams made no response.    Believing the object to be a weapon,

the officer reached into the pocket and removed the item, which

was a fourteen inch long screwdriver.   He felt other hard objects

in the pocket, removed them from the pocket, and found them to be

a pair of pliers, a pair of scissors, and wire cutters.

     Based upon the "time of the morning and the circumstances"

Eikerenkoetter concluded that the items in Williams' possession

were burglary tools.   He again asked what was in the super can,

and Williams did not reply.   Ernest then opened the can and found

the property stolen from a nearby store.

     In the light of Eikerenkoetter's prior experience with super

cans used to conceal evidence of theft, the time of night the

officer observed appellant pulling the can, and the nature of the

area where appellant was found, the officer had probable cause to

arrest appellant for the possession of burglary tools.    See Ford



                                -11-
v. City of Newport News, 23 Va. App. 137, 143-44, 474 S.E.2d 848,

851 (1996) (to establish probable cause to arrest there must be

"a probability or substantial chance of criminal activity, not an

actual showing of such activity").

     The police were entitled to search appellant and the super

can incident to appellant's arrest for the possession of burglary

tools.   See New York v. Belton, 453 U.S. 454, 460 (1981); Hall v.

Commonwealth, 12 Va. App. 559, 564, 389 S.E.2d 921, 924 (1990).

"So long as probable cause to arrest exists at the time of the

search, . . . it is unimportant that the search preceded the

formal arrest if the arrest '"followed quickly on the heels of

the challenged search."'"   Carter v. Commonwealth, 9 Va. App.
310, 312, 387 S.E.2d 505, 506-07 (1990) (quoting Wright v.

Commonwealth, 222 Va. 188, 193, 278 S.E.2d 849, 852-53 (1981)).

Thus, it was immaterial that appellant was not actually placed

under arrest until after the search of the super can.

     For the reasons stated, the trial judge did not err in

denying the motion to suppress.

                                         Affirmed.




                               -12-
Benton, J., dissenting.

     I would hold that the police officers unlawfully seized and

searched Bruce Williams.    Therefore, I dissent.

     "[W]henever a police officer accosts an individual and

restrains [that individual's] freedom to walk away, [the officer]

has 'seized' that person."    Terry v. Ohio, 392 U.S. 1, 16 (1968).

 By the show of authority, the police may convey such a

threatening presence that "a reasonable person would have

believed that he was not free to leave."     United States v.
Mendenhall, 446 U.S. 544, 554 (1980).      On appeal, we review the

determination of reasonable suspicion de novo.      See Ornelas v.

United States, 517 U.S. ___, ___, 116 S. Ct. 1657, 1663 (1996).

     The evidence proved that when the officers saw Williams with

the trash can, they stopped the car in the middle of the street

and parked diagonally with the headlights of their patrol car

shining upon Williams. 1   The officers got out of the vehicle and

accosted Williams, with one officer standing behind him and the

other officer in front of him.    The officers did not request

permission to speak with Williams.      Instead, they began

questioning him.   They asked him what he was doing, what was in
     1
      The evidence proved that the officers saw Williams walking
"southbound on Allen Avenue between Parkwood and Grayland," in
the City of Richmond. The evidence further proved that "there
are residences there." Although some businesses were on nearby
Cary Street, the evidence proved Williams was stopped at the
intersection of Allen Avenue and Grayland Street in a residential
area. He had just crossed an overpass from Parkwood Avenue that
led to a residential neighborhood. No evidence proved that
Parkwood Avenue is not residential.




                                 -13-
the can, and whether he had weapons or drugs.    Under these

circumstances, a reasonable person in Williams' position would

not have believed that he was free to leave.    See Mendenhall, 446

U.S. at 554.

      Furthermore, the officers lacked a reasonable articulable

suspicion that Williams was engaged in criminal activity.

Although the principle is well established that "a police officer

may in appropriate circumstances and in an appropriate manner

approach a person for purposes of investigating possibly criminal

behavior," Terry, 392 U.S. at 22, the principle is equally well
established that "the police officer must be able to point to

specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant that

intrusion."    Id. at 21.   The officer's testimony of the facts and

observations that gave rise to the stop must amount to more than

an "inchoate and unparticularized suspicion or 'hunch.'"     Id. at

27.   "When examining the officer's articulable 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, 496-97, 412 S.E.2d 724, 725

(1992).

      The officers stopped Williams "because of . . . suspicions."

 The officers had no information that Williams was wanted on a

criminal charge and they had no information that a criminal




                                 -14-
offense had occurred that might have involved Williams.       The

officers' observation that Williams was moving a trash can simply

was not a basis to reasonably believe that he was engaged in

criminal conduct. 2   The guarantee of the Fourth Amendment

protects persons who carry their belongings in bags, boxes, and

cans just as it protects executives who carry locked attache'

cases.    See Smith v. Ohio, 494 U.S. 541, 542 (1990).

     Nothing about Williams' actions was criminal or illegal.

His conduct, "viewed either in isolation as the officer

considered it or along with the other behavior as the court must

examine it, is utterly insufficient to generate a reasonable

suspicion that defendant was involved in criminal activity."

Zimmerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 710
(1988).   Unusual conduct that the officer deems suspicious does

not ipso facto justify a stop.    See id.   Even when "[t]he record

suggests an understandable desire to assert a police presence

. . . , that purpose does not negate Fourth Amendment

guarantees."   Brown v. Texas, 443 U.S. 47, 52 (1979).
     Furthermore, the officer gave no particularized reason to

support frisking Williams.    The officers did not ask for

Williams' name or address.    They did not ask Williams if he would

consent to being questioned.    One of the officers immediately

began to question Williams by asking, "what are you doing?"
     2
      I cannot agree with the majority's conclusion that "the
only reasonable use for a super can at the time and place
involved here is to conceal stolen property."



                                 -15-
Williams responded to all of the officers' preliminary questions.

Williams did not, however, give his consent to be searched.

Nonetheless, the officer searched Williams' pockets and the trash

can.

       The officer testified that he always frisks people that he

stops "in that particular area" of the city.    That generalized

statement of the officer's usual conduct does not support a

finding that the officers had specific and particular facts upon

which to believe Williams was armed and dangerous.    "The 'narrow

scope' of the Terry exception does not permit a frisk for weapons

on less than reasonable belief or suspicion directed at the

person to be frisked . . . ."    Ybarra v. Illinois, 444 U.S. 85,

94 (1979).
             In every encounter, "Terry requires
             reasonable, individualized suspicion before a
             frisk for weapons can be conducted." The
             officer's generalized policy of frisking all
             persons does not satisfy the restrictions
             imposed by Terry. "Indeed, if everyone is
             assumed to be armed and dangerous until the
             officer is satisfied that he or she is not,
             then officers would be able to frisk at will
             -- a result not contemplated by the Fourth
             Amendment."


Sattler v. Commonwealth, 20 Va. App. 366, 369, 457 S.E.2d 398,
400 (1995) (citations omitted).

       Because the record proved insufficient justification for the

stop, frisk, and search, I would reverse the trial judge's

refusal to suppress the evidence.

       I dissent.




                                 -16-
-17-
