                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia


ALONZO T. CLARK
                                          MEMORANDUM OPINION * BY
v.   Record No. 0434-01-3             JUDGE RUDOLPH BUMGARDNER, III
                                             JANUARY 22, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                    Charles J. Strauss, Judge

          J. Patterson Rogers, 3rd, for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     A jury convicted Alonzo T. Clark of assault and battery on

a police officer.   On appeal, he contends the trial court erred

(1) in denying his motion to suppress, (2) in admitting two

exhibits, and (3) in finding the evidence sufficient to support

his conviction.   Finding no error, we affirm.

     "In reviewing a trial court's denial of a motion to

suppress, '[t]he burden is upon [the defendant] to show that

th[e] ruling, when the evidence is considered most favorably to

the Commonwealth, constituted reversible error.'"    McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (citation omitted).   While we are bound to review

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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. 690, 699 (1996).

     Sheriff's Deputy Scott Campbell was investigating an

accident on a private, dead-end road involving a car with North

Carolina license plates.   Property owner Walter Anderson called

the police and advised Campbell that he "suspected drug

activity" on the road.   John Buckner, the tow truck driver,

arrived, and blocked the road while pulling the car out of the

creek.

     The defendant was a passenger in a Jeep that came to a stop

behind the tow truck.    Campbell approached the driver to advise

him the truck would be finished soon and, as part of his

investigation, to inquire about whether he knew anything about

the accident.   He did not suspect criminal behavior, but as

Campbell got closer, he noticed the Jeep had improper temporary

North Carolina tags.

     Campbell asked the driver about the accident.    The driver

said he had heard about it and acted suspiciously.   Campbell

thought the driver was hiding something between his legs and

recovered a crack cocaine pipe.   He removed the driver from the

Jeep and handcuffed him.



                                - 2 -
       The defendant and the female in the back of the Jeep were

jittery, moving around, and talking to each other.     Campbell had

difficulty watching them because of the tinted windows and asked

them to keep their hands visible.    They refused to cooperate.

       Campbell suspected more drugs or weapons were in the Jeep

but was unable to call for backup.      Because the situation was

escalating, Campbell feared for his safety and that of the

bystanders.    He asked the defendant to exit the Jeep.      As soon

as the defendant raised "up from his seat [Campbell] noticed six

to ten [unpackaged,] off-white rocks sitting in the passenger

seat."

       During a quick pat-down of the defendant, Campbell felt a

4-inch long, narrow, cylindrical object in his right front

pocket.   The defendant was uncooperative and prevented Campbell

from ascertaining what the object was.     The defendant elbowed

Campbell in the jaw, pushed off on his chest, swung at him, and

ran.   Campbell told Anderson and Buckner to watch the two at the

Jeep, drew his gun, and chased the defendant yelling, "stop or

I'll shoot."

       Campbell pushed the defendant to the ground and

re-holstered his weapon.   As the two struggled, Campbell told

the defendant he was under arrest.      Each time Campbell

restrained him, the defendant spun out of his control.       The

defendant repeatedly kicked Campbell in the shin and groin.



                                - 3 -
With Buckner's assistance, Campbell restrained the defendant.

Campbell sustained injuries to his left ring finger.

        The defendant contends the trial court erred in denying his

motion to suppress.      He argues Campbell unlawfully stopped the

Jeep, exceeded his authority in asking the passengers to keep

their hands where he could see them, and unjustifiably ordered

the defendant to get out.

        The tow truck blocked the road, which forced the Jeep to

stop.       Deputy Campbell lawfully approached the Jeep after it

stopped.      Campbell was investigating an accident and reasonably

believed the people in the Jeep might have some information

about it.      The Fourth Amendment was not implicated because there

was no seizure.       Carson v. Commonwealth, 12 Va. App. 497, 499,

404 S.E.2d 919, 920, aff'd en banc, 13 Va. App. 280, 410 S.E.2d

412 (1991), aff'd, 244 Va. 293, 421 S.E.2d 415 (1992); Buck v.

Commonwealth, 20 Va. App. 298, 301-02, 456 S.E.2d 534, 535-36

(1995). 1

        Campbell developed probable cause to arrest the driver.

Incident to that arrest, he was authorized to search the car for




        1
       The Jeep's improper tags also provided reasonable
suspicion to detain the driver to determine why the tags were
not in order. See Reel v. Commonwealth, 31 Va. App. 262,
265-66, 522 S.E.2d 881, 882-83 (2000) (pink rejection sticker
provided reasonable suspicion of criminal activity for
investigatory stop).


                                   - 4 -
drugs and weapons. 2   New York v. Belton, 453 U.S. 454, 460

(1981); Lansdown v. Commonwealth, 226 Va. 204, 214, 308 S.E.2d

106, 112 (1983) (search can precede or follow arrest).    Under

the circumstances, Campbell could order the defendant passenger

out of the Jeep for safety without suspecting him of criminal

behavior.    Maryland v. Wilson, 519 U.S. 408, 413-14 (1997).

Campbell was also justified in maintaining the status quo by

telling the defendant to keep his hands visible.    Welshman v.

Commonwealth, 28 Va. App. 20, 34, 502 S.E.2d 122, 128-29 (1998)

(en banc).

     The minute the defendant raised up, Campbell observed crack

cocaine on his seat.    That observation provided probable cause

to arrest him.   Accordingly, the trial court did not err in

denying the defendant's motion to suppress.

     Next, we consider whether the trial court erred in

admitting two exhibits.    The defendant contends the Commonwealth

failed to lay a proper foundation for Exhibit 4, a photograph of

the crack cocaine on the defendant's seat.    The exhibit was not

admitted into evidence and is not contained in the record.      The

defendant's argument is moot.



     2
       Campbell's concern for weapons was reasonable. Michigan v.
Summers, 452 U.S. 692, 702-03 (1981); Logan v. Commonwealth, 19
Va. App. 437, 445, 452 S.E.2d 364, 369 (1994) (en banc)
(relationship between drugs and weapons is "well recognized").




                                - 5 -
     The defendant also contends the trial court erred in

admitting Commonwealth’s Exhibit 7, a broken glass tube.    The

defendant argued to the trial court that no evidence linked him

to the tube.   Campbell found the glass tube where he had

struggled with the defendant and said, "It was consistent with

the cylinder like object [I felt] in Mr. Clark's pants area."

Defense counsel did not object.

     The admissibility of evidence is within the sound

discretion of the trial court.     Coe v. Commonwealth, 231 Va. 83,

87, 340 S.E.2d 820, 823 (1986).    The weight and value of the

evidence is a matter for the jury to consider in connection with

the other evidence in the case.     Cheng v. Commonwealth, 240 Va.

26, 39, 393 S.E.2d 599, 606 (1990); see Charles E. Friend, The

Law of Evidence in Virginia § 12-6, 480 (4th ed. 1993) (there

must be "some rational connection between the circumstantial

evidence introduced and the motive it is offered to establish").

     The Commonwealth introduced the glass tube to explain why

the defendant resisted arrest and tried to flee.    The trial

court, noting that it was "circumstantial that it was in

[defendant's] possession," admitted the item over the

defendant's objection.   The record does not reflect the

defendant's argument that no evidence connected the tube to him.

Moreover, the jury decides the weight of the evidence and

whether it connected the defendant to the glass tube.



                                 - 6 -
     In his brief, the defendant contends the broken glass tube

is highly prejudicial. 3   Drugs were already a part of this case

and directly connected to the defendant.    This exhibit could not

have improperly injected drugs into the case.    The trial court

did not err in admitting Exhibit 7.

     Finally, the defendant challenges the sufficiency of the

evidence supporting his conviction of assault and battery on a

police officer. 4   The defendant contends he was justified in

resisting Campbell because his detention was unlawful.

     Campbell lawfully asked the defendant to exit the vehicle.

When he observed crack cocaine under the defendant on the seat,

Campbell had probable cause to arrest him.    The defendant

elbowed Campbell, pushed him, and repeatedly kicked him.

Because Campbell had probable cause to arrest the defendant, he

could not justifiably resist.    Smith v. Commonwealth, 30 Va.

App. 737, 743, 519 S.E.2d 831, 833 (1999); Polk v. Commonwealth,

4 Va. App. 590, 596, 358 S.E.2d 770, 773 (1987).

     For these reasons, we affirm the defendant's conviction.

                                                           Affirmed.


     3
       To the extent the defendant argues the Commonwealth
improperly argued about the glass tube during its closing, he
failed to raise it before the trial court. Accordingly, his
contention is procedurally barred. Rule 5A:18.
     4
       "[A]ny person [who] commits . . . an assault and battery
against another knowing . . . that such other person is a
law-enforcement officer . . . [is] guilty of a Class 6 felony
. . . ." Code § 18.2-57(C).


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