                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Alexandria, Virginia


SEAN WILLIAM MORRIS
                                         MEMORANDUM OPINION * BY
v.   Record No. 2220-97-4              JUDGE ROSEMARIE ANNUNZIATA
                                            NOVEMBER 17, 1998
COMMONWEALTH OF VIRGINIA



              FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                       Thomas D. Horne, Judge
          Bonnie H. Hoffman, Assistant Public Defender
          (Office of the Public Defender, on briefs),
          for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.



     Sean William Morris ("appellant") appeals his conviction by

bench trial of possessing burglarious tools with the intent to

commit larceny in violation of Code § 18.2-94.     On appeal,

appellant contends that the police illegally detained and

searched him without satisfying the constitutional prerequisites

for doing so.   Appellant also argues the police illegally

obtained his statements without informing him of his

constitutional rights.   We disagree and affirm appellant's

conviction.

     Under familiar principles, we view the evidence in the light

most favorable to the Commonwealth, the party prevailing below,

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and grant all reasonable inferences fairly deducible therefrom.

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

48 (1991).   The trial court's findings will not be disturbed

unless plainly wrong, id., and the appellant carries the burden

to show reversible error.    Reynolds v. Commonwealth, 9 Va. App.

430, 436, 388 S.E.2d 659, 663 (1990).    Bearing this in mind, we

set forth the relevant facts below.

     At approximately 1:07 a.m. on October 24, 1996, Loudoun

County Sheriff's Department Deputies, Jeffrey Lockhart, Allen

Gabrielli, and Christopher Bailey, responded to a dispatch that

two individuals, on foot, were suspected of auto tampering in a

residential townhome area.   Each deputy wore his uniform and

badge of authority.   A few minutes after receiving the dispatch,

Lockhart arrived on the scene and spoke with Chris Nowak, the

person who had reported the incident.    Nowak reported that, as he

was leaving his house, he saw someone crouched behind a vehicle

in the parking lot.   After yelling out that he would call the

police, Nowak saw a second person near another vehicle and heard

one of the individuals yell, "Run."     Both individuals ran toward

a wooded area of the development and disappeared.
     As Lockhart finished speaking with Nowak, Bailey arrived

with his K-9, Caesar.   Lockhart showed Bailey the area through

which the suspects had fled.   Using Caesar to track, Bailey found

appellant hiding against the side of a house behind evergreen

bushes.   Bailey found appellant approximately 200 to 300 yards



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from the spot where the suspects were last seen and within 5 to 6

minutes of giving chase from that point.     Bailey ordered

appellant to lie on the ground, placed him in handcuffs, and

guarded him while waiting for back-up to arrive.     Aware the

second suspect might be nearby, Bailey swept the surrounding area

with his flashlight and asked appellant where his friend had

gone.    Appellant responded by indicating the direction the other

suspect went.
        When Deputy Gabrielli arrived in his cruiser approximately

one minute after Bailey's call for back-up, he helped appellant

to his feet and brought him to the vehicle.     On the way,

Gabrielli asked, "What are you doing over here hiding in the

bushes?"    Appellant responded he had been walking back from a

party.    He also said that he was on the way to the store to get

something to eat.    Gabrielli informed appellant he was going to

be detained, but that he was not under arrest at that time.

        Before Gabrielli placed appellant inside his vehicle, the

deputy asked whether he had any weapons on his person.     Appellant

stated he had a knife at his waist.      Gabrielli found and removed

the knife.    Gabrielli then patted down the outside of appellant's

clothing and found a flashlight, a pair of gloves, and a punch, a

device with a three to four inch cylindrical handle containing a

spring-loaded metal rod with a point on the end.

        Gabrielli placed appellant inside his cruiser and continued

to search the area with Bailey.    The cruiser's doors were locked




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from the outside and the windows closed.      Appellant remained

inside the cruiser, handcuffed, for approximately thirty minutes,

after which time the police released him.

              I.   LAWFULNESS OF APPELLANT'S DETENTION

     Appellant first contends that the police arrested him in

violation of his Fourth and Fourteenth Amendment rights.

Appellant argues that police actions during their investigative

stop were so intrusive under the circumstances that they enlarged

the scope of investigative activity into an arrest without

probable cause.    We disagree.
     While it is true that police procedures during a Terry stop

can be so intrusive as to trigger the full protection of the

Fourth and Fourteenth Amendments, Hayes v. Florida, 470 U.S. 811,

815-16 (1985), there is no "litmus-paper test for distinguishing

. . . when a seizure exceeds the bounds of an investigative

stop."   Florida v. Royer, 460 U.S. 491, 506 (1983).     Instead,

when evaluating whether an investigative stop is unreasonable,

common sense and ordinary human experience should take precedence

over rigid criteria.    United States v. Sharpe, 470 U.S. 675, 685

(1985); DePriest v. Commonwealth, 4 Va. App. 577, 586, 359 S.E.2d

540, 544 (1987), cert. denied, 488 U.S. 985 (1988).      Although the

"investigative methods employed should be the least intrusive

means reasonably available to verify or dispel the officer's

suspicion in a short period of time," the scope of the intrusion

permitted will vary with each case.       Royer, 460 U.S. at 500.   As




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such, even complete deprivations of a suspect's liberty "do not

convert a stop and frisk into an arrest so long as the methods of

restraint used are reasonable to the circumstances."   Thomas v.

Commonwealth, 16 Va. App. 851, 857, 434 S.E.2d 319, 323 (1993)

(citing United States v. Crittendon, 883 F.2d 326, 329 (4th Cir.

1989)) (finding that a seizure was not the functional equivalent

of an arrest despite the use of handcuffs and placement of

defendant in a police cruiser when lone officer suspected

defendant of recent, violent criminal activity and encountered

him late at night), aff'd on reh'g en banc, 18 Va. App. 454, 444
S.E.2d 275 (1994).

     Here, as police obtained the challenged evidence prior to

placing appellant in the cruiser, we limit our assessment of

their actions to that period of time and find that the detention

did not constitute an arrest.   Responding to a call of possible

auto tampering by two individuals shortly after 1:00 a.m., Deputy

Bailey found appellant concealing himself behind shrubbery

minutes after Caesar picked up his scent.   Aware that there were

two possible suspects involved, Bailey handcuffed and guarded

appellant until other deputies arrived.   Given the facts that

appellant had apparently attempted to avoid police detection by

concealing himself and was suspected of participating in recent

criminal activity, Deputy Gabrielli asked appellant if he

possessed any weapons and patted down his clothing after he

responded in the affirmative.   Under such circumstances, this



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conduct was not so unreasonable or intrusive as to constitute an

arrest.




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                 II.   REASONABLENESS OF THE PAT-DOWN

     We next address whether Deputy Gabrielli had reasonable

suspicion to pat-down appellant's clothing during the

investigative stop.    We hold that he did.

     An officer may conduct a pat-down search of a suspect's

outer clothing if the officer reasonably believes, based on

specific and articulable facts, that the suspect might be armed

and dangerous.    Hilliard v. Commonwealth, 17 Va. App. 23, 25, 434

S.E.2d 911, 913 (1993).    In determining whether to conduct a

pat-down, the officer is "entitled to rely upon 'the totality of

the circumstances--the whole picture.'"       Peguese v. Commonwealth,

19 Va. App. 349, 351, 451 S.E.2d 412, 413 (1994) (citations

omitted).   The officer does not have to be absolutely certain

that a suspect is armed so long as "a reasonably prudent man in

the [same] circumstances would be warranted in the belief that

his safety or that of others [is] in danger."       Terry v. Ohio, 392

U.S. 1, 27 (1968); Lansdown v. Commonwealth, 226 Va. 204, 211,

308 S.E.2d 106, 111 (1983), cert. denied, 465 U.S. 1104 (1984).
          "Among the circumstances to be considered in
          connection with this issue are the
          'characteristics of the area' where the stop
          occurs, the time of the stop, whether late at
          night or not, as well as 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." To this, we add the character of
          the offense which the individual is suspected
          of committing as a circumstance which the
          officer may consider.


Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 85



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(citations omitted).

     Here, the investigative stop occurred late at night

following a report of two suspects lurking in a parking lot where

earlier incidents of auto tampering had occurred.      Based on his

suspicion that appellant was involved in auto tampering,

Gabrielli had reason to believe that he might be in possession of

instruments that could be used as weapons.    See Nelson v.

Commonwealth, 24 Va. App. 823, 827, 485 S.E.2d 673, 674-75 (1997)

(holding that it is not unreasonable for an officer to conduct a

pat-down search when burglary is the crime for which the suspect

is lawfully detained).   Furthermore, by concealing himself behind

bushes, appellant's conduct indicated an obvious attempt to avoid

police.   Finally, prior to the initiation of the pat-down,

appellant told Gabrielli that he carried a knife.      Thus Deputy

Gabrielli had reasonable suspicion, based on specific and

articulable facts, to search appellant.
                III.   NECESSITY OF MIRANDA WARNINGS

     Appellant finally contends that his statements to police

should have been suppressed by the trial court because the

officers improperly interrogated him without administering proper

warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
Unless Miranda warnings have been given, any statements a suspect

makes during custodial interrogation are inadmissible in the

prosecution's case-in-chief.    Berkemer v. McCarty, 468 U.S. 420,

434 (1984).   After applying the appropriate Fifth Amendment



                                - 8 -
analysis to determine whether appellant's encounter with police

rose to the level of "custodial interrogation," we find no error

in the failure to give Miranda warnings in this case.

     When determining whether a suspect is "in custody" for

Miranda purposes, "the ultimate inquiry is simply whether there

is a 'formal arrest or restraint on freedom of movement' of the

degree associated with a formal arrest."     California v. Beheler,

463 U.S. 1121, 1125 (1983) (per curiam) (citation omitted).    This

determination depends "on the objective circumstances of the

interrogation, not on the subjective views harbored by either the

interrogating officers or the person being questioned."
Stansbury v. California, 511 U.S. 318, 323 (1994).     Among the

circumstances we consider are whether a suspect is questioned in

familiar or neutral surroundings, the number of officers present,

the amount of force used by officers to detain the individual,

the degree of physical restraint, and the duration and character

of the interrogation.   Wass v. Commonwealth, 5 Va. App. 27,

32-33, 359 S.E.2d 836, 839 (1987).     When officers have a

reasonable and articulable suspicion that a suspect is engaged in

illegal activity they may ask a limited number of questions to

confirm or dispel their suspicion.     Cherry v. Commonwealth, 14

Va. App. 135, 141, 415 S.E.2d 242, 245 (1992).    Moreover, the

length of time between a suspect's detention and the commencement

of questioning is a relevant circumstance.     See id. (considering

the fact that a suspect had only been detained a short period of



                               - 9 -
time before officers asked if they could search his car as an

indication that the suspect was not subjected to custodial

interrogation).

     There is no bright-line test, however, to distinguish a mere

investigative stop from the commencement of custodial

interrogation.    During investigative stops, brief but complete

deprivations of the suspect's liberty are valid, and the police

are permitted to use methods of restraint that are reasonable

under the circumstances.    Thomas, 16 Va. App. at 857, 434 S.E.2d

at 323.   As such, "'drawing weapons, handcuffing a suspect,

placing a suspect in a patrol car for questioning, or using or

threatening to use force does not necessarily elevate a lawful

stop into a custodial arrest for Miranda purposes.'"      Harris v.

Commonwealth, 27 Va. App. 554, 566, 500 S.E.2d 257, 263 (1998)

(quoting United States v. Leshuk, 65 F.3d 1105, 1109-10 (4th Cir.

1995)).   Rather, what distinguishes Terry stops from custodial

interrogation is that such stops "'must last no longer than

necessary to verify or dispel the officer's suspicion.'"      Id.

(quoting Leshuk, 65 F.3d at 1109).      See Commonwealth v. Milner,

13 Va. App. 556, 558-59, 413 S.E.2d 352, 353-54 (1992) (holding

that a detention on a public street for the purpose of holding a

suspect for identification did not require warnings, even though

the suspect was not free to leave and was searched for weapons).

     In this case, the deputies' detention and questioning of

appellant did not rise to the level of custodial interrogation




                               - 10 -
and, thus, did not require them to give Miranda warnings.    At no

time did the deputies inform appellant that he was under arrest.

On the contrary, their actions following appellant's

apprehension were directed toward confirming or dispelling their

suspicions regarding his involvement in illegal activity and

assuring their own personal safety.   The deputies' questioning

was brief and followed immediately after the detention.    Thus, we

affirm the trial court's refusal to suppress appellant's

statements.
     For the foregoing reasons, we affirm appellant's conviction.

                                                          Affirmed.




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