Keith Lamont Sanders v. Commonwealth of Virginia ( 2001 )


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  •                        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
    - 7 -
    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.
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    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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Document Info

Docket Number: 2149001

Filed Date: 6/19/2001

Precedential Status: Non-Precedential

Modified Date: 4/18/2021