Glover v. Com., 0373-85

• Decision Date: 16 September 1986
• Docket Number: No. 0373-85,0373-85
• Citation: 348 S.E.2d 434,3 Va.App. 152
• Parties: Lonnell G. GLOVER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 434

348 S.E.2d 434

3 Va.App. 152

Lonnell G. GLOVER v. COMMONWEALTH of Virginia.

Record No. 0373-85.

Court of Appeals of Virginia.

Sept. 16, 1986.

Susan L. Korfanty (John W. Shanley, Arlington, on brief), for appellant.

Eugene Murphy, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: DUFF, MOON and COLE, JJ.

COLE, Judge.

Upon his trial by the court without a jury, the appellant, Lonnell G. Glover, was found guilty of possessing a weapon under Code § 18.2-308.2(A), after having been previously convicted of robbery, and guilty of possession of cocaine. On February 19, 1985, he was sentenced to three years on the handgun charge and one year on the cocaine charge. On appeal, Glover presents the following issues: (1) whether the search of appellant's vehicle violated his fourth amendment rights; (2) whether the evidence was sufficient to prove appellant's possession of a handgun; (3) whether the evidence was sufficient to prove appellant's possession of cocaine; and (4) whether the trial court erred in ruling that the nature of appellant's prior conviction was admissible.

I.

The evidence presented upon Glover's motion to suppress the handgun was that on September 23, 1984, Officer John Horvath, an off-duty Alexandria police officer, was working in full uniform as a security guard at a 7-11 store in Alexandria. According to Horvath, he first observed Glover at about 10:00 p.m. on September 23, 1984, backing his vehicle into a parking space not used by many people. Glover sat in the car about fifteen minutes before entering the store. Once Glover was inside the store, the officer observed that he was watching the cash register and was looking at the customers in the store. Since Glover appeared to be lost, Horvath asked him if he could be of assistance. He stated "that he was trying to locate a friend up on Jordan Street but didn't know what location." Horvath got a map to point out the street location, but Glover, who had on a blue jogging suit, seemed more interested in the cash register than where he wanted to go. The officer noticed that Glover was sweating heavily and was nervous. Glover also pointed out to Horvath a couple in the store and stated that they followed him into the store and that they were after him. Horvath thought that this was suspicious because he had observed the couple in the store before Glover had arrived.

Glover returned to his car, sitting in the driver's seat, where he remained for ten to fifteen minutes. He then returned to the store. The officer approached Glover again to talk with him. Again Glover commenced to sweat heavily, acted nervous, and looked around the store. Glover purchased a soft drink and returned to his car, where he remained.

Horvath had noted a District of Columbia license plate on the car. He testified that: "I had a feeling that subject was a person of suspicious activity, feeling that he might be wanting to rob the store." He checked the license number and found that the vehicle was owned by Bridget Thomas. He called the police department, requested a backup, and went to the parking area to investigate further.

As he approached Glover's vehicle, Horvath noted that Glover was in the driver's seat with his right hand in a blue gym bag which was sitting on the passenger's seat beside him. Glover slowly took his hand out of the bag as Horvath approached and Horvath stated that he did not see anything in Glover's hand as he removed it from the gym bag. Glover acknowledged that the vehicle was registered to Bridget Thomas. He called her on the telephone, and Horvath spoke with her and confirmed that Glover had permission to drive the vehicle. A second police officer arrived and was instructed by Horvath to watch Glover while he (Horvath) went to search the car.

Inside the blue gym bag, Horvath found a loaded .44 magnum pistol and extra ammunition. Glover was then frisked, arrested, and his hands were cuffed behind his back. He was transported in this fashion to police headquarters by Officer Horvath in the back seat of Horvath's police cruiser. Horvath testified that he observed Glover moving around in the back seat, and when they arrived at police headquarters, a search of the back seat revealed a two-inch straw containing a substance later analyzed to be cocaine. Horvath testified that he had checked the rear seat earlier that day and the car had been locked since that time until Glover was put in the rear seat. According to Horvath, no one else had been in the rear seat of the cruiser.

In support of his argument that the search of his vehicle violated his fourth amendment rights, Glover asserts: (1) that the search was not supported by probable cause; (2) that upon confirming his authority to use the car, there were no further grounds to detain him; (3) that there were no grounds for a protective search of the vehicle; and (4) that the search of the vehicle exceeded the scope of a protective search. We can readily dispose of the first argument because the Commonwealth does not claim that the warrantless search of the automobile was supported by probable cause.

The Commonwealth justifies the action of Horvath under the stop and frisk exception to the fourth amendment. This exception was recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968):

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

Id. at 30-31, 88 S.Ct. at 1884-85.

The principle expounded in Terry has been followed in Virginia courts on numerous occasions. See Lansdown v. Commonwealth, 226 Va. 204, 209-211, 308 S.E.2d 106, 110 (1983); Simmons v. Commonwealth, 217 Va. 552, 554-55, 231 S.E.2d 218, 220 (1977); Howard v. Commonwealth, 210 Va. 674, 677, 173 S.E.2d 829, 832 (1970); see also Code § 19.2-83.

Although Terry involved the stop and ensuing patdown search of a person, the stop and frisk exception was extended to automobiles in a series of cases, culminating with Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In Long, the Court acknowledged that investigative detentions involving suspects in automobiles are "fraught with danger to police officers," Id. at 1047, 103 S.Ct. at 3480, and concluded that:

[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. See Terry, 392 U.S., at 21 . "[T]he issue is whether a reasonable prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 27 .

Long, 463 U.S. at 1049-50, 103 S.Ct. at 3481.

We find that the circumstances of the instant case support the conclusion that Officer Horvath possessed a reasonable belief based on specific and articulable facts that Glover may have been armed and presently dangerous if he were permitted to re-enter the car. Horvath was an experienced police officer and it was after dark at the time of the incident. Glover had backed his vehicle in an awkward, albeit legitimate, parking space. He remained in the car several minutes before entering the store, at which time he stated alternately that he needed directions, and that other persons in the store were "out to get him." He appeared nervous and preoccupied with the operation of the cash register. Upon returning to his car, he did not leave the parking area, but instead sat in his car before entering the store a second time. When he returned to his car the second time, he still did not leave the parking area, and upon the officer's approach, was observed removing his hand from the gym bag in a deliberate manner. Employees of the 7-11 store had previously been robbed. Under the totality of the circumstances, we find these facts justified Officer Horvath's reasonable belief that Glover was armed and presently dangerous. The subsequent search was restricted to an area in the car to which Glover would have access. Thus, as in Long, "[i]t is clear that the intrusion was 'strictly circumscribed by the exigencies which justif[ied] its initiation.' " 463 U.S. at 1051, 103 S.Ct. at 3481.

Glover argues that it was not reasonable for Officer Horvath to fear for his safety or for the safety of others, because Glover was not in the car at the time and was effectively under police control at the time the search was conducted. As evidence that the police did not fear him at the time they searched the car, Glover notes that his person was not searched until after the gun was found, indicating that the police did not consider him dangerous until after the search had produced the weapon.

The defendant in Long was not frisked until after the police found the weapon in his car. He made essentially the same argument as that now made by Glover, to which the Supreme Court made the following response:

[Appellant's] reasoning is mistaken in...