COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

LEONARD SHELTON JACKSON 

 OPINION BY 

v. Record No. 2035-94-2 JUDGE MARVIN F. COLE 

 APRIL 30, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Maureen L. White, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Leonard Shelton Jackson appeals his conviction for 

possessing cocaine with the intent to distribute. He contends 

that the trial court erred in denying his motion to suppress the 

cocaine. Finding no error, we affirm. 

 In reviewing a trial court's denial of a motion to suppress, 

"the burden is upon [the appellant] to show that this ruling, 

when the evidence is considered most favorably to the 

Commonwealth, constituted reversible error." Fore v. 

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. 

denied, 449 U.S. 1017 (1980). 

 BACKGROUND

 In the early hours of April 14, 1994, while working off-duty 

in a high-crime area, Officer John Bandy "saw muzzle flash" and 

"heard several shots [fired] from handguns." Bandy saw a group 
2 

of seven or eight people standing in the area where the shots 

originated. A tan Oldsmobile was parked near the group. As 

Bandy approached to investigate, 

 several subjects evidently saw [him] or 

something, because they went to the 

Oldsmobile, went inside the Oldsmobile. The 

doors opened and so forth. The trunk opened. 

 The trunk was shut, the doors were shut, and 

[Bandy] went up to the subjects[, who had 

walked away from the car,] and started 

patting down a couple of the subjects 

[including appellant] for weapons. 

 Bandy found a pager on appellant, but discovered no weapon 

on him. Bandy testified that he also "comb[ed] the area" and 

found no weapon. 

 When Officer Stephanie Davis arrived in a marked cruiser, 

Bandy told her what he had seen. Bandy told Davis "to go around 

the corner [and wait] . . . , they're probably going to come back 

to the car and get the guns back out." Bandy watched the area 

and saw "[t]hree subjects g[e]t into the car." A fourth subject 

stood on the corner as an apparent lookout. The car's lights 

came on "as if the car was going to" leave. Bandy radioed for 

Davis to approach the area, but when her police cruiser 

approached, the lookout "holler[ed] something at the car," 

causing the three people in the car to get out of the car and run 

behind an apartment building. Bandy again told Davis to park out 

of sight; he told Davis that he would signal her when the 

Oldsmobile left. After Davis left the area, the subjects entered 

the vehicle and drove away. Davis followed the car, and Bandy 
3 

followed Davis in his personal vehicle. Davis stopped the car, 

and appellant, who was driving, got out and began to walk toward 

some apartments. Davis ordered appellant to get back in the car. 

 Appellant had no driver's license, and he "gave [Bandy] 

permission to search the car." Bandy found no contraband in the 

passenger area. Bandy then asked whether he could search the 

trunk, and, although Bandy saw appellant open the trunk earlier, 

appellant said the trunk was broken. Appellant told Bandy, "if 

you can get into [the trunk] you can search it." Bandy was able 

to open the trunk. Inside the trunk, Bandy found a jacket; in 

the jacket, Davis found a bag containing cocaine. The three 

occupants of the car were arrested. 

 The female passenger told Bandy that appellant "had some 

more cocaine in his crotch area." The police recovered a pager 

and $394 in currency from appellant. Bandy stated that his main 

concern in stopping the car was "because of [the possibility 

that] the gun [was] in the car." Bandy explained that he "was 

acting on the original gunfire and him [appellant] going to the 

vehicle shortly after the gunfire." Bandy also stated that he 

searched the area of the gunshots. 

 Officer Davis testified that she "got a promiscuous shooting 

call a little bit before there was a call [from Bandy] for 

assistance, and [Bandy] needed a patrol unit to assist him on a 

person or persons possibly still had a gun on them or in the 

car." Davis corroborated Bandy's account of appellant and two 
4 

other subjects entering the car, seeing the police drive up, 

getting out of the car, and returning to the car later. When 

appellant drove away, Davis followed. When she activated her 

emergency lights, appellant's "car sped away . . . and made a 

right turn" and stopped. Davis "saw a lot of movement in the 

car. Everyone in the car was bending down. I couldn't tell if 

they were reaching or what they were doing. There was just a lot 

of movement in the vehicle." Davis thought the occupants were 

possibly "trying to hide some kind of weapon." Davis' primary 

concern at the time was her "safety, the officer's safety around 

me, because of the weapons." When appellant got out of the car 

and began walking away, Davis pulled her weapon and told him to 

wait in the car. 

 ANALYSIS

 Appellant contends that the police unlawfully stopped his 

car. According to appellant, because the earlier patdown of 

appellant by Bandy yielded no contraband, the second stop of 

appellant and his car was, at a minimum, an unlawful stop under 

Terry v. Ohio, 392 U.S. 1 (1968), and possibly an unlawful 

arrest. 

 "'If there are articulable facts supporting a reasonable 

suspicion that a person has committed a criminal offense, that 

person may be stopped in order to identify him, to question him 

briefly, or to detain him briefly while attempting to obtain 

additional information.'" Williams v. Commonwealth, 4 Va. App. 
5 

53, 64, 354 S.E.2d 79, 85 (1987) (quoting Hayes v. Florida, 470 

U.S. 811, 816 (1985)). "[W]hether [a] stop [i]s justified is 

dependent upon whether 'the facts available to the officer at the 

moment of the seizure or the search [would] "warrant a man of 

reasonable caution in the belief" that the action was 

appropriate.'" Quigley v. Commonwealth, 14 Va. App. 28, 32, 414 

S.E.2d 851, 853-54 (1992) (quoting Terry v. Ohio, 392 U.S 1, 

21-22 (1968)). 

 Bandy possessed probable cause to believe that a crime had 

been committed when he saw and heard gunfire. E.g., Code 

§§ 18.2-280 (willfully discharging firearm in public place, a 

Class 4 felony or Class 1 misdemeanor, depending on the 

location), 18.2-286 (shooting in or across a street, a Class 4 

misdemeanor), 18.2-286.1 (shooting from vehicle, a Class 5 

felony). Therefore, at a minimum, Bandy was justified in briefly 

detaining the group of people to inquire about the crime and to 

pat them down for weapons pursuant to Terry if he reasonably 

feared for his safety. 392 U.S at 21. Appellant concedes that 

the initial patdown was proper and lawful under Terry. However, 

the critical issue is whether the stop of appellant's car, after 

the initial unsuccessful patdown, was lawful, and, if so, upon 

what basis. 

 When Bandy's initial patdown of the appellant and search of 

the area around the vehicle failed to disclose a weapon, Bandy 

left the immediate area to observe and investigate further. 
6 

Although he had seen several people enter and exit the car, Bandy 

did not know who owned the car and whether the car was capable of 

being driven. Bandy kept in contact with Davis in case his 

observations revealed that the car was operational and that 

someone intended to drive it out of the area while it contained a 

hidden weapon. During his surveillance, Bandy acquired 

additional information linking the car with the group, and, 

specifically, the driver and probable owner. After the car drove 

away, Bandy directed Davis to follow and stop it. 

 Davis, who received a dispatch of the shooting, saw 

appellant and the two passengers act suspiciously when she 

initially approached the Oldsmobile. Later, when the car left 

the scene, she stopped it. 

 Because appellant was in the car, he asserts that the stop 

was another Terry stop based on the same information possessed by 

the police when they patted him down. However, the stop of the 

car was based on newly acquired information, linking appellant 

with possession of the car. Therefore, the stop of appellant's 

car was justified as a Terry stop. 

 "A police officer may stop a motor vehicle, 

without probable cause, for investigatory purposes 

if [the officer] possesses a reasonable and 

articulable suspicion 'that a motorist is 

unlicensed or that an automobile is not 

registered, or that either the vehicle or an 

occupant is otherwise subject to seizure for 

violation of law.'" Bulatko v. Commonwealth, 16 

Va. App. 135, 136-37, 428 S.E.2d 306, 307 (1993) 

(quoting Waugh v. Commonwealth, 12 Va. App. 620, 

621-22, 405 S.E.2d 429, 429 (1991)). Although the 

Commonwealth has the burden of proving that such 
7 

an investigatory stop is lawful, the level of 

suspicion required for an investigatory stop is 

less demanding than the standard of probable 

cause. Id. There are no bright line rules to 

follow when determining whether a reasonable and 

articulable suspicion exists to justify an 

investigatory stop. Instead, courts must consider 

"the totality of the circumstances--the whole 

picture." United States v. Sokolow, 490 U.S. 1, 

8, (1989). "In evaluating whether an 

investigative detention is unreasonable, common 

sense and ordinary human experience must govern 

over rigid criteria." United States v. Sharpe, 470 U.S. 675, 685 (1985). 

Hoye v. Commonwealth, 18 Va. App. 132, 134-35, 442 S.E.2d 404, 

406 (1994). See also Delaware v. Prouse, 440 U.S. 648, 653-54 

(1979); Terry, 392 U.S. at 21; Murphy v. Commonwealth, 9 Va. App. 

139, 143, 384 S.E.2d 125, 127-28 (1989). 

 In Adams v. Williams, 407 U.S. 143 (1972), the Supreme Court 

recognized the need for police officers to adopt an "intermediate 

response" rather than ignore a dangerous situation and allow a 

possible crime to go uninvestigated. Justice Rehnquist stated in 

Adams: 

 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. 

Id. at 145-46 (citations omitted). 
8 

 Successive investigatory Terry stops of a possible suspect 

are not per se unlawful. See United States v. Ilazi, 730 F.2d 

1120, 1125-26 (8th Cir. 1984). 

 To so hold would preclude law enforcement 

officials from stopping a suspect a second 

time whenever the first stop did not provide 

probable cause, even though it tended to 

confirm their suspicions of illegal activity. 

 We believe that to adopt a per se rule 

prohibiting successive investigatory stops 

would unduly hinder efforts to interdict 

illegal [behavior]. 

Id. at 1126. See also State v. Aillon, 521 A.2d 555, 563 (Conn. 

1987) (approving "second stop" that "ha[s] a different impetus," 

or is based on different facts); United States v. Peters, 10 F.3d 

1517, 1523 (10th Cir. 1993) (holding successive stop illegal 

absent additional, new basis for second stop). 

 In Jha v. Commonwealth, 18 Va. App. 349, 444 S.E.2d 258 

(1994), we approved a second Terry stop of a suspect where police 

officers obtained additional information that was properly 

considered with the initial information. We explained that, 

after the police find nothing illegal from a first Terry stop, 

"they [a]re not required to ignore the facts that triggered it, 

and thus, [a]re not precluded from using those facts in 

establishing probable cause for [a] second detention." Jha, 18 

Va. App. at 354, 444 S.E.2d at 260 (citing Ilazi, 730 F.2d at 

1126). 

 Viewing the totality of the circumstances underlying the 

stop of appellant's car, we consider the information possessed by 
9 

the police at the time of the initial patdown/Terry stop (the old 

information) in conjunction with information acquired after the 

patdown/Terry stop (the new information). 

 From the old information, the police knew that a crime had 

been committed, that the weapon had not been recovered, and that 

it might be concealed or hidden in the area or in the car. The 

unsuccessful patdown established that appellant or others in the 

group did not physically possess the weapon. Although Bandy saw 

suspicious activity involving the car, no evidence established 

who owned the car. Moreover, it was operational and mobile, and, 

thus, capable of transporting a hidden weapon. 

 The warrantless search of an automobile, "where there are 

both probable cause to believe the car contains evidence of crime 

and exigent circumstances," is a well established exception to 

the warrant requirement. McCary v. Commonwealth, 228 Va. 219, 

227, 321 S.E.2d 637, 641 (1984). 

 Instead of forcibly entering the stationary car and 

searching it, Bandy and Davis waited and observed. During their 

observations, the officers gained additional information. They 

saw three suspects enter the car while a lookout stationed 

himself on the corner. When Davis approached the car, the 

lookout signaled to the three occupants, who got out of the car. 

 Finally, Bandy and Davis saw a suspect from the group 

(appellant) drive the vehicle from the area. 

 Therefore, the police gained additional evidence after the 
10 

unsuccessful patdown of appellant to justify the stop of the car. 

 They observed three people enter the parked car, saw one of the 

group members take control of the car, and learned that the car 

was operational, and, thus, had the ability to leave the area and 

possibly transport a hidden weapon to another location. 

 The combined effect of the old and new information provided 

Bandy and Davis with sufficient reasonable and articulable 

suspicion that the occupants and/or vehicle were subject to 

seizure. 

 After appellant stopped his car, got out, and tried to 

leave, Davis had authority to maintain the status quo and order 

him to remain there. "Once an officer has lawfully stopped a 

suspect, he is 'authorized to take such steps as [are] reasonably 

necessary to protect [his and others'] personal safety and to 

maintain the status quo during the course of the stop.'" Servis 

v. Commonwealth, 6 Va. App. 507, 519, 371 S.E.2d 156, 162 (1988) 

(quoting United States v. Hensley, 469 U.S. 221, 235 (1985)). 

See also Terry, 392 U.S. at 27; United States v. Crittendon, 883 

F.2d 326, 329 (4th Cir. 1989) (holding that the use of handcuffs 

during an investigatory stop is permissible to maintain the 

status quo or to protect the officer). 

 Because the stop was justified, appellant's consent was not 

tainted. Accordingly, we find that the trial court did not err 

in denying appellant's motion to suppress. 

 Affirmed.
11 

BENTON, J., dissenting. 

 When Officer Bandy first detained Leonard Shelton Jackson, 

he discovered no evidence to suggest that Jackson might have been 

involved in the discharge of a weapon. Because Officer Bandy did 

not obtain evidence of criminal activity either during or after 

the search, I would hold that the second detention violated 

Jackson's fourth amendment right to be free from "'unreasonable 

searches and seizures.'" Terry v. Ohio, 392 U.S. 1, 9 

(1968)(quoting Elkins v. United States, 364 U.S. 206, 222 

(1960)). 

 [I]f probable cause is not developed during a 

Terry-type encounter, the officer must 

release the suspect. This is the case 

because when reasonable suspicion has been 

dispelled or probable cause has not 

developed, the conduct upon which the officer 

originally based his suspicions has proved to 

be an illusory ground for suspicion under the 

particular circumstances, and thus, has been 

exhausted. Being illusory, the ground no 

longer reasonably supports a continuation of 

the search. Absent a new and independent 

basis for suspicion, the officer must halt 

his investigation in accordance with Terry

and [United States v.] Place [, 462 U.S. 696 

(1983)]. 

 Of course, a second officer who is 

unaware of the fruitless search conducted 

earlier may initiate his own investigation 

based on the same "suspicious" behavior that 

was exhausted by the first officer's failed 

investigation. The officer who performed the 

original investigation, however, may not 

release the suspect as required by Terry and 

Place, wait until he has travelled down the 

road a few miles, and then make a second 

Terry stop based solely on the conduct that 

has already proved to be illusory. 
12 

Similarly, the officer cannot circumvent 

Terry and Place by calling upon a different 

officer to make the second intrusion in his 

stead. 

United States v. Peters, 10 F.3d 1517, 1522 (10th Cir. 1993). 

 The evidence proved that after Officer Bandy heard several 

shots from a handgun he looked up a hill and saw seven or eight 

people standing around. He "saw [a] muzzle flash in the area." 

Officer Bandy heard the radio dispatcher broadcast a report of 

gunfire, told the dispatcher he was in the area, and walked 

toward the assembled group. As he approached, he saw several 

individuals walk to an automobile, and he saw doors and the trunk 

opened and closed. Two to five minutes passed before he reached 

the individuals. He concluded that they went to the automobile 

because "several subjects evidently saw [him] or something." 

When Officer Bandy arrived at the automobile, he detained several 

persons and "started patting down a couple of the subjects [, 

including Jackson] for weapons." Several individuals walked 

away, however, and were not detained or frisked. 

 When Officer Davis arrived in her vehicle, Officer Bandy 

told her what he had observed and done. Officer Bandy had not 

discovered a gun and did not arrest the individuals who he had 

detained and frisked. Officer Davis drove away. Although 

Officer Bandy walked away, he continued to watch Jackson and the 

remaining individuals. He did not see a gun or hear any more 

gunfire. 
13 

 After Officer Bandy walked away, he saw four individuals 

return to the automobile. Three of the individuals entered the 

automobile and one remained outside. Officer Davis then returned 

and drove by the automobile. She saw the individuals leave the 

automobile, go to another vehicle across the street, and lean on 

it. Officer Davis again drove away. 

 When Officer Davis drove away, the individuals returned to 

the automobile and drove away. Officer Bandy contacted Officer 

Davis and asked her to stop the automobile. Officer Bandy 

testified that he asked Officer Davis to stop the automobile 

Jackson was driving because he suspected that a gun was in the 

automobile. No gun was found in the automobile during the 

search. 

 When viewed "objectively through the eyes of a reasonable 

police officer," Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 

S.E.2d 125, 128 (1989), the circumstances that the officers 

observed after Officer Bandy detained and frisked Jackson did not 

amount to a reasonable suspicion that Jackson or anyone in the 

automobile possessed a gun. That three people entered the car 

and were capable of leaving the area by automobile and not by 

foot did not contribute to reasonable suspicion that they 

possessed a gun. 

 Furthermore, when Officer Bandy first detained and searched 

Jackson, he knew that several individuals had quickly walked away 

and left the area. The officer did not eliminate the likely 
14 

possibility that the persons who walked away had the gun. He 

knew, however, that Jackson and the persons he frisked near the 

automobile did not possess a gun. 

 The purpose of a Terry stop is to promptly dispel or confirm 

an officer's suspicions. 392 U.S. at 30. Since "probable cause 

[was] not developed, the conduct upon which [Officer Bandy] 

originally based his suspicions . . . under the particular 

circumstances, [was] exhausted." Peters, 10 F.3d at 1522. 

Without a "new and independent basis for suspicion" Officer Bandy 

could not continue the detention. Id. When Officer Bandy told 

Officer Davis to stop the automobile, the officers conducted an 

unlawful Terry stop. 

 The cases that have addressed the legality of successive 

detentions have generally held that government agents may not 

detain an individual a second time upon the same suspicions of 

criminal activity. In Peters, an Arizona police officer stopped 

a rental truck for erratic driving. 10 F.3d at 1519. After 

checking the driver's and passenger's identification and 

observing that they were extremely nervous, the officer concluded 

that they possessed drugs and asked for consent to search the 

truck. Failing to find any drugs during his search, the officer 

allowed the driver to leave and relayed his suspicions to a 

border patrol agent. The agent followed the truck and observed 

it make an abrupt lane change. When the agent looked at the 

occupants, he concluded that the driver and passenger were 
15 

nervous and stopped them on suspicion of carrying illegal 

narcotics. Id. at 1519-20. The Court ruled that the second 

Terry stop was unlawful because there was no "new and independent 

basis" for a search. Id. at 1522. 

United States v. Miranda-Garcia, 23 F.3d 1331 (8th Cir. 

1994), involved similar circumstances. A police officer stopped 

a rental truck after he saw it swerving on the interstate. He 

issued the driver a warning ticket, inquired about weapons and 

narcotics, and conducted a brief search of the truck with the 

occupant's consent. After allowing the driver and passenger to 

leave, the officer learned that the passenger had been arrested 

on a firearms violation. The officer asked his dispatcher to 

send a drug-trained dog and requested another officer to stop the 

truck. Id. at 1333. Following a second search, the officer 

discovered cocaine in the truck's cab. Id. at 1333-34. 

 The court held that the second detention violated the fourth 

amendment because the agent had no reasonable suspicion of 

criminal activity. Id. at 1336. The officer saw a traffic 

violation and suspected criminal activity during the first 

detention; however, the only additional information to justify 

the second stop was the report of a previous firearm violation. 

That information did not suggest criminal activity was ongoing, 

and, therefore, the officer had no more reasonable suspicion 

during the second detention than the first. Id. at 1335-36. 

 Relying principally upon United States v. Ilazi, 730 F.2d 
16 

1120 (8th Cir. 1984), and Jha v. Commonwealth, 18 Va. App. 349, 

444 S.E.2d 258 (1994), the majority upholds the second detention 

in this case. Those cases do not support the majority's 

conclusion. In Ilazi, the defendant did not contest the finding 

"that reasonable suspicion also justified the [second] stop . . . 

but argue[d] instead that the second stop, occurring as it did 

soon after the initial stop . . . constituted an arrest without 

probable cause." Id. at 1125. The police discovered during the 

first detention that the defendant was an alien carrying 

identification papers with two different names, that defendant 

was traveling with another alien who had no passport, and that 

defendant had no luggage. The Court ruled that the first 

detention "tended to confirm [the officers'] suspicions of 

illegal activity" and held that the second detention did not 

constitute an arrest without probable cause. Id. at 1126. That 

holding is not relevant to the issue in this case. 

 Although in Jha this Court upheld a second detention of a 

suspect within an hour of the first detention, the issue of 

successive Terry detentions was not raised. Moreover, during the 

intervening hour, the police observed additional suspicious 

behavior that supported the second detention. The police first 

detained Jha when they were investigating a call about a 

suspicious person behind a store. The officer saw Jha outside 

the rear door of a store with his hand raised as if attempting to 

break into the store. After Jha ran, an officer detained him. 
17 

During a search of Jha and his vehicle, the officer found a 

screwdriver-like device, a computer device, and a radio. After 

the officer released Jha, the officer discovered a telephone 

junction box open with wires exposed in the area behind the store 

where Jha had been. Id. at 350-51, 444 S.E.2d at 259. 

 Other officers who heard the report followed Jha. Jha drove 

away from the store and into a development. The officers 

following Jha noticed that a vehicle's window had been smashed in 

the area where Jha had been. The officer then approached Jha to 

get identification and saw in plain view a device that was used 

to tap into telephone lines. This Court ruled that Jha "was 

detained only after the police found a van, with a broken window 

and glass lying on the seat, in the area in which [Jha] had just 

been walking." Id. at 354, 444 S.E.2d at 260. This additional 

cause to believe Jha had committed another offense distinguishes 

the detention of Jha from that of Jackson. 

 The reasoning and analysis in United States v. Morin, 665 

F.2d 765 (5th Cir. 1982), is more pertinent to this case. A 

police officer suspected Morin might be smuggling drugs and 

detained him in the Dallas airport. After making inquiries, the 

officer released Morin and allowed him to board his airplane. 

The officer then notified officers in the Austin airport of his 

suspicions. Relying solely on the Dallas officer's suspicions, 

officers in Austin approached Morin and again detained him. 

Acknowledging "[t]he coercion inherent in the successive stop 
18 

situation," the court ruled that "successive stops of an 

individual based on the same information strongly indicate a 

finding that an arrest has taken place." Id. at 769. The Court 

found that in the absence of probable cause the second stop 

amounted to an unlawful second fourth amendment seizure because 

both stops were based on the same information. Id.

 The record reveals that Officer Bandy ordered the car 

stopped for the same reasons he conducted the first stop -- a 

suspicion that someone may have possessed a gun. Applying the 

analysis in the foregoing cases, I would hold that Officers Davis 

and Bandy unlawfully conducted successive detentions based upon 

the same information. The second detention was not predicated 

upon any violation of law. The officers did not obtain any "new" 

information. They relied on "old" information and detained 

Jackson without a reasonable articulable suspicion of criminal 

activity. Because a second detention of a person by a police 

officer is "inherently more intrusive and coercive than the 

first," Ilazi, 730 F.2d at 1126, I would hold that the trial 

judge erred in refusing to suppress the evidence, and I would 

reverse Jackson's conviction for possession of cocaine with 

intent to distribute.