COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Annunziata 

Argued at Richmond, Virginia 

DERRICK DEVON LOGAN 

 OPINION BY 

v. Record No. 0367-98-2 JUDGE LARRY G. ELDER 

 MARCH 23, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

William L. Wellons, Judge 

 Buddy A. Ward, Public Defender (Office of the 

Public Defender, on brief), for appellant. 

 Ruth Morken McKeaney, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Derrick Devon Logan (appellant) appeals from his bench 

trial conviction for possession of cocaine with intent to 

distribute in violation of Code § 18.2-248. On appeal, he 

contends the trial court erroneously denied his motion to 

suppress. He argues that the officers violated his rights under 

the United States and Virginia Constitutions because they did 

not have the reasonable, articulable suspicion necessary to 

justify a search of his person. We hold that the evidence was 

sufficient to establish reasonable, articulable suspicion that 

appellant was armed, and we affirm his conviction. 
I. 

FACTS 

 On May 19, 1997, Officers Edmonds and Lawhorn stopped the 

car in which appellant was a passenger because it did not 

display a valid inspection sticker. When Edmonds approached the 

small two-door car, he saw a 9 mm handgun in the middle of the 

dashboard. When Officer Edmonds noticed the gun, he asked the 

driver for his license and registration and then had the driver 

and three passengers exit the vehicle for officer safety. 

Neither officer could say which seat in the car appellant had 

occupied. Edmonds testified that the passengers were young and 

"all seemed kind of nervous." He said that, as they were 

exiting the vehicle, "all of them had their hands in their 

pocket[s] . . . . They had a hard time being stationary; just 

kept moving; just continued to make eye contact towards one 

another." Edmonds later testified, however, when recalled by 

the Commonwealth, that he "[could not] really say" that 

"[appellant] was nervous by himself" or that he had his hands in 

his pockets.1

 

 1The Commonwealth conceded on oral argument to the trial 

court that "[Officer Edmonds] couldn't recall [appellant] being 

nervous" and that Edmonds said only that "[t]he group appeared 

to be nervous and some of them had put their hands in their 

pockets." 

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 In response to Edmonds' questions, the driver said that the 

gun on the dashboard was his. Edmonds seized the gun and 

discovered it was loaded. The driver said he wanted to talk to 

Edmonds, so Edmonds asked for permission to search the driver, 

which he received. After patting the driver down, Edmonds 

allowed him to sit in the patrol car. At that time, which was 

less than five minutes after the officers initiated the traffic 

stop, Edmonds noticed that Lieutenant Loftus had arrived on the 

scene and that he and Lawhorn were talking to the passengers. 

Edmonds then ran a registration and license check for the 

vehicle and a permit check for the gun and wrote the summons for 

the invalid inspection sticker.2 After issuing the summons and 

before exiting the police vehicle with the driver, Edmonds 

obtained the driver's permission to search the vehicle. 

 While Edmonds dealt with the driver, Lawhorn stood with the 

three passengers under a nearby tree. Lawhorn testified that 

appellant was not acting "nervous." Although Lawhorn "had [all 

the passengers] keep their hands out of their pockets" and "had 

to remind them" on "a couple of occasions," he could not recall 

whether he had to remind appellant. Lawhorn testified that 

 

 2These checks revealed that both the vehicle and the gun 

were properly registered to the driver and that the driver had a 

valid license. 

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"[i]t wasn't very long [before Lieutenant Loftus arrived on the 

scene] because [he] was pretty close to the area." Upon his 

arrival, Loftus asked Lawhorn--who had been on the police force 

less than a year and "had just come out of the academy"--whether 

he had frisked the passengers for weapons for officer safety. 

Lawhorn had not thought about conducting pat-down searches 

earlier and patted appellant down after Loftus' inquiry. 

Lawhorn believed that he patted appellant down before Edmonds 

searched the driver's car. During the pat-down, Lawhorn felt a 

hard object in appellant's left front pocket which "[he] thought 

. . . was a knife." He removed the item, which later proved to 

be crack cocaine. 

 In denying appellant's motion to suppress, the trial court 

noted that portions of the testimony of Officers Edmonds and 

Lawhorn were inconsistent and that it would give Officer 

Edmonds' observations more weight because he was the primary 

investigating officer and had more years of experience as a 

police officer than did Lawhorn. It found that, at the time 

appellant was searched, "the citation . . . had not yet been 

issued, and [Officer Edmonds] was still in the car writing." As 

a result, it held that the search for weapons was appropriate, 

and it denied the motion to suppress. 

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 The trial court subsequently convicted appellant of the 

charged offense. 

II. 

ANALYSIS 

 At a hearing on a defendant's motion to suppress, the 

Commonwealth has the burden of proving that a warrantless search 

or seizure did not violate the defendant's Fourth Amendment 

rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 

S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App. 

671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the 

evidence in the light most favorable to the prevailing party, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 

1067, 407 S.E.2d 47, 48 (1991). "[W]e are 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." McGee v. Commonwealth, 25 Va. 

App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing 

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 

1659, 134 L. Ed. 2d 911 (1996)). However, we review de novo the 

trial court's application of defined legal standards such as 

probable cause and reasonable suspicion to the particular facts 

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of the case. See Shears v. Commonwealth, 23 Va. App. 394, 398, 

477 S.E.2d 309, 311 (1996); see also Ornelas, 517 U.S. at 699, 

116 S. Ct. at 1659. 

 Further, the Fourth Amendment requires only that an 

objectively reasonable basis exist for a search. See, e.g., 

Whren v. United States, 517 U.S. 806, 812-13, 116 S. Ct. 1769, 

1774, 135 L. Ed. 2d 89 (1996). "'[T]hat the officer does not 

have the state of mind which is hypothecated by the reasons 

which provide the legal justification for the officer's action 

does not invalidate the action taken as long as [all] the 

circumstances, viewed objectively, justify that action.'" Id.

at 813, 116 S. Ct. at 1774 (quoting Scott v. United States, 436 

U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168 (1978)) 

(emphasis added). 

 Appellant concedes that Officer Edmonds lawfully stopped 

the vehicle in which appellant was riding. Further, appellant 

does not contend that he was forced to exit the vehicle or 

remain at the scene of the stop against his will and without 

legal basis. He contends only that the officers lacked the 

reasonable, articulable suspicion necessary to frisk him for 

weapons once the stop had been effected. 

 The "generalized risk to officer safety" which permits 

officers "to order occupants to exit a lawfully stopped vehicle" 

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is insufficient "to justify a routine 'pat down' of all 

passengers as a matter of course." United States v. Sakyi, 160 

F.3d 164, 168-69 (4th Cir. 1998); see Maryland v. Wilson, 519 

U.S. 408, 414-15, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41 (1997) 

(holding that officer may require passengers to exit lawfully 

stopped vehicle for officer safety without particularized 

suspicion of danger or wrongdoing). An officer may frisk a 

passenger in a lawfully stopped vehicle if the officer has 

reasonable, articulable suspicion that the passenger poses a 

threat to the officer's safety. See, e.g., Lansdown v. 

Commonwealth, 226 Va. 204, 212-13, 308 S.E.2d 106, 111-12 (1983) 

(in case where vehicle was driven evasively at speeds exceeding 

80 m.p.h. and stopped on unlit street and occupants were unable 

to provide identification, holding that officer was justified in 

believing driver and passengers might be armed and dangerous, 

justifying frisk for weapons); James v. Commonwealth, 22 Va. 

App. 740, 745-46, 473 S.E.2d 90, 92 (1996) (upholding frisk of 

passenger who was in vehicle with person wanted on a felony 

warrant and who appeared nervous, failed to comply with 

officer's request to keep his hands on dashboard, and kept 

asking to exit the vehicle). Further, the attendant 

circumstances which provide the necessary reasonable suspicion 

to search a passenger do not require that the passenger’s 

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conduct itself be suspicious: "A passenger's conduct may be 

sufficient to arouse reasonable suspicion, but it is not 

necessary when other factors are present." Sakyi, 160 F.3d at 

169-70 (citation omitted). 

 In Sakyi, neither the driver nor the passenger could 

produce any identification and, when the driver retrieved his 

vehicle registration, the officers spotted drug paraphernalia in 

the glove box. Id. at 166. After arresting the driver for 

driving on a revoked license and prior to conducting a 

consensual search of the car, one of the officers patted the 

passenger down for weapons and found cocaine. Id.

 Although Sakyi involved drug paraphernalia, the Fourth 

Circuit held that a reasonable, articulable suspicion of the 

presence of drugs gave rise to a concern for the presence of 

guns, which, "in the absence of factors allaying [the officer's] 

safety concerns, . . . [permitted the officer to] pat [the 

occupants of the vehicle] down briefly for weapons to ensure the 

officer's safety and the safety of others." Id. at 169; see

Peguese v. Commonwealth, 19 Va. App. 349, 352-53, 451 S.E.2d 

412, 414 (1994) (en banc) (upholding pat-down search of accused 

driver whose passenger had engaged in what appeared to be a drug 

transaction). In so holding, the Fourth Circuit observed that 

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 when drugs are suspected in a vehicle and 

the suspicion is not readily attributable to 

any particular person in the vehicle, it is 

reasonable to conclude that all occupants of 

the vehicle are suspect. They are in the 

restricted space of the vehicle presumably 

by choice and presumably on a common 

mission. 

Sakyi, 160 F.3d at 169. 

 Here, similar but stronger circumstances provided an 

objectively reasonable, articulable suspicion that appellant and 

the other passengers presented a danger to Officers Edmonds and 

Lawhorn. The evidence, viewed in the light most favorable to 

the Commonwealth, proved that Officer Edmonds spotted not drug 

paraphernalia in the glove box but a firearm in plain view in 

the middle of the dashboard as soon as he approached the vehicle 

in which appellant was riding. Although the driver claimed 

ownership of the weapon, it was in plain view from outside the 

vehicle, and under the principles set out in Sakyi, a reasonable 

officer was free to conclude that the weapon could have belonged 

to any of the vehicle's occupants. Subsequent events did not 

allay officer concerns about safety. When Edmonds asked 

appellant and the other passengers to exit the vehicle, at least 

some of them appeared nervous and had their hands in their 

pockets, and they all moved around a lot and continued to make 

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eye contact with each other.3 Officer Lawhorn instructed 

appellant and the other passengers to keep their hands out of 

their pockets, and he had to remind them on "a couple of 

occasions." Even when Lieutenant Loftus arrived on the scene, 

the vehicle's occupants still outnumbered the officers. See

Lansdown, 226 Va. at 213, 308 S.E.2d at 112 (noting that, if 

officer had reasonable grounds to fear for his safety, mere 

increase in number of officers at scene insufficient as matter 

of law to dispel that fear). 

 Although a brief delay may have occurred between the 

officers' initial development of reasonable suspicion for a 

pat-down search and the actual execution of the search, no 

principle of law provides that the basis for a pat-down search 

dissolves if it is not conducted immediately. See Bethea v.

Commonwealth, 245 Va. 416, 420, 429 S.E.2d 211, 213-14 (1993) 

(in case decided before Maryland v. Wilson, rejecting argument 

of accused that delay in conducting pat-down proved officer had 

insufficient concern for his safety to require accused to exit 

vehicle); see also United States v. Menard, 95 F.3d 9, 11 (8th 

Cir. 1996) (holding that officer's delay in frisking accused 

 

 3The trial court found that all the vehicle's occupants had 

their hands in their pockets, but the testimony of Edmonds and 

Lawhorn proved only that some of the occupants had their hands 

in their pockets. 

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until after back-up officer arrived on scene and reminded him of 

safety concern did not prove that officer lacked particularized 

suspicion for the frisk, especially in light of fact that, in 

the interim, officer had found gun on companion of accused and 

arrested companion, which was likely to heighten threat accused 

posed to officer safety). Nothing in the record indicates that 

the facts which provided the basis for the pat-down had ceased 

to exist before the pat-down was executed. In fact, the 

behavior of some of the passengers during and after their exit 

from the car provided additional support for the pat-down of 

appellant. Further, the evidence indicates that the pat-down 

search of appellant began no more than five minutes after the 

officers initiated the stop and first saw the firearm, before 

Officer Edmonds had finished issuing a citation for the offense 

which provided the basis for the stop, and before Edmonds began 

his consensual search of the car. See Menard, 95 F.3d at 11 

(noting reasonableness of fear of officer conducting consent 

search of car in which armed suspected drug trafficker was a 

passenger that vehicle's other occupants, if armed, could pose 

safety threat if search revealed contraband). 

 Under the standards set out in Sakyi, we hold that the 

totality of the circumstances provided the officers with the 

reasonable suspicion necessary to frisk appellant for weapons. 

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Therefore, the trial court did not err in denying appellant's 

motion to suppress and convicting him for violating Code 

§ 18.2-248. 

 Because the evidence supports the trial court's finding 

that the officers had reasonable, articulable suspicion to 

justify the search, we affirm appellant's conviction. 

Affirmed.

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