COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Frank and Beales 

Argued at Chesapeake, Virginia 

JOWAYNE ALSTON 

 MEMORANDUM OPINION*

 BY 

v. Record No. 0831-06-1 JUDGE RANDOLPH A. BEALES 

 JUNE 5, 2007 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

James A. Cales, Jr., Judge 

 Dianne G. Ringer (Bierowicz & Ringer, P.C., on brief), for 

appellant. 

 Kathleen B. Martin, Senior Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

Jowayne Alston (appellant) appeals from his conviction following a bench trial of carrying a 

concealed weapon in violation of Code § 18.2-308.2, possession of a firearm with drugs in violation 

of Code § 18.2-308.4, and possession with intent to distribute cocaine in violation of Code 

§ 18.2-248. He argues the trial court erred in denying his motion to suppress the concealed weapon 

found in the passenger compartment of his vehicle. For the reasons stated, we affirm the trial 

court. 

BACKGROUND

“‘On appeal from a denial of a suppression motion, we must review the evidence in the light 

most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.’” Kyer v. 

Commonwealth, 45 Va. App. 473, 477, 612 S.E.2d 213, 215 (2005) (en banc) (quoting Slayton v. 

Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003)). “The defendant has the 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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burden to show that the trial court’s denial of his suppression motion, when the evidence is 

considered in the light most favorable to the Commonwealth, was reversible error.” Murphy v. 

Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). 

On December 4, 2004, Officer B.W. Fitzgerald of the Portsmouth Police Department 

observed a gray Honda driving with a burnt-out right rear running light. After activating his lights 

and siren, Fitzgerald noticed that the driver of the Honda, whom he later learned was appellant, 

“began to move around the front of the vehicle, bending slightly to the front, to the side, to the back 

of the vehicle. [The driver] was making all types of movement around the vehicle.” Fitzgerald said 

that these movements continued until Fitzgerald reached the driver’s side window and asked 

appellant for his license and registration. Several other officers assisted Fitzgerald during the stop. 

Appellant was accompanied by two passengers; an adult male was seated in the front passenger seat 

beside appellant, and a juvenile male was seated in the back seat of the vehicle. 

According to Fitzgerald, appellant seemed confused as to where his identification and 

registration were located and searched “erratic[ally]” throughout the vehicle. Appellant looked in 

the glove compartment, in the side of his door, in the pocket of a jacket he was wearing, and again 

in the glove compartment. Appellant then reached into the back seat and pulled a coat over the 

middle console. Appellant did not look in the pockets of that coat for his identification. Fitzgerald, 

at this point, became concerned for his safety and the safety of his fellow officers and asked 

appellant if he had any weapons or drugs in the vehicle. After appellant responded in the negative, 

Fitzgerald asked him to exit the vehicle. Appellant responded, “No. Why do I have to get out of 

my car?” Fitzgerald asked him again and reached into the driver’s side door through a partially 

open window, unlocked, and opened the door. Immediately thereafter, appellant handed his license 

and registration to Fitzgerald. 
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Officer R. Ferrell assisted Fitzgerald and approached appellant’s vehicle from the passenger 

side. Though Ferrell did not remember what appellant was doing prior to stopping his vehicle, he 

became “very concerned” for officer safety after hearing Fitzgerald tell appellant to put his hands 

where he could see them. Upon seeing appellant reach back “for something,” Ferrell almost drew 

his weapon since he “didn’t know what it was [appellant was reaching for] at that time.” Ferrell 

alerted the other officers to appellant’s movements and commanded appellant to put his hands 

where the officers could see them. According to Ferrell, Officer Fitzgerald also ordered appellant to 

place and keep his hands on the steering wheel. On each occasion, appellant only temporarily 

obeyed the officers’ command and continued to move his hands around the vehicle. 

Upon exiting the vehicle, appellant immediately told Fitzgerald, “You can’t search my car.” 

Fitzgerald then directed him to the rear of the car, whereupon appellant restated, “You can’t search 

my car.” After appellant moved to the rear of the car and into the control of another officer, 

Fitzgerald “began looking around in the lunge area of the vehicle of [sic] the driver’s side.” 

Fitzgerald described the lunge area as, “Any immediate area where access to a firearm or weapon or 

something of that nature is assessable [sic] from [sic] the driver where he is sitting.” Fitzgerald 

lifted the coat that appellant had placed over the middle console and discovered a loaded .380 

caliber handgun “in between the driver’s side seat and the console.” Fitzgerald explained, “The 

coat was merely lying on top of the console covering the firearm.” 

Fitzgerald instructed the officer at the rear of the vehicle, Officer Primus, to arrest appellant. 

Primus placed appellant in handcuffs and performed a search of his person incident to arrest. 

Primus removed a ball of cocaine from inside appellant’s underwear, along with $175 in cash found 

in his left front pants pocket and several cell phones that were clipped to appellant’s waistband. 
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The trial court issued a letter opinion denying appellant’s motion to suppress. Appellant 

was subsequently convicted of carrying a concealed weapon, possession of a firearm with drugs, 

and possession with intent to distribute cocaine. Thereafter, appellant appealed to this Court. 

ANALYSIS

 Appellant does not challenge the initial stop of the vehicle. Appellant only contests the 

search of the passenger compartment of the vehicle, or “lunge area,” where the concealed 

handgun was found. If that search is deemed proper and the trial court’s denial of the motion to 

suppress is affirmed, appellant does not challenge the search of his person incident to arrest. 

 Initially we note, 

“Ultimate questions of reasonable suspicion and probable cause to 

make a warrantless search” involve questions of both law and fact 

and are reviewed de novo on appeal. In performing such analysis, 

we 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, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) 

(quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)). 

 When a police officer is presented with reasonable articulable facts to suggest an 

individual stopped for a motor vehicle violation may possess weapons that may be used against 

him, the officer may conduct a limited search of that individual for weapons. Terry v. Ohio, 392 

U.S. 1, 24 (1968). In Michigan v. Long, 463 U.S. 1032, 1049 (1983), the Supreme Court 

extended this principle to a limited search of the passenger compartment of automobiles by 

holding: 

[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 
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officer in believing that the suspect is dangerous and the suspect 

may gain immediate control of weapons. 

This Court has adopted and followed these principles when presented with facts similar to the 

case at bar. See James v. Commonwealth, 22 Va. App. 740, 745-46, 473 S.E.2d 90, 92 (1996) 

(pat down of appellant upheld after he acted “somewhat jittery” and “was unresponsive to [the 

officer’s] request to keep his hands in [the officer’s] view,” which caused the officer “to be 

concerned that appellant might be reaching for ‘a weapon or something like that in the car’”); 

Glover v. Commonwealth, 3 Va. App. 152, 156-57, 348 S.E.2d 434, 438-39 (1986) (search of 

passenger compartment upheld where the defendant “appeared nervous,” “was observed [while 

seated in his car] removing his hand from the gym bag in a deliberate manner,” and “[t]he 

subsequent search was restricted to an area in the car to which [the defendant] would have access 

[to a weapon]”), aff’d per curiam, 236 Va. 1, 372 S.E.2d 134 (1988). 

 Here, Officer Fitzgerald, after activating his lights and siren, saw appellant making 

“erratic” movements to all areas of the vehicle. When asked for identification, appellant 

appeared confused and looked back and forth in his glove compartment, in the side panel of his 

door, and in his jacket pocket. Despite the fact that he was already wearing a jacket, appellant 

reached into the back seat and pulled a coat over the console but did not look into the pockets of 

that coat for his identification. At this point, Fitzgerald felt it necessary to ask appellant whether 

he had any weapons in the vehicle. Officer Ferrell, upon seeing appellant reach into the back 

seat, became “very concerned” for officer safety and almost drew his weapon. Appellant was 

told numerous times by the officers to keep his hands in plain sight and on the steering wheel. 

Each time appellant refused to follow the officers’ instructions and continued to move his hands 

around the vehicle. Fitzgerald finally ordered appellant to step outside of the vehicle, and, as 

Fitzgerald himself began to remove appellant from the vehicle, appellant immediately handed his 

identification and registration to Fitzgerald and exited the vehicle. 
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 We hold that the above circumstances constitute specific and articulable facts which form 

a particularized and objective basis for a reasonable officer to suspect that appellant was in 

possession of a weapon that he was either trying to access or hide. The officers, therefore, had 

reasonable suspicion to search the passenger area, or “lunge area,” of appellant’s vehicle, 

including the area next to the middle console and the driver’s seat, where the gun was found. 

The scope of the search was proper since it was “limited to those areas in which a weapon may 

be placed or hidden.” Long, 463 U.S. at 1049. Because appellant does not challenge the initial 

stop of the vehicle or the subsequent search of his person incident to arrest, we address neither. 

CONCLUSION

 For the foregoing reasons, we affirm the trial court’s denial of appellant’s motion to 

suppress and, accordingly, affirm appellant’s convictions. 

Affirmed.