COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felt on, Judges Frank and Beales Argued at Chesapeake, Virginia

JOWAYNE ALSTON MEMORANDUM OPINION * BY v. Record No. 0831-06-1 J UDGE 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 Assi stant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Jowayne Alston (appellant) appe als from his conviction followin g 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, a nd possession with intent to distri bute cocaine in vi olation of Code § 18.2-248. He argues the trial court erred in de nying his motion to suppress the concealed weapon found in the passenger compartmen t of his vehicle. For the reasons stated, we affirm the trial

court.
B ACKGROUND “‘On appeal from a denial of a suppression motion, we must re view the evidence in the light most favorable to the Co mmonwealth, giving it the benefit of any reasonable inferen ces.’” 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, 58 2 S.E.2d 448, 449 (2003)). “The defendant has the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - burden to show that the trial court’s denial of his suppressi on motion, when the evidence is considered in the light most favorable to th e Commonwealth, was revers ible error.” Murphy v. Commonwealth , 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). On December 4, 2004, Officer B.W. Fitzgera ld of the Portsmouth Police Department observed a gray Honda driving with a burnt-out right rear running light. Af ter activating his lights and siren, Fitzgerald notic ed that the driver of the Honda, w hom 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 ot her officers assisted Fitz gerald 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 se at of the vehicle. According to Fitzgerald, appellant seemed c onfused as to where his identification and registration were located and searched “erratic[all y]” 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 ba ck seat and pulled a coat over the middle console. Appellant did not look in the pockets of that coat for his iden tification. Fitzgerald, at this point, became concerned for his safety and the safety of his fe llow officers and asked appellant if he had any weapons or drugs in the ve hicle. After appellant re sponded 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.- 3 - Officer R. Ferrell assisted Fitzgerald and appr oached appellant’s vehicle from the passenger side. Though Ferrell did not remember what appella nt was doing prior to st opping his vehicle, he became “very concerned” for officer safety after hearing Fitzgerald tell appellant to put his hands where he could see them. Upon s eeing appellant reach back “for something,” Ferrell almost drew his weapon since he “didn’t know what it was [appellant was reachin g for] at that time.” Ferrell alerted the other officers to appellant’s move ments and commanded appe llant to put his hands where the officers could see them. According to Ferrell, Officer Fitz gerald also ordered appellant to place and keep his hands on the steering wheel. On each occasion, appe llant only temporarily obeyed the officers’ command and continued to move his hands ar ound the vehicle. Upon exiting the vehicle, appellant immediately to ld Fitzgerald, “You ca n’t search my car.” Fitzgerald then directed him to the rear of the ca r, whereupon appellant rest ated, “You can’t search my car.” After appellant moved to the rear of the car and into the control of another officer, Fitzgerald “began looki ng around in the lunge area of the vehi cle of [sic] the dr iver’s side.” Fitzgerald described the lunge area as, “Any immedi ate area where access to a firearm or weapon or something of that nature is asse ssable [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.” F itzgerald explained, “The coat was merely lying on top of the console covering the firearm.” Fitzgerald instructed the officer at the rear of th e vehicle, Officer Primus, to arrest appellant. Primus placed appellant in handcuffs and performe d a search of his person incident to arrest. Primus removed a ball of cocaine from inside appe llant’s underwear, along wi th $175 in cash found in his left front pants pocket and several cell phon es that were clipped to appellant’s waistband.- 4 - The trial court issued a letter opinion denying appellant’ s motion to supp ress. Appellant was subsequently convicte d of carrying a concealed weapon, possession of a firearm with drugs, and possession with intent to distribute cocaine. Thereafter, appellant appealed to this Court.
A NALYSIS Appellant does not challenge the initial stop of the vehicle. Appe llant only contests the search of the passenger compartment of the ve hicle, or “lunge area,” where the concealed handgun was found. If that search is deemed proper and the trial court’s de nial 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 fi ndings of historical fact unless “plainly wrong” or without evid ence to support them and we give due weight to the inferences dr awn 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 r easonable 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 co mpartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police o fficer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the- 5 - officer in believing that the susp ect is dangerous and the suspect may gain immediate control of weapons. This Court has adopted and followed these principl es 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 lik e 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 defendan t “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 activati ng his lights and siren, saw appellant making “erratic” movements to all areas of the vehicl e. When asked for identification, appellant appeared confused and looked back and forth in his glove compartm ent, 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 identific ation. At this point, Fitzgerald felt it necessary to ask appellant whether he had any weapons in the vehicl e. 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 fi nally ordered appellant to step outside of the vehicle, and, as Fitzgerald himself began to remove a ppellant from the vehicle, appellant immediately handed his identification and registration to F itzgerald and exited the vehicle.- 6 - We hold that the above circumstances constitu te specific and articulable facts which form a particularized and objective basis for a reasona ble 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 ar ea, 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 wa s “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 subseque nt search of his person incident to arrest, we address neither.
C ONCLUSION For the foregoing reasons, we affirm the tr ial court’s denial of appellant’s motion to suppress and, accordingly, affirm appellant’s convictions. Affirmed.