COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Senior Judge Hodges 

Argued at Norfolk, Virginia 

CLIFTON MOORE, JR. 

 OPINION BY 

v. Record No. 1922-96-1 JUDGE JERE M. H. WILLIS, JR. 

 JULY 22, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK 

E. Everett Bagnell, Judge 

 Patricia Atkins Cannon, Senior Assistant 

Public Defender (Office of the Public 

Defender, on brief), for appellant. 

 Monica S. McElyea, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Clifton Moore, Jr. contends (1) that the trial court erred 

in denying his motion to suppress evidence and (2) that the 

evidence was insufficient to support his convictions for a second 

offense of possession of heroin with the intent to distribute and 

conspiracy to possess heroin with the intent to distribute. We 

affirm the convictions. 

 I. 

 On August 7, 1993, on an interstate highway bridge, Trooper 

Taylor stopped a vehicle for speeding sixty-nine miles per hour 

in a fifty-five mile per hour zone. Anthony Ellis was driving, 

Moore was in the front passenger seat, and a man named Faison was 

in the rear seat. No pedestrian walkway led off the bridge. 

 Ellis informed the trooper that he had neither the vehicle 

registration nor a driver's license, and all three occupants 
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denied ownership of the vehicle. The trooper learned 

subsequently that the vehicle belonged to Ellis' wife. Because 

Ellis had no identification, the trooper took him to the police 

cruiser. Faison and Moore remained in the car. At one point, 

Ellis returned to the car, purportedly to get a cigarette. 

 Moore told the trooper that Ellis was not who he said he 

was. Upon learning that Ellis had provided a false name and 

Social Security number, the trooper determined that he would not 

release Ellis on a summons. He arrested Ellis for forgery of a 

summons and handcuffed him. 

 The trooper then asked Moore and Faison to step out of the 

vehicle. Upon questioning, Faison and Moore acknowledged that 

neither had a valid driver's license. The trooper observed that 

Faison was unable to drive because he appeared to be under the 

influence of something. 

 The trooper testified that he had "a bad feeling about" the 

situation and was "trying to stall for time" until backup 

arrived. Because Ellis was in custody and neither Moore nor 

Faison could legally operate the vehicle, the trooper told Faison 

and Moore that he would inventory the vehicle preparatory to 

having it towed and that he intended to remove them from the 

interstate pursuant to state police policy. He then frisked them 

for weapons to insure his safety while conducting the inventory 

and while transporting them off of the interstate. 

 During his frisk of Moore, the trooper detected and removed 
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from Moore's pocket an unsheathed syringe, which contained a 

clear, white liquid. When Moore denied being a diabetic, the 

trooper arrested him for possessing drug paraphernalia. The 

trooper then searched Moore incident to that arrest and 

discovered in his groin area a brown bag containing ninety-nine 

small, blue glassine bags of heroin. Each bag had a street value 

of $25 to $35. The trooper testified that normally a customer 

will buy one or two bags at a time for personal use. 

 At police headquarters, Moore voluntarily admitted trying to 

purchase heroin and accompanying Ellis, whom he knew to be a drug 

dealer, to Norfolk to obtain drugs. He stated that when they 

were stopped, Ellis told him to hide the heroin and he hid the 

bag and syringe on his person. 

 At trial, Moore testified that he knew Ellis was a drug 

dealer and knew that Ellis was going to sell the heroin. He 

testified that he was a drug user but had not sold or conspired 

to sell heroin. He testified that he hid the heroin and intended 

to keep it for his personal use. 

 II. 

 While Moore concedes the lawfulness of the traffic stop, he 

contends that the trooper had no lawful basis to frisk him for 

weapons. He argues that this frisk was unreasonable, requiring 

suppression of the evidence thereby discovered.1

 We disagree. 

 1We decline to address Moore's argument that Taylor lacked 

probable cause to search him after finding the syringe during the 

pat-down. This argument was not addressed to the trial court, and 

we will not consider it for the first time on appeal. Rule 5A:18. 
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 "On appeal, the burden is on appellant to show, considering 

the evidence in the light most favorable to the Commonwealth, 

that the denial of the motion to suppress constituted reversible 

error." Stanley v. Commonwealth, 16 Va. App. 873, 874, 433 

S.E.2d 512, 513 (1993). 

 The Fourth Amendment to the United States Constitution 

guarantees "[t]he right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable 

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

8-9 (1968). However: 

 [I]n certain circumstances, a police officer 

is entitled to conduct a limited search of a 

citizen who has been detained but not 

arrested. The search is necessary because 

police officers should not be subjected to 

danger . . . . 

Harris v. Commonwealth, 241 Va. 146, 149, 400 S.E.2d 191, 193 

(1991). See Adams v. Williams, 407 U.S. 143, 146 (1972). 

 "The touchstone of our analysis under the Fourth Amendment 

is always 'the reasonableness in all the circumstances of the 

particular governmental invasion of a citizen's personal 

security.'" Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) 

(quoting Terry, 392 U.S. at 19). As a general matter, society's 

concern for the safety of law enforcement officials when they are 

"conducting [their] duties is of paramount importance." Harris, 

241 Va. at 151, 400 S.E.2d at 194. Acknowledging that police 

officers should be protected in the performance of their duties, 
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the United States Supreme Court has held that an officer may 

conduct a reasonable search for weapons: 

 [W]here he has reason to believe that he is 

dealing with an armed and dangerous 

individual, regardless of whether he has 

probable cause to arrest the individual for a 

crime. The officer need not be absolutely 

certain that the individual is armed; the 

issue is whether a reasonably prudent man in 

the circumstances would be warranted in the 

belief that his safety or that of others was 

in danger. 

Terry, 392 U.S. at 27 (citations and footnote omitted) (emphasis 

added). See Maryland v. Wilson, 117 S. Ct. 882, 886 (1997) 

(permitting officer to order passengers out of their car during a 

traffic stop because the "danger to an officer from a traffic 

stop is likely to be greater where there are passengers in 

addition to the driver in the stopped car"); Lansdown v. 

Commonwealth, 226 Va. 204, 212, 308 S.E.2d 106, 111 (1983) ("The 

law does not expect that a police officer must gamble on turning 

away from a possible danger and chance taking a bullet in the 

back merely because of the status of a vehicle's occupants."); 

Helms v. Commonwealth, 10 Va. App. 368, 371, 392 S.E.2d 496, 497 

(1990) (exigent circumstances justifying warrantless search 

include danger to the officer). 

 In State v. Evans, 618 N.E.2d 162 (Ohio 1993), police 

officers patted down a suspect prior to placing him in their 

cruiser following the suspect's inability to produce a driver's 

license after being stopped for a traffic violation. The Supreme 

Court of Ohio held: 
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 Here, the officer's pat-down search of the 

defendant was in accordance with standard 

police procedure which dictates that 

protective measures be taken before a person 

is to be held in the back seat of a squad 

car. A determination as to the 

reasonableness of a particular police 

procedure depends "on a balance between the 

public interest and the individual's right to 

personal security free from arbitrary 

interference by law officers." United States 

v. Brignoni-Ponce, [] 422 U.S. 873, 878 

[(1975)]. Certainly, it is reasonable that 

the officer, who has a legitimate reason to 

so detain that person, is interested in 

guarding against an ambush from the rear. 

Id. at 167. The Ohio Court held that the officers' personal 

security when balanced against the driver's privacy interests, 

warranted "a brief pat-down search for weapons where the 

detaining officer has a lawful reason to detain said driver in 

the patrol car." Id. See also State v. Vasquez, 807 P.2d 520, 

522-23 (Ariz. 1991) (permitting search of defendant's jacket, 

which he wanted to take with him, where officer was going to 

drive him home from where he had been fighting with his wife); 

Byrd v. State, 458 A.2d 23, 25 (Del. 1983) (emphasizing that 

officer's intent to transport suspect in his police car to scene 

of crime justified frisk for weapons); 4 Wayne R. LaFave, Search 

and Seizure: A Treatise on the Fourth Amendment § 9.5(a), at 259 

(3d ed. 1996). 

 Moore relies on Sattler v. Commonwealth, 20 Va. App. 366, 

457 S.E.2d 398 (1995). A police officer followed Sattler onto a 

service station lot for the purpose of issuing him a summons for 

a traffic violation. Before issuing the ticket, the officer 
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permitted Sattler to fuel his car and to move it from the fuel 

pump to a parking space on the service station lot. The officer 

then instructed Sattler to have a seat in the police cruiser but 

first frisked him pursuant to the officer's personal policy to 

frisk anyone being placed in his police cruiser. We held the 

frisk unlawful, because the circumstances "failed to prove that 

the officer had specific and articulable facts upon which to 

conclude that Sattler was armed and dangerous." Id. at 369, 457 

S.E.2d at 400. 

 The circumstances in this case are quite different from 

those in Sattler. In Sattler, the stop took place on the parking 

lot of a service station that was open for business. The officer 

was not obliged to put Sattler in his cruiser or to get into his 

cruiser with Sattler. The circumstances permitted the officer, 

if he entered the cruiser with Sattler, to observe Sattler and to 

defend himself, if necessary. 

 In this case, the trooper was required to inventory the car 

preparatory to its removal from the bridge. In doing so, he was 

obliged to focus his attention on the interior of the vehicle, 

turning his back on Moore and Faison. He was further required to 

take Moore and Faison into his police cruiser to remove them from 

the bridge. In doing so, he was required to focus his attention 

and activity on driving the police cruiser. He could not observe 

Moore and Faison and was limited in his ability to defend 

himself, if necessary. 
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 The trooper's minimal initial intrusion on Moore's privacy 

was circumscribed by exigencies that justified a limited pat-down 

for weapons. The trooper was required to inventory the vehicle. 

 He could not leave Moore and Faison on a bridge with no 

sidewalks or on the interstate. Their presence might have 

endangered traffic and themselves. The trooper testified that: 

"We're not allowed to let a pedestrian walk down the roadway. We 

stop and we will either issue a summons, warn the person, arrest 

the person, and we're going to transport them off the roadway." 

 Pursuant to state police policy, the trooper conducted "a 

pat-down for our safety to insure that no weapons can be used 

against us before we transport them because we have no cages." 

The police cruiser had no barrier between the front and rear 

seats. 

Terry recognized the reasonableness of a minimal intrusion 

on personal privacy to insure the safety of an officer 

investigating, in a public place, a reasonable suspicion of 

lawbreaking. Other authorities have recognized the 

reasonableness of such intrusions to insure the safety of 

officers performing their duties under other circumstances. 

Always, the standard is reasonableness. In Sattler, we held that 

the nature of the offense and the location and circumstances of 

the encounter were insufficient to render a frisk reasonable. 

 In this case, Ellis' offense, Faison's intoxication, the 

dangerousness of the location, and the trooper's duty to 
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inventory the vehicle and to transport its occupants created a 

situation that was fraught with potential danger to the trooper, 

justifying as reasonable the minimal intrusion of frisking Moore. 
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 III. 

 Moore next contends that the evidence was insufficient to 

support his conviction for possession of heroin with the intent 

to distribute and conspiracy to do the same. He argues that he 

intended to keep the drugs for his own personal use and that the 

evidence failed to prove that he conspired with Ellis to 

distribute heroin. 

 Upon a challenge to the sufficiency of the evidence to 

support a conviction, we "must consider the evidence and all 

reasonable inferences fairly deducible therefrom in the light 

most favorable to the Commonwealth." Derr v. Commonwealth, 242 

Va. 413, 424, 410 S.E.2d 662, 668 (1991) (citation omitted). 

POSSESSION WITH INTENT TO DISTRIBUTE 

 Thus viewed, the evidence proved that Moore possessed the 

drugs with the intent to distribute. He testified that when he 

bought heroin for his use, he bought up to five bags at a time, 

usually paying $10 per bag. The trooper testified that most 

users bought one to two bags at a time. Moore possessed 

ninety-nine bags having a street value of $25 to $35 each. 

"Indeed, quantity, when greater than the supply ordinarily 

possessed by a [heroin] user for his personal use, is a 

circumstance which, standing alone, may be sufficient to support 

a finding of intent to distribute." Hunter v. Commonwealth, 213 

Va. 569, 570, 193 S.E.2d 779, 780 (1973). 

 The credibility of witnesses and the weight to be given 
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their testimony are matters exclusively for the fact finder. 

Barker v. Commonwealth, 230 Va. 370, 373, 337 S.E.2d 729, 732 

(1985). While Moore stated that he intended to keep the heroin 

for his personal use, the trial court was entitled to reject this 

assertion. See Henry v. Commonwealth, 195 Va. 281, 290, 77 

S.E.2d 863, 869 (1953). Furthermore, "[e]vidence of 

contradictory statements or false alibis by the accused is given 

much weight in cases relying upon circumstantial evidence 

. . . ." Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337 

S.E.2d 897, 901 (1985). Moore told Taylor that he placed the 

heroin in his pants. At trial, he testified, first, that he did 

not know what was in the bag that he placed in his pants, and, 

later, that "I knew what was in there." 

 Finally, Moore admitted that he knew Ellis intended to 

distribute the heroin. He stated that Ellis told him to hide the 

heroin. Thus, Moore was present and assisted Ellis by attempting 

to prevent the discovery of the heroin. His actions in hiding 

the heroin rendered him a principal in the second degree to 

Ellis' possession of heroin with the intent to distribute. See

Foster v. Commonwealth, 179 Va. 96, 99-100, 18 S.E.2d 314, 315-16 

(1942). 

 CONSPIRACY 

 The evidence also supports Moore's conviction for conspiracy 

to possess heroin with intent to distribute. "A conspiracy is 

'an agreement between two or more persons by some concerted 
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action to commit an offense.'" Brown v. Commonwealth, 3 Va. App. 

101, 107, 348 S.E.2d 408, 411 (1986). "Proof of an explicit 

agreement to distribute a controlled substance is not required; 

the agreement may be proved by circumstantial evidence . . . . In 

fact, the nature of conspiracy is such that 'it often may be 

established only by indirect and circumstantial evidence.'" 

Brown v. Commonwealth, 10 Va. App. 73, 77, 390 S.E.2d 386, 388 

(1990) (citations omitted). 

 While "[e]vidence which merely establishes aiding or 

abetting in the commission of the distribution offense will not 

suffice to prove a conspiracy . . . [t]he evidence need not show 

that . . . [the defendant] knew the entire scope or details of 

the plan of distribution." Zuniga v. Commonwealth, 7 Va. App. 

523, 529, 531, 375 S.E.2d 381, 385-86 (1988) (citation omitted). 

 An agreement between Moore and Ellis may be inferred from 

the facts and circumstances. As we have noted, determinations of 

credibility lie within the purview of the fact finder, who may 

reject a witness' testimony and base a finding of guilt upon 

contradictory statements. The fact finder may conclude that the 

defendant lied to conceal his guilt. See Black v. Commonwealth, 

222 Va. 838, 842, 284 S.E.2d 608, 610 (1981). 

 Moore knew that Ellis was a drug dealer and intended to 

distribute the heroin. In furtherance of that unlawful scheme, 

Moore accompanied Ellis to Norfolk to obtain heroin and agreed to 

hide the heroin at Ellis' direction. This evidence supports the 
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finding that Moore intended "'to further, promote and cooperate 

in'" Ellis' venture. See Zuniga, 7 Va. App. at 529, 375 S.E.2d 

at 385. 

 The judgment of the trial court is affirmed. 

 Affirmed.