Jesse Jerome Hendren v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia
JESSE JEROME HENDREN
MEMORANDUM OPINION* BY
v. 	Record No. 1961-99-2 	JUDGE MARVIN F. COLE
AUGUST 1, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Tracy L. Quackenbush, Assistant Public
Defender, for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Jesse Jerome Hendren, appellant, was convicted in a bench
trial of possession of cocaine, obstruction of justice and driving
without an operator's license. 	On appeal, appellant contends the
trial judge erred by denying his motion to suppress. 	We disagree
and affirm.
BACKGROUND
On September 27, 1998, appellant approached a traffic
checking detail on Sinai Road in Halifax County. 	Deputy Sheriff
Steve Moore testified that appellant "pulled up to the checking
detail" but "wouldn't stop at first." 	Moore "had to instruct

[appellant] two or three times to stop the car." 	When Moore asked
for appellant's driver's license, appellant "said he did not have
it with him at the time." 	Moore then "asked [appellant] to pull
over to the side of the road, so he wouldn't block the traffic
that was coming through." 	Appellant's car contained three
passengers. 	Moore asked appellant to step out of the car and
again inquired about appellant's driver's license. 	"When
[appellant] got out of the car, he had his right hand closed[,]
. . . [and h]e was trying to hide his hand from [Moore]." 	Moore
asked appellant to keep his hands where Moore could see them, but
appellant "kept moving his hand around." 	Moore testified as
follows:
He moved his hand around behind his leg,
trying to hide it from me. 	Again, I told
him to open his right hand and keep it where
I could see it. 	He tried to stick his hand
in his pocket, and when he tried to put his
hand in his pocket, [Moore and another
officer] grabbed him.
Appellant's "hand still wouldn't open." 	A struggle ensued,
and the officers placed appellant on the ground. 	After subduing
appellant, the officers "turned him over on his left side and
found . . . what appeared to be crack cocaine up under him."
At the March 10, 1999 hearing on appellant's motion to
suppress, appellant argued that he was unlawfully seized and
searched based solely on a traffic stop. 	According to
appellant, "there was no probable cause" or "reasonable
suspicion to believe he had done anything criminal." 	He argued
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that "having a closed hand does not indicate he had a weapon,
and it doesn't indicate criminal activity."
ANALYSIS
The Law
Once a vehicle has been lawfully stopped, an officer is
authorized to "take necessary measures to determine whether the
person is in fact carrying a weapon and to neutralize the threat
of physical harm." 	Terry v. Ohio, 392 U.S. 1, 24 (1968). 	Such
measures may include a pat-down search for weapons. 	See id. at
27. 	The question is would "the facts available to the officer
at the moment of the seizure or the search 'warrant a man of
reasonable caution in the belief' that the action taken was
appropriate?" 	Id. at 21-22.
The purpose of this limited [protective]
search is not to discover evidence of crime,
but to allow the officer to pursue his
investigation without fear of violence
. . . . 	So long as the officer is entitled
to make a forcible stop, and has reason to
believe that the suspect is armed and
dangerous, he may conduct a weapons search
limited in scope to his protective purpose.
Adams v. Williams, 407 U.S. 143, 146 (1972) (discussing Terry).
In determining the reasonableness of a search, a court must
balance "'the need to search [or seize] against the invasion
which the search [or seizure] entails.'" 	Terry, 392 U.S. at 21
(quoting Camara v. Municipal Court, 387 U.S. 523, 536-37
(1967)). 	In Terry, the Supreme Court explained:
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[T]here is the more immediate interest of
the police officer in taking steps to assure
himself that the person with whom he is
dealing is not armed with a weapon that
could unexpectedly and fatally be used
against him. 	Certainly it would be
unreasonable to require that police officers
take unnecessary risks in the performance of
their duties. 	American criminals have a
long tradition of armed violence, and every
year in this country many law enforcement
officers are killed in the line of duty, and
thousands more are wounded. 	Virtually all
of these deaths and a substantial portion of
the injuries are inflicted with guns and
knives.
In view of these facts, we cannot blind
ourselves to the need for law enforcement
officers to protect themselves and other
prospective victims of violence in
situations where they may lack probable
cause for an arrest. 	When an officer is
justified in believing that the individual
whose suspicious behavior he is
investigating at close range is armed and
presently dangerous to the officer or
others, it would appear to be clearly
unreasonable to deny the officer the power
to take necessary measures to determine
whether the person is in fact carrying a
weapon and to neutralize the threat of
physical harm.
Id. at 23-24.
A search for weapons in the absence of
probable cause to arrest, however, must,
like any other search, be strictly
circumscribed by the exigencies which
justify its initiation. 	Thus, it must be
limited to that which might be used to harm
the officer or others nearby, and may
realistically be characterized as something
less than a "full" search, even though it
remains a serious intrusion.
Id. at 25-26.
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"The officer need not be absolutely certain that the
individual is armed; the [ultimate] 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."
Id. at 27. 	"The validity of a seizure '"turns on an objective
assessment of the officer's actions in light of the facts and
circumstances confronting him at the time," and not on the
officer's actual state of mind at the time the challenged action
was taken.'" 	Welshman v. Commonwealth, 28 Va. App. 20, 30, 502
S.E.2d 122, 127 (1998) (en banc) (citations omitted). 	Moreover,
"[a]n officer is entitled to view the circumstances confronting
him in light of his training and experience, and he may consider
any suspicious conduct of the suspected person." 	James v.
Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92 (1996).
If, under Terry, a police officer is
justified in conducting a protective weapons
search based upon the officer's reasonable
belief that a suspect may be armed and
dangerous, such a weapons search would
necessarily include the right to search a
clenched fist. 	Common sense would not
dictate otherwise. 	Weapons are normally
held in one's hands. 	Hence, a search for
weapons in a suspect's hands is reasonable
under such circumstances. 	Otherwise, a
suspect could avoid the detection of a
weapon by simply hiding it in his hand,
where it remains ready for use.
State v. Williams, 544 N.W.2d 350, 353 (Neb. 1996).
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Application
Appellant does not contest the validity of the traffic
checkpoint or the validity of his stop. 	Instead, he argues
that: 	(1) the officers' actions in grabbing his hand when he
thrust it into his pocket "[were] not proper as a search
incident to the traffic violation"; and (2) his "behavior did
not otherwise justify the search."
When appellant approached the traffic checkpoint, he
initially refused to stop his car. 	It was not until the officer
instructed appellant two or three times to stop that he did so.
Upon further investigation, the officer learned that appellant
did not have in his possession a driver's license. 	Appellant's
reluctance to stop the car and failure to possess a driver's
license properly aroused the officer's suspicion and supported
Officer Moore's decision to have appellant pull over so he could
investigate the situation. 	Under those circumstances, Moore did
not know whether appellant possessed a valid license.1
Appellant's car contained three passengers. 	When appellant
exited his car, he kept his right hand closed and tried to hide
1 By not having a driver's license in his possession when he
was stopped, appellant was in violation of Code § 46.2-104,
failure to carry a driver's license, a traffic infraction
punishable by a fine. 	At the time of the incident, Moore also
had to consider, inter alia, whether appellant had a valid
driver's license, see Code § 46.2-300, whether he was driving on
a suspended or revoked license, see Code § 46.2-301, or whether
he was driving after having been declared a habitual offender,
see Code § 46.2-357.
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it. 	At this point, the police had observed three highly
suspicious circumstances warranting further investigation.
Appellant refused Moore's order to open his hand and attempted
to place his hand into his pants pocket, causing the officers to
grab his hand.
In light of the facts and circumstances confronting the
officers at the time, including appellant's suspicious conduct,
see James, 22 Va. App. at 745, 473 S.E.2d at 92, the officers
were justified in seizing appellant's hand. 	We find the
circumstances under which the police encountered appellant,
namely, appellant's escalating suspicious behavior during a
valid traffic stop, "'warrant[ed] a man of reasonable caution in
the belief' that the action taken was appropriate[.]" 	Terry,
392 U.S. at 21. 	In other words, we hold that "a reasonably
prudent man in the circumstances would be warranted in the
belief that his safety or that of others was in danger." 	Id. at
27; see also United States v. Hensley, 469 U.S. 221, 235 (1985)
(after officers validly stopped suspect pursuant to Terry, "they
were authorized to take such steps as were reasonably necessary
to protect their personal safety and to maintain the status quo
during the course of the stop"); People v. Shackelford, 546 P.2d
964, 967 (Colo. Ct. App. 1976) (during valid Terry stop,
defendant kept his hand closed and refused to open it; officers
forced it open and found stolen credit cards; upholding search
"prompted by the defendant's suspicious and unusual movements in
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response to the confrontation"); State v. Bridges, 610 So. 2d
827, 828-29 (La. Ct. App. 1992) (holding that officers were
justified in forcing open defendant's clenched fist during Terry
stop); Worthey v. State, 805 S.W.2d 435, 437, 439 (Tex. Crim.
App. 1991) (upholding search of purse where, during Terry stop,
defendant disobeyed officer's order not to move or hide her
hands); Manry v. State, 621 S.W.2d 619, 622-23 (Tex. Crim. App.
1981) (defendant's "unusual behavior" when stopped justified
weapons search); Welshman, 28 Va. App. at 34, 502 S.E.2d at 129
(approving frisk for weapons; holding that police officer may
preserve the status quo by ordering detainee to place his hands
where officer can see them).
Therefore, the trial judge did not err in denying
appellant's motion to suppress the evidence. 	Accordingly, we
affirm.
Affirmed.
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