COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Humphreys
Argued at Richmond, Virginia
BRIAN LAMONT KING
MEMORANDUM OPINION * BY
v. Record No. 0513-11-2 CHIEF JUDGE WALTER S. FELTON, JR.
MAY 8, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Richard D. Taylor, Jr., Judge
Catherine French, Supervising Assistant Public Defender (Office of
the Public Defender, on brief), for appellant.
John W. Blanton, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Following the denial of his motion to suppress by the Circuit Court of the City of Richmond
(“trial court”), Brian Lamont King (“appellant”) entered a conditional guilty plea and was convicted
of possession of cocaine with the intent to distribute in violation of Code § 18.2-248. On appeal,
appellant contends that the trial court erred in denying his motion to suppress, arguing that the
officer had neither reasonable articulable suspicion of criminal activity to detain him nor probable
cause to search him. For the following reasons, we affirm the judgment of the trial court.
I. BACKGROUND
When reviewing the “denial of a suppression motion, we review the evidence ‘in the light
most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.’” Glenn v.
Commonwealth, 49 Va. App. 413, 416, 642 S.E.2d 282, 283 (2007) (en banc) (quoting Kyer v.
Commonwealth, 45 Va. App. 473, 477, 612 S.E.2d 213, 215 (2005) (en banc)), aff’d, 275 Va. 123,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
654 S.E.2d 910 (2008). So viewed, the evidence showed that around 7:30 p.m. on November 6,
2009, Richmond City Police Officers Custer and Ferguson observed a parked car containing four
occupants in an area known for a high incidence of criminal and illegal drug activity. 1 As they
drove their police cruiser past the parked car, all four occupants “sat back” and “slouched down”
in their seats. Officer Custer recognized one of the men in the car, Long, who was in the rear
passenger seat. Officer Custer knew Long from frequent contacts in the past. The officers turned
their cruiser around and stopped behind the parked car. When Officer Custer approached the car
to speak with the occupants, he noticed appellant, who was in the front passenger seat, “turn his
body away from [Officer Custer] as he was sitting in the seat and make a stuffing motion with his
right hand inside of his mouth.” Based on his training and experience, Officer Custer suspected that
appellant was “trying to swallow drugs or conceal drugs in [his] mouth.” Officer Custer testified
that, at the time, he thought it was “very suspicious especially the way [appellant] did it. It wasn’t
as if he was just throwing a chip in his mouth or chewing a piece of gum. It was him turning and
stuffing as if he was trying to conceal himself and stuff the item into his mouth.”
After appellant stepped out of the car, Officer Custer performed a protective pat down of
appellant’s outer clothing for weapons. He then asked appellant what he had in his mouth. In a
muffled tone, appellant denied having anything in his mouth. However, Officer Custer testified that
he saw “a large bulge in [the] left side of [appellant’s] cheek.” Officer Custer asked appellant to
open his mouth. When appellant opened his mouth, Officer Custer “observed a clear plastic baggy,
which appeared to contain an off-white, rock-like substance, which [he] believed to be crack
1
Officer Custer, who had been employed by the Richmond Police Department for three
years at the time of his encounter with the car at issue, estimated between fifty and seventy-five
drug arrests had been made in the “general area” of that particular block during “[his] time as an
officer in that area.”
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cocaine.” After Officer Custer told appellant numerous times to spit out whatever was in his mouth,
appellant eventually did so. Appellant was then arrested for possession of cocaine. 2
Prior to trial, appellant asked the trial court to suppress the evidence of the cocaine that he
spit from his mouth, arguing that Officer Custer unlawfully searched his mouth without probable
cause to believe that contraband was within. The trial court denied appellant’s motion to suppress
that evidence, stating:
that once the officer approaches the car and this particular defendant
turns his body away and makes that [stuffing] motion, that on the
basis of this officer’s training and experience and his belief that this
individual may be concealing drugs, what the officer did was
appropriate.
Moreover, when the officer talks to this defendant and his
voice is muffled and the officer sees what he believes to be a bag in
his mouth that the action taken by the officer was appropriate.
II. ANALYSIS
On appeal, appellant contends that the trial court erred in denying his motion to suppress,
arguing that the officer lacked reasonable articulable suspicion of criminal activity to detain him and
probable cause to search him. Based on our review of the record on appeal, we conclude that the
trial court did not err in denying appellant’s motion to suppress the cocaine.
A. Standard of Review
The trial court’s findings of historical fact are binding on appeal “unless ‘plainly
wrong.’” McGee v. Commonwealth, 25 Va. App. 193, 198 & n.1, 487 S.E.2d 259, 261 & n.1
(1997) (en banc). However, we review de novo the trial court’s application of defined legal
standards to the particular facts of a case. Ornelas v. United States, 517 U.S. 690, 697 (1996).
2
Although not relevant to the correctness of the ruling on the motion to suppress, the
certificate of analysis of the contents of the baggy that appellant spit from his mouth reported that
the baggy contained 3.769 grams of cocaine.
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B. Reasonable Articulable Suspicion
“The Fourth Amendment protects ‘persons’ from ‘unreasonable searches and seizures.’”
Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) (quoting U.S. Const.
amend. IV).
Whether the Fourth Amendment has been violated is a
question to be determined from all the circumstances. Review of
the existence of probable cause or reasonable suspicion involves
application of an objective rather than a subjective standard.
Under well-settled principles of law, police officers may
stop a person for the purpose of investigating possible criminal
behavior even though no probable cause exists for an arrest. A
stop is permissible so long as the officer has reasonable, articulable
suspicion that criminal activity may be afoot.
McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 515-16 (2008) (citations
omitted).
When, as occurred here, an officer conducts an investigatory stop, the officer “must have
‘a reasonable suspicion, based on objective facts, that the [person] is involved in criminal
activity.’” Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722 (1997) (alteration in
original) (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)). “Reasonable suspicion is something
‘more than an inchoate and unparticularized suspicion or hunch of criminal activity.’ However,
it is something less than probable cause.” Jackson, 267 Va. at 673, 594 S.E.2d at 598 (quoting
Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). It “requires only ‘some minimal level of
objective justification’ for making such a stop.” Branham v. Commonwealth, 283 Va. 273, 280,
720 S.E.2d 74, 78 (2012) (quoting I.N.S. v. Delgado, 466 U.S. 210, 217 (1984)). “Whether an
officer has a reasonable suspicion to justify such a detention is ‘based on an assessment of the
totality of the circumstances.’” Id. (quoting Harris v. Commonwealth, 276 Va. 689, 695, 668
S.E.2d 141, 145 (2008)). A police officer may “‘draw on [his] own experience and specialized
training to make inferences from and deductions about the cumulative information available to
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[him] that might well elude an untrained person.’” Id. (quoting United States v. Arvizu, 534 U.S.
266, 273 (2002)).
C. Probable Cause
“‘[P]robable cause exists when there is a fair probability that contraband or evidence of a
crime will be found in a particular place.’” Jones v. Commonwealth, 277 Va. 171, 178, 670
S.E.2d 727, 731 (2009) (alteration in original) (quoting United States v. Grubbs, 547 U.S. 90, 95
(2006)).
“Probable cause, as the very name implies, deals with probabilities.
These are not technical; they are the factual and practical
considerations in every day life on which reasonable and prudent
men, not legal technicians, act. Probable cause exists when the
facts and circumstances within the arresting officer’s knowledge
and of which he has reasonable trustworthy information are
sufficient in themselves to warrant a man of reasonable caution in
the belief that an offense had been or is being committed.”
Derr v. Commonwealth, 242 Va. 413, 421, 410, S.E.2d 662, 666 (1991) (quoting Saunders v.
Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977)).
“[T]he determination whether a law enforcement officer had sufficient probable cause to
seize contraband from a person in the course of a Terry [v. Ohio, 392 U.S. 1 (1968),] pat-down
search requires a consideration of the totality of the circumstances surrounding the search, as
well as a consideration of the officer’s knowledge, training and experience.” Cost v.
Commonwealth, 275 Va. 246, 251, 657 S.E.2d 505, 507 (2008); see Harris v. Commonwealth,
241 Va. 146, 149, 400 S.E.2d 191, 193 (1991) (in determining whether the officer has reasonable
articulable suspicion, “‘due weight must be given . . . to the specific reasonable inferences which
he is entitled to draw from the facts in light of his experience’” (quoting Terry, 392 U.S. at 27));
Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976) (in determining whether
probable cause exists, we focus on “what the totality of the circumstances meant to police
officers trained in analyzing the observed conduct for purposes of crime control”).
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“When an officer has probable cause to arrest a person, the officer may search the person,
particularly where the evidence is of a highly evanescent nature.” Buck v. Commonwealth, 20
Va. App. 298, 304, 456 S.E.2d 534, 537 (1995); see Williams v. Commonwealth, 21 Va. App.
263, 463 S.E.2d 679 (1995) (holding search of Williams prior to formal arrest permissible where
officers had probable cause to believe Williams possessed illegal narcotics).
D. Analysis
Here, considering the totality of the circumstances, the facts were sufficient to establish
both reasonable suspicion for appellant’s detention at the time appellant was removed from the
car and probable cause to search him when Officer Custer ordered him to open his mouth.
When the officers first encountered appellant and his companions, they were patrolling a
high crime, high drug area after dark. Officer Custer testified he knew that fifty to seventy-five
prior drug arrests had occurred in the area of that particular block. As he and Officer Ferguson
drove by, Custer observed that the car’s four occupants “sat back” and “slouched down” in their
seats. He also observed someone he recognized from numerous prior encounters, Long, in the
rear passenger seat “wiping his face with his hand.” Officer Custer approached the group on foot
and engaged in a consensual encounter during which he asked Long, in a “[f]riendly tone,” “hey,
what are you guys doing[?]” A second or two after Long responded, “[N]othing[,] we are just
chillin’,” Officer Custer observed appellant “turn his body away from [Custer] as he was sitting
in the seat and make a stuffing motion with his right hand inside of his mouth.” “It wasn’t as if
he was just throwing a chip in his mouth or chewing a piece of gum. It was him turning and
stuffing as if he was trying to conceal himself and stuff the item into his mouth.” Officer Custer
said he had encountered “this kind of behavior before,” “approximately three to five times,” and
that in his experience, “[u]sually it’s a sign of somebody trying to swallow drugs or conceal
drugs in their mouth.” The totality of the circumstances, viewed in light of Officer Custer’s
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experience, were sufficient to provide him with reasonable suspicion to believe criminal activity
was afoot and that appellant was involved in it. Thus, the trial court properly concluded the
subsequent detention of appellant was reasonable under the Fourth Amendment.
Officer Custer’s investigation served to confirm rather than dispel the suspicions which
gave rise to his decision to detain appellant, and he developed probable cause to search.
Although he detected nothing suspicious in his frisk of appellant’s person and clothing, he noted
an obvious bulge in appellant’s cheek. When he asked appellant about the bulge, appellant
responded, in a muffled voice, that “he didn’t have anything and he didn’t know what [Officer
Custer] was talking about.” From Officer Custer’s training and experience, he was aware that
individuals often hide illegal drugs in their mouths making it easier to swallow the contraband, if
necessary, to avoid detection. Officer Custer also explained to the trial court that it could be fatal
for a person to swallow the large amount of narcotics found in appellant’s mouth. Appellant’s
obvious lie about not having anything in his mouth—in conjunction with Officer Custer’s
knowledge of the area, his other observations of appellant’s behavior, and his personal
experience that drug possessors often attempt to hide drugs from police in their mouths—gave
him probable cause to order appellant to open his mouth.
Other states considering similar cases have upheld police officers’ authority to conduct a
warrantless search of a defendant’s mouth in the exigent circumstances presented here, where
there was a likely destruction of evidence and potential harm to an individual ingesting large
amounts of drugs concealed in that person’s mouth.
“When illegal drugs are ingested to conceal them from law
enforcement, a reasonable police officer cannot know, for certain,
the method of packaging the drug. As a result, it is not
unreasonable to assume the drug might not be securely packaged
so as to avoid its dissipation in the ingester’s system, with resulting
probable toxic effects. Therefore, . . . it is precisely because the
police did not know how the heroin was packaged that exigent
circumstances justified a warrantless search and seizure. The
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exigencies in this case included both possible destruction of
evidence and potential harm to defendant.”
State v. Alverez, 111 P.3d 808, 815-16 (Utah Ct. App. 2005) (quoting State v. Hodson, 866 P.2d
556, 561 (Utah Ct. App. 1993), rev’d on other grounds, 907 P.2d 1155 (Utah 1995)), aff’d, 2006
Utah LEXIS 196 (Utah 2006); accord State v. Holton, 975 P.2d 789 (Idaho 1999); State v.
Harris, 505 N.W.2d 724 (Neb. 1993); State v. Lomack, 545 N.W.2d 455 (Neb. Ct. App. 1996);
State v. Moore, 734 N.E.2d 804 (Ohio 2000); State v. Taplin, 676 P.2d 504, 505-06 (Wash. Ct.
App. 1984). Based on the record before us on appeal, we conclude that the trial court did not err
in finding that Officer Custer’s warrantless search of appellant’s mouth did not violate the Fourth
Amendment.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court denying appellant’s
motion to suppress the cocaine and affirm his conviction of possession of cocaine with intent to
distribute.
Affirmed.
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Brian Lamont King v. Commonwealth of Virginia
Combined Opinion