COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Kelsey and McClanahan
Argued at Salem, Virginia
CARLOS TYRONE POWELL
OPINION BY
v. Record No. 1708-09-3 JUDGE D. ARTHUR KELSEY
NOVEMBER 30, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
David A. Melesco, Judge
J. Patterson Rogers, 3rd, for appellant.
Craig W. Stallard, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
The trial court convicted Carlos Tyrone Powell of possession of cocaine, possession of a
firearm while possessing cocaine, possession of a concealed weapon, and possession of
marijuana. Powell argues on appeal the court should have suppressed the evidence of his guilt
because it was obtained during an unlawful search and seizure. We disagree and affirm.
I.
When reviewing a 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) (citation
omitted), aff’d, 275 Va. 123, 654 S.E.2d 910 (2008). This standard requires us to “give due
weight to inferences drawn from those facts by resident judges and local law enforcement
officers.” Malbrough v. Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 3 (2008) (citation
omitted). In doing so, we “consider facts presented both at the suppression hearing and at trial.”
Testa v. Commonwealth, 55 Va. App. 275, 279, 685 S.E.2d 213, 215 (2009) (citation omitted).
One evening in 2008, a police officer with the Danville Police Department conducted
surveillance of a suspected drug distribution hub at a home on Twin Oaks Lane in Danville. At
the time, the officer had eleven years of law enforcement experience and had conducted over
fifty investigations involving crack cocaine. The officer testified the home was a known “drug
house” and he had received “numerous intelligence” reports that drug sales were ongoing. The
officer had also participated in three prior warrant searches of the home for distribution of
cocaine. Cocaine was seized during two of those searches.
Powell drove a vehicle out of the driveway of the drug house, almost hitting the officer’s
unmarked vehicle in the process, and sped away. The officer followed. Powell exceeded eighty
miles per hour, apparently unaware an unmarked police car was following him.
Powell pulled over to the side of the road in an area near some dumpsters. About ten
seconds later, another vehicle pulled alongside Powell’s. Both open driver-side windows faced
each other. Watching through binoculars, the officer saw Powell and the driver of the other
vehicle engage in a hand-to-hand transaction. The officer testified he saw Powell give the other
driver a small item that the officer, based upon his training and experience, believed to be
consistent with “a dime or twenty rock” of cocaine.
Immediately afterwards Powell made a “wiping motion with his thumb across the other
fingers” that the officer interpreted to be an effort to wipe off “the crumbs of crack cocaine
which is a real tacky.” The other vehicle left. The officer testified the two vehicles were
adjacent to each other for thirty seconds “at the most.”
With the assistance of a marked patrol car, the officer stopped Powell’s vehicle just
moments after he left the dumpster area. The officer arrested Powell and searched both his
person and his vehicle. On Powell, the officer found marijuana and $478 in cash. In Powell’s
-2-
vehicle, the officer found a .45 caliber handgun, a bag of crack cocaine, a digital scale, and
smaller plastic baggies used for packaging. Powell was the only occupant of the vehicle.
Prior to trial, Powell moved to suppress this incriminating evidence arguing the officer
lacked probable cause to arrest him and search the vehicle. The trial court denied the motion,
conducted a bench trial, and found Powell guilty on all charges.
II.
On appeal, Powell asserts the officer did not have probable cause to arrest or search him.
Powell also claims the officer unlawfully searched his vehicle. We disagree with both assertions.
As we recently observed, the “very phrase ‘probable cause’ confirms that the Fourth
Amendment does not demand all possible precision.” Joyce v. Commonwealth, 56 Va. App.
646, 658, 696 S.E.2d 237, 243 (2010) (quoting Herring v. United States, 129 S. Ct. 695, 699
(2009)). Courts employ a “common sense approach” not a “hypertechnical, rigid, and legalistic
analysis” when reviewing probable cause determinations. Derr v. Commonwealth, 242 Va. 413,
421, 410 S.E.2d 662, 666 (1991). The standard is not calibrated to “deal with hard certainties,
but with probabilities.” Slayton v. Commonwealth, 41 Va. App. 101, 106, 582 S.E.2d 448, 450
(2003) (citation omitted). Nor does it “demand any showing that such a belief be correct or more
likely true than false.” Joyce, 56 Va. App. at 659, 696 S.E.2d at 243 (quoting Slayton, 41
Va. App. at 106, 582 S.E.2d at 450).
Consequently, “[f]inely tuned standards such as proof beyond a reasonable doubt or by a
preponderance of the evidence, useful in formal trials, have no place in the probable-cause
decision.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citation and internal brackets
omitted). Not even a “prima facie showing” of criminality is required. Joyce, 56 Va. App. at
659, 696 S.E.2d at 243 (quoting Illinois v. Gates, 462 U.S. 213, 235 (1983)). Instead, probable
cause “requires only a probability or substantial chance of criminal activity, not an actual
-3-
showing of such activity.” Gates, 462 U.S. at 243 n.13 (emphasis added). “The Constitution,”
after all, “does not guarantee that only the guilty will be arrested.” Joyce, 56 Va. App. at 659,
696 S.E.2d at 243 (quoting Baker v. McCollan, 443 U.S. 137, 145 (1979)).
“The substance of all the definitions of probable cause is a reasonable ground for belief
of guilt. And this means less than evidence which would justify condemnation or conviction.”
Id. (quoting Slayton, 41 Va. App. at 107, 582 S.E.2d at 451). “In other words, even though
probable cause means more than a ‘mere suspicion,’ it is not necessary for the facts to be
‘sufficient to convict’ the accused of the offense.” Id. at 660, 696 S.E.2d at 243. “Unlike a
factfinder at trial,” therefore, “reasonable law officers need not resolve every doubt about a
suspect’s guilt before probable cause is established.” Id. (internal quotation marks omitted).
Consistent with these principles, probable cause supported the officer’s decision to arrest
Powell for a suspected drug offense. Powell left a known “drug house” — where the officer had
previously conducted multiple warrant searches yielding drugs, and where “numerous
intelligence” reports had confirmed ongoing drug activity — and raced to an obviously
prearranged meeting with another vehicle on the side of the road by a dumpster.
Powell and the driver of the other vehicle engaged in a hand-to-hand transaction which
the officer believed to be consistent with “a dime or twenty rock” of cocaine. The officer then
saw Powell make a “wiping motion with his thumb across the other fingers” that the officer
interpreted as an effort to wipe off “the crumbs of crack cocaine which is a real tacky.” The
vehicles were together no more than thirty seconds. In their totality, these facts demonstrate the
officer had probable cause to believe he had just witnessed a drug transaction, and thus, had the
authority to arrest Powell and search him incident to that arrest.
Powell argues Ross v. Commonwealth, 35 Va. App. 103, 542 S.E.2d 819 (2001),
precludes a finding of probable cause under the circumstances of this case. We disagree. In
-4-
Ross, a deputy sheriff saw what he believed to be a hand-to-hand drug transaction in a high-
crime area. He did not observe the drugs directly, but saw what appeared to be an exchange of
money for an unknown item in a plastic bag. We held the officer had probable cause to arrest
and search Ross because the exchange took place in a high-crime area, the encounter was very
brief, and money and plastic bags (with items in them) are often exchanged during drug
transactions. Id. at 107-08, 542 S.E.2d at 821.
“Standing alone,” Ross explained, the mere exchange of an unknown item for money
would not by itself be a fact justifying probable cause to arrest for a drug transaction. Id. at 107,
542 S.E.2d at 821. Clarifying the point further, Ross cited with approval various cases in which
such an exchange coupled with additional circumstances established probable cause to arrest.
These examples included cases where an officer saw “a corner of a plastic baggie” which the
defendant later “attempted to hide” from the officer;1 or saw a “glassine envelope” often used to
package heroin; 2 or witnessed an individual in a “known drug area” after being signaled by a
person in a parked car “put his head and one hand in the vehicle for a few seconds” and make an
exchange of unknown objects; 3 or saw an individual in a “drug-prone area” conduct a hand-to-
hand exchange and then “hide a plastic bag immediately after the exchange.” 4
Ross also made clear the “fact that [the officer] did not see and could not identify the
item that Ross removed from the baggie does not preclude a finding of probable cause under
these circumstances.” Id. at 108, 542 S.E.2d at 821. This was true even though the officer “had
no drug training and had never served on a drug task force” and had made only six drug-related
arrests in his five-and-a-half-year career as a police officer. Id. at 109, 542 S.E.2d at 822.
1
Ross, 35 Va. App. at 108, 542 S.E.2d at 821 (citing In re J.D.R., 637 A.2d 849 (D.C.
1994)).
2
Id. (citing People v. McRay, 416 N.E.2d 1015, 1018-20 (N.Y. 1980)).
3
Id. (citing State v. Martin, 956 P.2d 956, 958-59 (Or. 1998)).
4
Id. (citing People v. Jones, 683 N.E.2d 14, 15 (N.Y. 1997)).
-5-
For these reasons, Ross fully supports the conclusion that the officer in this case had
probable cause to believe Powell had engaged in a hand-to-hand drug transaction — thus
authorizing the officer to arrest Powell. See generally Atwater v. Lago Vista, 532 U.S. 318, 354
(2001) (recognizing the Fourth Amendment permits a warrantless arrest of a suspect who has
committed a criminal offense in the officer’s presence). It necessarily follows the officer also
had authority “to search the suspect in order to safeguard evidence and ensure [his] own safety.”
Virginia v. Moore, 553 U.S. 164, 178 (2008), rev’g, 272 Va. 717, 636 S.E.2d 395 (2006).
Because a legally justifiable arrest is itself a “reasonable intrusion under the Fourth
Amendment,” any contemporaneous “search incident to the arrest requires no additional
justification.” Joyce, 56 Va. App. at 657, 696 S.E.2d at 242 (citation omitted). 5
The officer’s search authority also extended to Powell’s vehicle. In Arizona v. Gant, 129
S. Ct. 1710, 1719 (2009), the United States Supreme Court held a vehicle can be searched when
it is “reasonable to believe evidence relevant to the crime of arrest might be found in the
vehicle.” See generally Armstead v. Commonwealth, 56 Va. App. 569, 576, 695 S.E.2d 561,
564 (2010). As the Court of Appeals for the District of Columbia Circuit has explained:
Presumably, the “reasonable to believe” standard requires less than
probable cause, because otherwise Gant’s evidentiary rationale
would merely duplicate the “automobile exception,” which the
Court specifically identified as a distinct exception to the warrant
requirement. Rather, the “reasonable to believe” standard probably
is akin to the “reasonable suspicion” standard required to justify a
Terry search. Accordingly, the officer’s assessment of the
likelihood that there will be relevant evidence inside the car must
be based on more than “a mere hunch,” but “falls considerably
5
Powell points out on brief the officer advised him he was under arrest after searching
his person and finding the marijuana. That fact is immaterial. When “the formal arrest follows
quickly on the heels of the challenged search, it is not particularly important that the search
preceded the arrest rather than vice versa, so long as probable cause existed at the time of the
search.” Joyce, 56 Va. App. at 657, 696 S.E.2d at 242 (citation, internal quotation marks, and
emphasis omitted).
-6-
short of needing to satisfy a preponderance of the evidence
standard.”
United States v. Vinton, 594 F.3d 14, 25 (D.C. Cir. 2010) (brackets and internal citations
omitted) (relying in part on United States v. Arvizu, 534 U.S. 266, 274 (2002)). 6
Applying Gant, we hold it was reasonable for the arresting officer to believe Powell’s
vehicle contained evidence related to the suspected drug transaction. 7 The trial court, therefore,
did not err in denying Powell’s motion to suppress the evidence found in his vehicle, including a
.45 caliber handgun, bag of crack cocaine, digital scale, and plastic baggies.
III.
The trial court correctly denied Powell’s motion to suppress. We thus affirm his
convictions for possession of cocaine, possession of a firearm while in possession of cocaine,
possession of a concealed weapon, and possession of marijuana.
Affirmed.
6
See also Perez v. People, 231 P.3d 957, 961 (Colo. 2010); People v. McCarty, 229 P.3d
1041, 1046 (Colo. 2010); People v. Chamberlain, 229 P.3d 1054, 1057 (Colo. 2010).
7
Given our holding, we need not address whether Powell was “within reach of the
passenger compartment of the vehicle,” Armstead, 56 Va. App. at 576, 695 S.E.2d at 564 (citing
Gant, 129 S. Ct. at 1719), at the time of the vehicle search. Nor do we need to determine if the
search fit within the automobile exception to the warrant requirement. See id. at 576 n.4, 695
S.E.2d at 564 n.4 (noting Gant expressly left “untouched” the automobile exception permitting
vehicle searches supported by probable cause).
-7-