COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Beales and Powell
Argued at Alexandria, Virginia
JAMES EDWARD PERRY
OPINION BY
v. Record No. 0945-08-4 JUDGE RANDOLPH A. BEALES
NOVEMBER 3, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N.A. Kendrick, Judge 1
Charles Burnham, Assistant Public Defender (Office of the Public
Defender, on briefs), for appellant.
John W. Blanton, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellee.
A jury convicted James Edward Perry (appellant) of possession of phencyclidine (PCP)
pursuant to Code § 18.2-250 and fined him $2,500. On appeal, appellant argues that the trial court
erred when it denied his motion to suppress the drugs found by the police during a search of his
person. Specifically, appellant contends that the trooper who searched him did not have a
reasonable suspicion that he was armed and dangerous, and, therefore, the trooper’s actions violated
the Fourth Amendment principles as established in Terry v. Ohio, 392 U.S. 1 (1968). Alternatively,
he also contends that, even if the pat-down search for weapons was valid, the trooper exceeded the
scope of such a search as established in Terry. Finally, appellant contends that his eventual consent
to the removal of a vial from his pocket did not cure the trooper’s violations of the principles in
1
Judge Kendrick presided over the trial and sentencing of appellant. Judge William T.
Newman, Jr., presided over the suppression hearing and denied appellant’s motion to suppress.
Terry, and, therefore, the vial was still not admissible into evidence. We find that the trial court did
not err in denying appellant’s motion to suppress, and, therefore, we affirm his conviction.
BACKGROUND
At 2:00 a.m. on October 15, 2006, Trooper Weidhaas was traveling down Interstate 66 in
Arlington County. As he drove along, the trooper spotted a silver car parked on the right
shoulder of the interstate, in a well-lit area. Trooper Weidhaas pulled over, parked behind the
silver car, and got out of his patrol vehicle.
As Trooper Weidhaas walked toward the car, he noticed that the windows and the
sunroof of the silver car were open. Before he reached the car, the trooper “detected a strong
odor of marijuana coming from” the car. Based on this smell of drugs, the officer stated that he
became concerned that the passengers might have guns.
Three men were in the silver car – appellant sat in the back seat, Maurice Sprurgeon
(Sprurgeon) sat in the front passenger seat, and Valdemere Perry (Valdemere) sat in the driver’s
seat. Trooper Weidhaas approached Valdemere first and asked for his information. Upon
checking his driving record, the trooper discovered that Valdemere’s license was suspended.
The trooper then began checking to see if any of the passengers could legally drive the car.
Around this time, at least one other trooper arrived at the scene and took control of Valdemere.
Trooper Weidhaas then turned his attention to Sprurgeon. Sprurgeon was not “very
coherent” and “looked visibly impaired.” His reactions were slow and unsteady, and he was
non-responsive. Trooper Weidhaas thought Sprurgeon might be under the influence of
marijuana or PCP. Based on his training and experience, the trooper believed that persons under
the influence of PCP were inclined to suddenly attack and to ignore pain, such that they will
ignore any officer’s attempts to restrain them. If Sprurgeon was under the influence of PCP, then
the trooper was concerned that he presented a significant danger to the officers.
-2-
Trooper Weidhaas asked Sprurgeon to step out of the car, and, as he did so, Sprurgeon
dropped a small vial onto the ground by the car. The vial’s cap came off, and the trooper could
see a dark green plant material inside the vial that looked like marijuana. The trooper thought
the marijuana was treated with something like PCP.
The trooper arrested Sprurgeon and read his Miranda rights to him. Trooper Weidhaas
testified at the suppression hearing that Sprurgeon then admitted that he had smoked PCP that
evening. The trooper did a field test of the substance in the vial, and it tested positive for
marijuana and PCP.
After dealing with Sprurgeon, Trooper Weidhaas approached appellant. Appellant was in
“the exact same” condition as Sprurgeon, i.e., “visibly impaired,” “[n]ot very coherent,”
unsteady on his feet, and non-responsive. The trooper believed appellant had also used PCP.
During the suppression hearing, appellant’s counsel conceded that appellant was clearly “under
the influence of something” when Trooper Weidhaas approached him.
After asking appellant to get out of the car, Trooper Weidhaas did a pat-down search of
him for weapons. During the suppression hearing, the trooper described how he used his hands
during the pat-down search. He explained that, when he reached appellant’s front pocket, the
trooper felt and saw a bulge that “was consistent with” the vial that Sprurgeon had dropped on
the ground.
Trooper Weidhaas asked appellant about the item, and appellant was non-responsive.
The trooper testified that he then asked appellant, “Would you mind showing what’s in your
pockets?” Appellant reached into his pocket and pulled out a vial exactly like the one that
Sprurgeon dropped. When Trooper Weidhaas asked what was in the vial, appellant said
“marijuana.” Appellant also admitted that he had smoked PCP that night, and the trooper then
arrested him.
-3-
At the suppression hearing, appellant argued that Trooper Weidhaas did not have a
reasonable belief that appellant was armed and dangerous, so the pat down was in violation of
his Fourth Amendment rights, pursuant to Terry v. Ohio, 392 U.S. 1 (1968). Appellant also
argued that the pat-down search went beyond the scope of Terry because the trooper put the item
between his fingers while doing the pat down. Appellant argued that the “consent” he then gave
(and pulling the item out of his pocket) was tainted by these Fourth Amendment violations, and,
therefore, the evidence was not admissible. The Commonwealth argued that the trooper had
reasonable suspicion to believe a crime was committed and that appellant was armed and
dangerous because the officer believed appellant was under the influence of PCP.
The trial court found the frisk was permissible because drugs were involved. The court
also noted that the frisk was “a very close case,” but denied appellant’s motion to suppress. A
jury found appellant guilty of possession of PCP and fined him $2,500.
ANALYSIS
A. “Armed and Dangerous”
Appellant argues that the trial court had no evidence before it to support the conclusion that
the trooper reasonably believed that he was armed and dangerous, as required under Terry, 392
U.S. 1. However, the Commonwealth on appeal does not rely upon the trial court’s Fourth
Amendment analysis under Terry and instead suggests that this Court can affirm the trial court’s
decision to deny appellant’s motion to suppress on an alternative Fourth Amendment theory – that
Trooper Weidhaas had probable cause to arrest and to search appellant.
We assume without deciding here that the trial court erred when it found that Trooper
Weidhaas had reasonable suspicion to believe appellant was armed and dangerous. Appellant
argues that we should not consider the Commonwealth’s alternative justification for the trial court’s
denial of his motion, as the prosecutor did not argue this alternative rationale to the trial court. We
-4-
must first address this argument before we can consider whether the trooper had probable cause to
support his actions.
B. Right Result/Wrong Reason
The Commonwealth asks this Court to affirm appellant’s conviction because Trooper
Weidhaas had probable cause to arrest appellant, which would justify the search under the Fourth
Amendment as a search incident to an arrest. See Chimel v. California, 395 U.S. 752, 755 (1969);
Wright v. Commonwealth, 222 Va. 188, 193, 278 S.E.2d 849, 852-53 (1981). The Commonwealth
acknowledges that the prosecutor did not specifically argue to the trial court that the trooper had
probable cause to arrest, but argues that the right result was reached here, even if the court applied
the wrong rationale. See Schultz v. Schultz, 51 Va. (10 Gratt.) 358, 384 (1853) (“[I]t is the settled
rule that how erroneous soever may be the reasons of the court for its judgment upon the face of
the judgment itself, if the judgment be right, it will not be disturbed on account of the reasons.”).
Appellant counters that this case does not present an appropriate situation to apply the doctrine of
“right result, wrong reason” under Whitehead v. Commonwealth, 278 Va. 105, 677 S.E.2d 265
(2009), modified, No. 080775 (Oct. 22, 2009). Based on the record in this case, however, we
disagree with appellant.
The Supreme Court in Whitehead considered whether the evidence was sufficient to
convict Whitehead of receiving stolen property. For the first time on appeal, the Commonwealth
argued that Whitehead had “received the stolen property itself under the doctrine of constructive
possession,” id., slip op. at 9 (emphasis added), and asked the Supreme Court to affirm the
conviction because the right result was reached, even though the trial court used the wrong
reasoning. The Supreme Court refused to consider this new theory of guilt offered by the
Commonwealth, stating, “[C]ases in which the party seeking affirmance failed to present the
-5-
argument in the trial court, such that the trial court did not have an opportunity to rule on the
argument, are not ‘proper cases’ for the application of the doctrine.” Id., slip op. at 10.
Nevertheless, the Supreme Court of Virginia then emphasized:
The Court of Appeals has previously observed that:
An appellate court may affirm the judgment of a
trial court when it has reached the right result for
the wrong reason. However,
[t]he rule does not always apply. . . .
[T]he proper application of this rule
does not include those cases where,
because the trial court has rejected
the right reason or confined its
decision to a specific ground, further
factual resolution is needed before
the right reason may be assigned to
support the trial court’s decision.
Harris v. Commonwealth, 39 Va. App. 670, 675-676, 576 S.E.2d
228, 231 (2003), Blackman v. Commonwealth, 45 Va. App. 633,
642-643, 613 S.E.2d 460, 465 (2005) (“an appellee may argue for
the first time on appeal any legal ground in support of a judgment
so long as it does not require new factual determinations.”) We
agree with these holdings by the Court of Appeals.
Id., slip op. at 12-13.
The Court also cited Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963), in
which the Supreme Court refused to consider the appellees’ estoppel argument because that
defense was not mentioned during trial, and so the trial court never made the factual findings
required for application of estoppel. Thus, Whitehead, contrary to appellant’s claim, applies
only when the new argument made on appeal involves consideration of factual findings that the
trial court never reached, rather than application of a different legal theory to facts already
considered by the trial court. See Commonwealth v. Hill, 264 Va. 541, 548, 570 S.E.2d 805, 809
(2002) (overturning Hill v. Commonwealth, 37 Va. App. 1, 553 S.E.2d 529 (2001)) (finding a
trial court “reached the correct result in this case, although for the wrong reason” where the
-6-
Supreme Court did not indicate that the legal analysis used to affirm Hill’s conviction was
argued to the trial court and where the Commonwealth, when arguing before the Court of
Appeals, had conceded that a different legal theory for affirming the trial court should be
applied). Cf. Schultz, 51 Va. (10 Gratt.) at 384 (“[I]t is the settled rule that how erroneous
soever may be the reasons of the court for its judgment upon the face of the judgment itself, if
the judgment be right, it will not be disturbed on account of the reasons.”).
In addition, in the case before this Court, the Commonwealth argues on appeal that Trooper
Weidhaas had probable cause to arrest appellant prior to the pat-down search, and, thus, the search
was permissible. This argument, like the argument based on reasonable suspicion that was
presented to the trial court here, is also a Fourth Amendment argument. All the facts required to
consider this legal argument were presented to the trial court and considered by it when it addressed
the Fourth Amendment reasonable suspicion argument of the trial prosecutor. Thus, we find the
posture of this case is quite similar to the situation in the recent case of Moore v. Commonwealth,
276 Va. 747, 754, 668 S.E.2d 150, 154 (2008), where the Supreme Court reversed this Court and
found that “invok[ing] the ‘probable cause standard’ rather than the applicable ‘reasonable
suspicion standard’” leaves “no doubt” that the issue in question involves the Fourth Amendment.
We find that this case presents an appropriate situation for the application of the right
result/wrong reason doctrine. Whitehead does not preclude consideration of the legal theory
presented here – that probable cause existed for the arrest and search of appellant. As in Moore, the
parties here were aware at all stages of this case that the courts would look to the Fourth
Amendment to determine if Trooper Weidhaas’s actions were appropriate – regardless of whether
the question involved probable cause or reasonable articulable suspicion.
-7-
C. Probable Cause
As noted, supra, the Commonwealth argues on appeal that Trooper Weidhaas had probable
cause to arrest appellant, and, therefore, the search did not violate the dictates of the Fourth
Amendment even if the search was not justified under the principles established in Terry. Appellant
agrees that, if the trooper had probable cause to arrest him, then the search was valid as a search
incident to arrest. See Wright, 222 Va. at 192-93, 278 S.E.2d at 852-53 (finding that an officer with
probable cause for an arrest can search the suspect first and then arrest him); Carter v.
Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d 505, 506-07 (1990) (noting that the search, if
supported by independent probable cause, need not follow the arrest). However, appellant contends
the trooper did not have probable cause to believe he was in possession of illegal drugs.
We agree with the Commonwealth that Trooper Weidhaas had probable cause to arrest
appellant. Thus, we conclude that the trial court – even assuming without deciding that some of its
reasoning was not correct – reached the right conclusion when it denied appellant’s motion to
suppress.
The United States Supreme Court has explained probable cause numerous times. In
Maryland v. Pringle, 540 U.S. 366 (2003), cited by both parties here, that Court noted:
“[t]he substance of all the definitions of probable cause is a
reasonable ground for belief of guilt,” [Brinegar v. United States,
338 U.S. 160, 175 (1949)] (internal quotation marks and citations
omitted), and that the belief of guilt must be particularized with
respect to the person to be searched or seized, Ybarra v. Illinois,
444 U.S. 85, 91, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979).
* * * * * * *
To determine whether an officer had probable cause to arrest an
individual, we examine the events leading up to the arrest, and then
decide “whether these historical facts, viewed from the standpoint
of an objectively reasonable police officer, amount to” probable
-8-
cause, Ornelas [v. United States, 517 U.S. 690,] 696, 134 L. Ed. 2d
911, 116 S. Ct. 1657 [(1996)].
Id. at 371 (some brackets in original).
Here, as Trooper Weidhaas approached the silver car, which was stopped on the shoulder of
Interstate 66 at two o’clock in the morning, he smelled a strong odor of marijuana coming from the
car. Trooper Weidhaas had additional information as well by the time he confronted appellant.
Prior to his interaction with appellant, the trooper had arrested another passenger in the car –
Sprurgeon. Trooper Weidhaas recovered PCP and marijuana that Sprurgeon had dropped as he
got out of the car. Sprurgeon behaved in a manner consistent with someone under the influence
of PCP, and Sprurgeon had admitted to the trooper that he had smoked PCP that evening.
Appellant was behaving in the exact same manner as Sprurgeon, allowing the officer to reach the
logical conclusion that appellant had also smoked PCP that evening. Appellant’s counsel
conceded at the suppression hearing that appellant was clearly “under the influence of
something” when Trooper Weidhaas talked to him. Based on all these facts, which the trial court
clearly considered in finding the trooper had reasonable suspicion for the pat-down search, the
trooper certainly had probable cause to believe that appellant possessed illegal drugs – either by
having joint or constructive possession of the drugs originally in Sprurgeon’s hand or by having
actual possession of other drugs that the officer had not yet seen. See Ritter v. Commonwealth,
210 Va. 732, 741, 173 S.E.2d 799, 805-06 (1970) (noting that possession of an illegal drug can
be actual, constructive, or joint).
Appellant argues that probable cause “must be particularized with respect to the person to
be searched” and contends that the facts here did not particularly indicate that he actually
possessed PCP or marijuana. We believe the facts here provided the trooper with sufficient
information to particularize the probable cause to appellant.
-9-
First, appellant was one of only three people in the car, which was parked on the shoulder
of the interstate, from which the smell of marijuana was emanating. Second, appellant had
clearly ingested some intoxicating agent, and the only agents at the scene were PCP and
marijuana. Third, the trooper, based on his training and experience, believed appellant’s
behavior indicated that he had ingested PCP and/or marijuana. In addition, Sprurgeon had
admitted that he smoked PCP earlier that evening, and appellant was behaving in exactly the
same manner as Sprurgeon. These facts did more than suggest that someone in the general area
had marijuana or PCP in his possession – they gave the trooper probable cause to believe that
appellant in particular possessed and had been using illegal narcotics. See Dodd v.
Commonwealth, 50 Va. App. 301, 310-11, 649 S.E.2d 222, 226-27 (2007) (discussing joint
possession of drugs found in the center console of a car) (citing Pringle, 540 U.S. 366).
CONCLUSION
We assume without deciding that the trial court erred when it found Trooper Weidhass had
sufficient information to provide him with reasonable articulable suspicion that appellant was armed
and dangerous. Nevertheless, we find that the trial court’s ruling that denied the motion to suppress
was correct as the trooper had probable cause to arrest appellant and, therefore, did not violate the
Fourth Amendment when searching him. Thus, we find the trial court did not err in denying
appellant’s motion to suppress, and we affirm appellant’s conviction.
Affirmed.
- 10 -