COURT OF APPEALS OF VIRGINIA
Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia
ADRIAN EDWARDO SLAYTON
OPINION BY
v. Record No. 1913-02-2 JUDGE D. ARTHUR KELSEY
JUNE 24, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Bryan K. Selz (Overbey, Hawkins, Selz &
Wright, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial court found the appellant, Adrian Edwardo
Slayton, guilty of possession of cocaine with intent to
distribute (Code § 18.2-248) and possession of a firearm while
simultaneously possessing illegal drugs (Code § 18.2-308.4(A)).
On appeal, Slayton challenges only the trial court's denial of
his pretrial suppression motion. Finding no error, we affirm
the trial court.
I.
"On appeal from a denial of a suppression motion, we must
review the evidence in the light most favorable to the
Commonwealth, giving it the benefit of any reasonable
inferences." Barkley v. Commonwealth, 39 Va. App. 682, 687, 576
S.E.2d 234, 236 (2003); see also Bass v. Commonwealth, 259 Va.
470, 475, 525 S.E.2d 921, 924 (2000).
On November 30, 2001, Slayton was a passenger in a vehicle
traveling in a high crime area in Halifax County. Deputies
Jimmy Clay and Craig Spencer stopped the vehicle for failure to
display a county decal. Spencer approached the vehicle's
passenger side while Clay issued a summons to the driver. From
his vantage point, Spencer was able to see several bullets in
the vehicle's open glove box. The sheriff's department had been
investigating a number of shootings in the area involving rifles
and the bullets in the glove box appeared to Spencer "to be
rifle bullets."
After issuing the summons for the decal, Deputy Clay asked
the driver for consent to search the vehicle. The driver
consented and Slayton exited the passenger seat of the vehicle.
At that point, Deputy Spencer noticed that "Slayton's 'long
mid-thigh' winter coat was 'cockeyed' and that there was
'something' in the right pocket." Spencer asked Slayton if he
was carrying a weapon. Slayton "shook his head, no."
Nonetheless fearing for his safety, Spencer initiated a limited
weapons pat-down, beginning with Slayton's left side and then
working over to his right side. As Spencer inspected Slayton's
right side, he saw what appeared to be the butt of a handgun
with a shell clip in it protruding from the pocket "a couple of
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inches." Except for the portion of the butt sticking out of
Slayton's pocket, the remainder of the weapon could not be seen.
While removing the handgun, Spencer "could hear it hit
something else in the pocket." Spencer retrieved the other
object from Slayton's pocket, which turned out to be a pill
bottle containing nine rocks of crack cocaine. Immediately
thereafter, Spencer placed Slayton under arrest for possession
of crack cocaine and the simultaneous possession of a firearm.
At trial, Slayton moved to suppress the crack cocaine
claiming that (i) Deputy Spencer did not have a reasonable,
articulable suspicion warranting the initial pat-down, and, in
any event, (ii) the search exceeded the permissible scope of a
weapons frisk when Deputy Spencer removed the canister from
Slayton's pocket.
The trial court denied the suppression motion, finding that
the totality of the circumstances (the presence of bullets in
open view, the recent history of violence, the reputation of the
location as a "high crime area" notorious for drug transactions,
the possibility of a weapon causing Slayton's coat pocket to
droop down, and the presence of an unknown object in the same
pocket as the firearm) provided sufficient justification for
Deputy Spencer's removal of both the firearm and the pill bottle
from Slayton's pocket.
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II.
"Though the ultimate question whether the officers violated
the Fourth Amendment triggers de novo scrutiny, we defer to the
trial court's findings of 'historical fact' and give 'due weight
to the inferences drawn from those facts by resident judges and
local law enforcement officers.'" Barkley, 39 Va. App. at
689-90, 576 S.E.2d at 237-38 (citations omitted). Thus, we must
give "deference to the factual findings of the trial court" and
"independently determine" whether those findings satisfy the
requirements of the Fourth Amendment. Whitfield v.
Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003). To
prevail on appeal, "the defendant must show that the trial
court's denial of his suppression motion, when the evidence is
considered in the light most favorable to the prosecution, was
reversible error." Id.
On appeal, Slayton concedes that "Deputy Spencer was
entitled to conduct a limited pat-down search of the
defendant for weapons." Slayton argues, however, that the
subsequent removal of the pill bottle containing crack cocaine
violated the Fourth Amendment. Slayton acknowledges the
search-incident-to-arrest exception to the warrant requirement,
but contends it does not apply here because (i) Deputy Spencer
had no probable cause to arrest Slayton for carrying a concealed
weapon, and (ii) even if probable cause existed, Spencer's
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failure to arrest Slayton on that particular charge precludes it
from being a basis for the incidental search. For the following
reasons, we disagree with both assertions.
A.
We begin with probable cause, which "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." Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662,
666 (1991) (citation omitted). "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."
Purdie v. Commonwealth, 36 Va. App. 178, 185, 549 S.E.2d 33, 37
(2001) (quoting Jones v. Commonwealth, 18 Va. App. 229, 231, 443
S.E.2d 189, 190 (1994)) (internal quotation marks omitted); see
also Al-Karrien v. Commonwealth, 38 Va. App. 35, 47, 561 S.E.2d
747, 753 (2002).
Probable cause relies on a "flexible, common-sense
standard" —— one that does not "demand any showing that such a
belief be correct or more likely true than false." Texas v.
Brown, 460 U.S. 730, 742 (1983) (citations and internal
quotation marks omitted). In other words, the standard "does
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not deal with hard certainties, but with probabilities." Id.
"Long before the law of probabilities was articulated as such,
practical people formulated certain common-sense conclusions
about human behavior; jurors as factfinders are permitted to do
the same —— and so are law enforcement officers." Id. As a
result, "in determining whether probable cause exists, the
evidence 'must be seen and weighed not in terms of library
analysis by scholars, but as understood by those versed in the
field of law enforcement.'" Gomez v. Atkins, 296 F.3d 253, 262
(4th Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 232
(1983)).
Under this standard, Deputy Spencer had probable cause to
believe Slayton was carrying a concealed weapon in violation of
Code § 18.2-308. Except for a "couple of inches" of the butt of
the handgun protruding from Slayton's pocket, the rest of the
weapon was completely hidden. And even those "couple of inches"
were observed by Deputy Spencer only during the close-quarters
encounter of a weapons frisk, not beforehand. A reasonable
probability exists, therefore, that Slayton's firearm —— both at
the time of the pat-down and during the few moments immediately
preceding it —— was "hidden from all except those with an
unusual or exceptional opportunity" to observe it. Winston v.
Commonwealth, 26 Va. App. 746, 756, 497 S.E.2d 141, 146 (1998)
(quoting Main v. Commonwealth, 20 Va. App. 370, 372-73, 457
S.E.2d 400, 402 (1995) (en banc)). An equally reasonable
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probability supports the inference that Slayton, having lied
about having a firearm on him when directly questioned by Deputy
Spencer, did not possess a permit issued under Code
§ 18.2-308(D) authorizing him to carry a concealed weapon.
Slayton disagrees, arguing that the firearm was not hidden
from common observation because Deputy Spencer observed a
portion of the butt protruding from Slayton's pocket and
immediately knew it to be a handgun. Anyone else observing
Slayton from that vantage point, he contends, might likewise
have seen it. As a result, Slayton reasons, the evidence would
not have been sufficient to support a conviction under
§ 18.2-308. Perhaps so —— but that misses the point. "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."
Brinegar v. United States, 338 U.S. 160, 175 (1949) (citations
and internal quotation marks omitted).
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. Gomez, 296
F.3d at 262 (quoting Taylor v. Waters, 81 F.3d 429, 434 (4th
Cir. 1996)). Unlike a factfinder at trial, "reasonable law
officers need not 'resolve every doubt about a suspect's guilt
before probable cause is established.'" Id. (quoting Torchinsky
v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991)). We reject,
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therefore, Slayton's assertion that the alleged insufficiency of
the evidence for a conviction necessarily precludes a finding of
probable cause.
Because Deputy Spencer had probable cause to believe
Slayton illegally possessed a concealed weapon, Spencer had
authority both to arrest Slayton and to search him incident to
that arrest. See United States v. Robinson, 414 U.S. 218, 224
(1973) ("It is well settled that a search incident to a lawful
arrest is a traditional exception to the warrant requirement of
the Fourth Amendment."); McCain v. Commonwealth, 261 Va. 483,
492, 545 S.E.2d 541, 546 (2001); Ross v. Commonwealth, 35
Va. App. 103, 105, 542 S.E.2d 819, 820 (2001).
It matters not that the search preceded the actual arrest
so long as probable cause existed at the time of the search.
McCracken v. Commonwealth, 39 Va. App. 254, 261, 572 S.E.2d 493,
496 (2002) (en banc). Once "probable cause exists to arrest a
person, a constitutionally permissible search of the person
incident to arrest may be conducted by an officer either before
or after the arrest if the search is contemporaneous with the
arrest." Italiano v. Commonwealth, 214 Va. 334, 336, 200 S.E.2d
526, 528 (1973) (emphasis in original). 1
1
"It is axiomatic," however, "that an incident search may
not precede an arrest and serve as part of its justification."
Smith v. Ohio, 494 U.S. 541, 543 (1990) (quoting Sibron v. New
York, 392 U.S. 40, 63 (1968)); see also Henry v. United States,
361 U.S. 98, 103 (1959) ("An arrest is not justified by what the
subsequent search discloses"). In other words, "the legality of
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B.
Slayton also argues that even if probable cause existed for
a concealed weapons violation, that was not the ground on which
he was arrested. The search-incident-to-arrest doctrine, he
reasons, simply does not apply. The argument has some intuitive
appeal, but only if one assumes a subjective standard governs
the probable cause test. Probable cause, however, turns only on
"'objective facts,' not the 'subjective opinion' of a police
officer." Golden v. Commonwealth, 30 Va. App. 618, 625, 519
S.E.2d 378, 381 (1999) (citations omitted). As a result, "the
fact that the officer does not have the state of mind which is
hypothecated by the reasons which provide the legal
justification for the officer's action does not invalidate the
action taken as long as the circumstances, viewed objectively,
justify that action." Whren v. United States, 517 U.S. 806, 813
(1996) (quoting Scott v. United States, 436 U.S. 128, 138
(1978)).
The absence of probable cause to believe a suspect
committed the particular crime for which he was arrested does
not necessarily invalidate the arrest if the officer possessed
the arrest cannot depend on the search." United States v. Han,
74 F.3d 537, 541 (4th Cir. 1996). But, when probable cause for
an arrest "exists independently of what the search produces, the
fact that the search precedes the formal arrest is immaterial
. . . ." Italiano, 124 Va. at 337, 200 S.E.2d at 528 (quoting
Holt v. Simpson, 340 F.2d 853, 856 (7th Cir. 1965)).
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sufficient objective information to support an arrest on a
different charge. See Golden, 30 Va. App. at 625, 519 S.E.2d at
381; McGuire v. Commonwealth, 31 Va. App. 584, 596-97, 525
S.E.2d 43, 49 (2000). This principle merely recognizes the
settled rule that the "validity of an arrest is normally gauged
by an objective standard rather than by inquiry into the
officer's presumed motives." Limonja v. Commonwealth, 8
Va. App. 532, 538, 383 S.E.2d 476, 480 (1989) (en banc)
(citation omitted). For this reason, the fact that Slayton was
arrested under Code §§ 18.2-248 (cocaine possession) and
18.2-308.4(A) (possession of firearm and cocaine
simultaneously), rather than under Code § 18.2-308 (possession
of a concealed weapon), does not preclude the concealed weapon
basis for Slayton's search incident to his arrest.
III.
In sum, the trial court did not err by denying Slayton's
motion to suppress. 2 Deputy Spencer had probable cause to arrest
2
In his suppression motion, Slayton argued that his
warrantless search also violated the Virginia Constitution. Our
Fourth Amendment analysis, however, governs this issue as well.
"Our courts have consistently held that the protections afforded
under the Virginia Constitution are co-extensive with those in
the United States Constitution." Sabo v. Commonwealth, 38 Va.
App. 63, 77, 561 S.E.2d 761, 768 (2002)(quoting Henry v.
Commonwealth, 32 Va. App. 547, 551, 529 S.E.2d 796, 798 (2000),
and Bennefield v. Commonwealth, 21 Va. App. 729, 739-40, 467
S.E.2d 306, 311 (1996)).
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Slayton for a concealed weapon offense as well as the
concomitant right to conduct a search incident to that arrest.
It is legally irrelevant that, upon the discovery of the pill
bottle containing suspected cocaine, Spencer chose not to charge
Slayton with the lesser concealed-weapon violation.
Affirmed.
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