Edwards v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia

KAREEN LATIF EDWARDS
OPINION BY
v. Record No. 1293-01-1 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 27, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Junius P. Fulton, III, Judge

William P. Robinson, Jr. (Robinson, Neeley &
Anderson, on brief), for appellant.

Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

Kareen Latif Edwards pled guilty to possession of cocaine

with the intent to distribute, conditioned upon his ability to

appeal the trial court's order denying his motion to suppress

evidence. He was convicted by the trial court and sentenced to

twenty years in prison, with fifteen years suspended. Edwards

appeals from the trial court's denial of his motion to suppress

evidence. For the reasons that follow, we affirm.

Background

On February 20, 2000, Officer Michael Reardon investigated

Room 256 at the Econo Lodge at 1111 East Ocean View in Norfolk

based on an informant's tip that two individuals were selling
narcotics from that location, one of whom was known as "E."

When Officer Reardon had "just about finished up" his search of

the room, Edwards knocked on the door and entered carrying a

clear plastic bag of women's white tube socks. Edwards

identified himself as "E."

Officer Reardon told Edwards that he understood Edwards was

a supplier of cocaine to a variety of locations in the Ocean

View area, including three locations at the motel. The officer

then asked Edwards for consent to search his person. While

holding the bag of socks, Edwards responded, "[s]ure, no

problem."

Edwards put the bag of socks on the bed and cooperated with

the search. Officer Reardon searched him but did not find any

narcotics. Reardon picked up the bag and asked the defendant

what he was doing with a bag of women's white tube socks.

Reardon immediately noticed a lumpy object inside the tube

socks. He looked inside the bag and found two plastic sandwich

bags inside the socks. One bag contained fifty zip-lock baggies

of crack cocaine, and the other contained twenty-five zip-lock

baggies of crack cocaine.

Edwards moved to suppress the evidence found in the socks

on the ground that the search of the bag violated his Fourth

Amendment right to be protected against unreasonable searches.

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The trial court denied his motion, finding that he consented to

the search.

Analysis

Edwards appeals the trial court's denial of his motion to

suppress the evidence of crack cocaine found in the baggies. 1

Specifically, he contends that the warrantless search was

unreasonable because his consent to search his person did not

extend to the bag. We disagree.

On appeal of a ruling on a motion to suppress, we view the

evidence in the light most favorable to the party prevailing

below, granting to it all reasonable inferences fairly deducible

therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,

407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial court's

findings of historical fact unless 'plainly wrong' or without

evidence to support them[,] and we give due weight to the

inferences drawn from those facts by resident judges and local

law enforcement officers." McGee v. Commonwealth, 25 Va. App.

193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas

v. United States, 517 U.S. 690, 699 (1996)). However, we review

de novo the trial court's application of defined legal

standards. Ornelas, 517 U.S. at 699. "Both the presence of

1
The Commonwealth also argues that the officer had probable
cause to arrest Edwards and, therefore, lawfully searched the
bag. Because the trial court did not consider this argument, we
do not address it on appeal.

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consent to search and any related limitations are factual issues

for the trial court to resolve after consideration of the

attendant circumstances." Bynum v. Commonwealth, 23 Va. App.

412, 418, 477 S.E.2d 750, 753 (1996).

"A consensual search is reasonable if the search is within

the scope of the consent given." Grinton v. Commonwealth, 14

Va. App. 846, 850, 419 S.E.2d 860, 862 (1992).

The United States Supreme Court has
articulated the standard for measuring the
scope of an individual's consent under the
Fourth Amendment to be "'objective'
reasonableness—what would the typical person
have understood by the exchange between the
officer and the suspect?" Florida v.
Jimeno, 500 U.S. 248, 251 (1991).
Furthermore, the Court stated that, "[t]he
scope of a search is generally defined by
its expressed object." Id.

Bolda v. Commonwealth, 15 Va. App. 315, 317, 423 S.E.2d 204, 206

(1992) (quoted in Bynum, 23 Va. App. at 418, 477 S.E.2d at 753).

"'A suspect may of course delimit as he chooses the scope of the

search to which he consents. But if his consent would

reasonably be understood to extend to a particular container,

the Fourth Amendment provides no grounds for requiring a more

explicit authorization.'" Lawrence v. Commonwealth, 17 Va. App.

140, 145, 435 S.E.2d 591, 594 (1993) (quoting Jimeno, 500 U.S.

at 252).

Whether consent to search one's person includes containers

such as a purse or bag held by that person is a matter of first

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impression in Virginia. We are, however, guided by the

reasoning of several of our sister courts considering the import

of the term "person" in the context of the search of a person

pursuant to a warrant. For example, in United States v. Graham,

the Seventh Circuit Court of Appeals concluded that the

defendant's shoulder purse could be considered part of "his

person." See 638 F.2d 1111, 1114 (7th Cir. 1981) (holding that

search of defendant's purse, which he carried, was authorized by

a warrant to search "his person"). In holding that such objects

are within the scope of the search of a person, the Court noted:

The human anatomy does not naturally contain
external pockets, pouches, or other places
in which personal objects can be
conveniently carried. To remedy this
anatomical deficiency clothing contains
pockets. In addition, many individuals
carry purses or shoulder bags to hold
objects they wish to have with them.
Containers such as these, while appended to
the body, are so closely associated with the
person that they are identified with and
included within the concept of one's person.
To hold differently would be to narrow the
scope of a search of one's person to a point
at which it would have little meaning.

Id. Several other jurisdictions have similarly concluded that

the search of a person includes containers held by the person.

See United States v. Robertson, 833 F.2d 777, 784 (9th Cir.

1987) (holding that search of backpack constituted a search of

defendant's person and was not authorized by search warrant for

premises); Minnesota v. Wynne, 552 N.W.2d 218, 220 (Minn. 1996)

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(concluding that search of defendant's purse constituted a

search of her person); Wisconsin v. Andrews, 549 N.W.2d 210,

216, 218 (Wis. 1996) (noting that items worn by, or appended to

the body of, a person are included within the concept of the

person and, therefore, are not encompassed by a search warrant

that does not specifically authorize a search of the person);

Hayes v. Georgia, 234 S.E.2d 360, 361-62 (Ga. Ct. App. 1977)

(holding that search of appellant's suitcase, found on the floor

next to the couch on which he was sleeping, was an

unconstitutional search of his person and was not authorized by

a search of the residence); cf. United States v. Branch, 545

F.2d 177, 182 (D.C. Cir. 1976) (holding that search of shoulder

bag was not authorized by search warrant for apartment).

We, therefore, hold that the scope of consent to search

one's person encompasses such items. Although the cases we find

persuasive on the issue before us were decided in the context of

a search pursuant to a search warrant, and not pursuant to

consent, we find nothing in the reasoning or the holdings of the

courts deciding the issue that suggests the analogy is inapt.

Indeed, the circumstances requiring a definition of "the person"

in the context of conducting a search pursuant to a search

warrant are comparable to those in which the police acted in

this case. In both instances, the officers had to determine

whether the scope of the permitted search--one permitted on the

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basis of a search warrant of "the person,"--the other pursuant

to consent to search of "the person," included bags and other

such items appended or otherwise closely associated with the

individual. In both instances, the acting officer was presented

with the need to determine whether the authority granted to

search "the person" extended to such items. The different

premises underlying the authority to search the person do not

change the ultimate question to be resolved, to wit, the scope

of the term, "the person."

In this case, Edwards was holding the bag of women's white

tube socks when he consented to the search of his person. Thus,

the bag was "appended to," or intimately connected with, his

person. Cf. Jean-Laurent v. Commonwealth, 34 Va. App. 74, 80,

538 S.E.2d 316, 319 (2000) (search of defendant's suitcase was

not authorized by defendant's consent to "search his person,"

where he consented while in a bus terminal and his suitcase

remained on the bus). He also understood that the object of the

search was evidence related to cocaine distribution, which could

possibly be found within the bag. See Jimeno, 500 U.S. at 251

("The scope of a search is generally defined by its expressed

object."). Thus, the trial court's determination that Officer

Reardon understood Edwards' consent to include the container

that he carried was reasonable and not plainly wrong.

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 To the extent that Edwards thereafter made the scope of his

consent less clear by placing the bag on the bed before the

officer began the pat-down, his passive acquiescence while the

officer searched the bag affirmed that the bag was within the

scope of his consent. See Grinton, 14 Va. App. at 451, 419

S.E.2d at 863 ("The scope of a search may be further defined

during the course of the search by the passive acquiescence of

the person whose property is being searched."); United States v.

Rison, 946 F.2d 1497, 1501 (10th Cir. 1991); United States v.

Espinosa, 782 F.2d 888, 892 (10th Cir. 1986) ("Failure to object

to the continuation of the search . . . may be considered an

indication that the search was within the scope of the

consent."); McNair v. Commonwealth, 31 Va. App. 76, 83, 521

S.E.2d 303, 307 (1999) (holding that defendant's failure to

withdraw consent to search for "criminal activity" in his home

included the top floor because he did not withdraw his consent

to search when he observed the officer go upstairs). In

Grinton, the defendants expressly consented to a search of "the

contents and containers" of their vehicle. 14 Va. App. at 851,

419 S.E.2d at 863. Although this consent did not expressly

include the trunk, they did not object or withdraw consent when

the officer searched the trunk of the car. Id. We thus held

that the defendants' acquiescence in the search of the trunk

clarified that their consent included the trunk. See id.

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 Likewise in Rison, the defendant claimed that the trooper

exceeded the scope of his consent to search "the glove box, the

trunk and the remainder of his vehicle" when the trooper

searched underneath the back seat of the vehicle. 946 F.2d at

1501. The defendant, however, standing only five feet from the

automobile during the search, did not object to the search of

the back seat. On these facts, the court held that "it would be

reasonable to conclude that defendant's acquiescence indicated

that the search was within the scope of the consent." Id.

Similarly, Edwards, after consenting to the search of "his

person," which could reasonably be understood to include the bag

he held, stood in close proximity to the officer when he began

to search the bag and did not object, withdraw his consent, or

otherwise limit the scope of his consent. See Grinton, 14

Va. App. at 851, 419 S.E.2d at 863 (holding that once initial

consent to search has been given, "passive acquiescence"

broadens the scope of search); McNair, 31 Va. App. at 83, 521

S.E.2d at 307 (holding that failure to withdraw consent was

evidence that defendant consented to search in progress); cf.

Hughes v. Commonwealth, 31 Va. App. 447, 458, 514 S.E.2d 155,

161 (2000) (en banc) (holding that acquiescence to a strip and

body cavity search did not extend the scope of defendant's

consent to search his person because of the highly intrusive

nature of the search). Edwards' initial consent to the search

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of his person, together with his subsequent passive acquiescence

to the search of his bag, would lead a reasonable officer to

believe that Edwards' consent to the search included the bag he

carried. Therefore, we hold that the trial court did not err in

denying Edward's motion to suppress and affirm his conviction.

Affirmed.

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Elder, J., dissenting.

I would hold, as a matter of law, that the search of

Edwards (appellant) exceeded the scope of his consent to search.

I also would hold that the search was not valid as incident to a

lawful arrest because the officer lacked probable cause to

believe appellant had committed a narcotics offense. Thus, I

would hold the trial court's denial of the motion to suppress

was erroneous, and I would reverse and dismiss the challenged

conviction.

A.

SCOPE OF CONSENT TO SEARCH

"A consensual search is reasonable if the search is within

the scope of the consent given." Grinton v. Commonwealth, 14

Va. App. 846, 850, 419 S.E.2d 860, 862 (1992). Consent may be

express or implied. Jean-Laurent v. Commonwealth, 34 Va. App.

74, 79, 538 S.E.2d 316, 318 (2000). The scope of the consent is

viewed under a standard of "'objective' reasonableness--what

would the typical reasonable person have understood by the

exchange between the officer and the suspect?" Florida v.

Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04, 114

L. Ed. 2d 297 (1991). "[T]he State has the burden of proving

the necessary consent was obtained . . . ." Florida v. Royer,

460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229

(1983).

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 "Both the presence of consent to search and any related

limitations are factual issues for the trial court to resolve

after consideration of the attendant circumstances." Bynum v.

Commonwealth, 23 Va. App. 412, 418, 477 S.E.2d 750, 753 (1996).

Nevertheless, we review de novo the trial court's application of

the legal principles relating to consent searches to its factual

findings on the issue of consent and any related limitations.

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657,

1659, 134 L. Ed. 2d 911 (1996). We also may set aside factual

findings if they are plainly wrong or without evidence to

support them. E.g., McGee v. Commonwealth, 25 Va. App. 193,

198, 487 S.E.2d 259, 261 (1997) (en banc).

I agree that a suspect may further define the scope of a

search by his "passive acquiescence" while the search is

underway. Grinton, 14 Va. App. at 451, 419 S.E.2d at 863.

However, because the Commonwealth bears the burden of proving

the necessary consent, see Royer, 460 U.S. at 497, 103 S. Ct. at

1324, "passive acquiescence," standing alone, is insufficient to

broaden the scope of a search where the suspect's original

consent unambiguously excluded a particular item or items. As

the majority acknowledges, the Fourth Amendment does not require

explicit authorization to search a particular container if "[a

suspect's original] consent would reasonably be understood to

extend to [that] particular container." Jimeno, 500 U.S. at

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252, 111 S. Ct. at 1804. As Professor Wayne R. LaFave has

observed in the context of premises searches, "the boundaries of

the place referred to mark the outer physical limits of the

authorized search." 3 Wayne R. LaFave, Search and Seizure

§ 8.1(c), at 612 (3d ed. 1996). I see no reason why this

principle should not apply equally to searches of the person.

Here, appellant's express consent applied only to a search

of "his person." "The burden was upon the officer to obtain

consent [covering the bag he wished to search], not on

[appellant] to affirmatively deny consent." Jean-Laurent, 34

Va. App. at 80, 538 S.E.2d at 319 (holding tacit consent to

search of person was insufficient to prove consent to search

bags, where bags were not in defendant's actual possession,

defendant merely pointed out bags at officer's request, and

officer never specifically asked for consent to search bags).

The mere fact that the object of the officer's search was

narcotics, that appellant was aware of this fact when he

consented to the search, and that narcotics could have been

hidden in the plastic bag appellant was carrying did not

automatically expand the scope of appellant's consent when

Officer Reardon expressly requested consent to search only

appellant's "person" and appellant set the bag down before the

search began. Although the test for determining the scope of a

suspect's consent is an objective one, Officer Reardon indicated

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his subjective understanding that the scope of appellant's

consent did not cover the bag of socks when he testified that

his "search of [appellant's] person" yielded nothing

incriminating and that he did not ask for consent to search the

bag of socks.

The cases cited by the majority do not support the

conclusion that appellant's consent to a search of his person

necessarily included consent to a search of the bag of socks.

As the majority concedes, this issue is one of first impression

in Virginia, and even the cases from other jurisdictions upon

which the majority relies involved construction "of the term

'person' in the context of [(1)] searching 'the person' pursuant

to a warrant" for that person or (2) searching the belongings of

a nonresident visitor pursuant to a warrant for the premises on

which the person was found. See United States v. Graham, 638

F.2d 1111, 1114 (7th Cir. 1981) (holding that "a shoulder purse

carried by a person at the time he is stopped lies within the

scope of a warrant authorizing the search of his person"); see

also United States v. Branch, 545 F.2d 177, 182-83 (D.C. Cir.

1976) (noting premises warrant did not validate search of

shoulder bag in possession of person who arrived on premises

after search had begun but that "such personal items as [a]

shoulder bag" or "a wallet and paper bag, passed by one occupant

of the residence to the other," "may, in some circumstances, be

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found to be within the ambit of a premises search warrant");

United States v. Robertson, 833 F.2d 777, 778, 784 (9th Cir.

1987) (applying principle that containers closely associated

with one's person require warrant specifically authorizing their

search to invalidate search of backpack carried by defendant,

who was leaving house when officers arrived to execute arrest

warrant for a third party, where premises warrant police secured

after seizing defendant's backpack did not specifically

authorize search of defendant or her backpack); State v. Wynne,

552 N.W.2d 218, 220 (Minn. 1996) (relying on Graham to

invalidate search of purse taken from person arriving outside

residence for which police had premises warrant after search

already had commenced); State v. Andrews, 549 N.W.2d 210,

215-16, 218 (Wis. 1996) (relying in part on Graham to hold that

police executing premises warrant may not search items "worn by

or in the physical possession of persons whose search is not

authorized by the warrant" (footnote omitted)); Hayes v. State,

234 S.E.2d 360, 361-62 (Ga. Ct. App. 1977) (holding search of

suitcase found next to man sleeping on couch was

unconstitutional where officers had warrant for particular

apartment and its occupant and failed, prior to search, to take

reasonable steps to determine whether suitcase belonged to

occupant named in warrant or to nonresident visitor).

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 The Seventh Circuit Court of Appeals reasoned in Graham,

relied upon by the majority, that excluding "[c]ontainers . . .

appended to the body" from the scope of a warrant for the person

"would be to narrow the scope of a search of one's person to a

point at which it would have little meaning." 638 F.2d at 1114.

The court in Graham specifically characterized the question at

issue as whether "a shoulder purse carried by a person at the

time he is stopped lies within the scope of a warrant

authorizing the search of his person." Id. Accepting the

court's holding in Graham as proper when applied to searches

supported by warrants, I nevertheless would not apply such

reasoning to consent searches. As one jurist has observed,

[A] shoulder bag or purse has been held to
fall within a warrant for the search of a
person in a case where the court refused to
"narrow the scope" of the warrant and
admitted all the evidence obtained.
[Graham, 638 F.2d at 114]. But that, under
the perspective of upholding a search [made
pursuant to a warrant], a bag is personal
does not prevent it from being seen under
another perspective as distinct from the
person.

Robertson, 833 F.2d at 788 (Noonan, C.J., dissenting) (emphasis

added) (rejecting majority's conclusion equating search of

backpack with search of "pocket on a pair of pants on a person"

and arguing correct result would be to uphold admission of

contents of backpack found on premises pursuant to search

warrant for "formulas for making methamphetamine"); cf. Graham,

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638 F.2d at 1114 (noting "defendant is mistaken in his

contention that the rationale used to define the scope of a

search incident to an arrest is equally applicable in defining

the scope of a search of the person authorized by a warrant").

Virginia law expressly provides that, in the absence of a

search warrant or probable cause coupled with exigent

circumstances, see, e.g., Jefferson v. Commonwealth, 27 Va. App.

1, 16, 497 S.E.2d 474, 481 (1998), the Commonwealth bears the

burden of proving a suspect has consented to the search

conducted, and a court evaluating whether the search exceeded

the scope of the consent must determine what "the typical

reasonable person [would] have understood by the exchange

between the officer and the suspect," Jimeno, 500 U.S. at 251,

111 S. Ct. at 1803-04. What a magistrate envisions when issuing

a warrant for the search of a person, and, more importantly,

what the Constitution permits under the language of that

warrant, may be very different from what "the typical reasonable

person [would] have understood" when consenting to a search of

one's person. The majority cites not a single case dealing with

the meaning of "person" within the context of a consent search.

Because the Commonwealth bears the burden of proving consent,

cases dealing with the construction of a warrant authorizing the

search of a person or a particular premises simply are not

persuasive.

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 Finally, the additional cases cited by the majority are

distinguishable from appellant's case and do not support the

conclusion that appellant's mere failure to object to Officer

Reardon's picking up and searching the bag proved his original

consent was intended to cover the bag. For example, in Grinton,

the defendants consented to a search of "the contents and

containers" of their vehicle without mention of the vehicle's

trunk. 14 Va. App. at 850-51, 419 S.E.2d at 862-63. In

Grinton, because the defendants failed to object as the search

progressed and because the challenged area of the car could

reasonably be construed to fall within the scope of the

defendants' original consent, we held the challenged search

valid. Id.; see McNair v. Commonwealth, 31 Va. App. 76, 82-85,

521 S.E.2d 303, 306-08 (1999) (en banc) (holding that where

defendant contacted police to report robbery in progress, said

robbers might still be in his residence, allowed officers to

search his two-level residence, and did not object when an

additional officer went upstairs to "search[] for clues," search

of second level for clues was within scope of defendant's

original consent); see also United States v. Rison, 946 F.2d

1497, 1500-01 (10th Cir. 1991) (holding that where defendant

consented to search of "the glove box, the trunk and the

remainder of his vehicle" and stood by without objecting when

trooper searched beneath back seat of vehicle, "it [was]

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reasonable to conclude that defendant's acquiescence indicated

that the search was within the scope of the consent"); United

States v. Espinosa, 782 F.2d 888, 892-93 (10th Cir. 1986)

(holding that where defendant consented to search of his car and

stood by as agent conducted a "thorough and systematic search"

which included removal of vehicle's back seat and raising of

car's rear quarter panel, defendant's failure to object to

search indicated search was within scope of consent).

In appellant's case, by contrast, the bag could not

reasonably be construed to fall within the scope of appellant's

original consent. Assuming appellant could have given implied

consent to a search of the bag, in addition to express consent

to a search of his person, by handing the bag directly to

Officer Reardon, see United States v. Rojas, 906 F. Supp. 120,

128 (E.D.N.Y. 1995), appellant did not do so. Instead, he set

the bag on the bed prior to the search of his person. Under

these facts, I would hold that appellant's consent to a search

of his person, coupled with his mere failure to object to the

search of the bag, was insufficient to meet the Commonwealth's

burden of proving consent. Accordingly, I conclude the trial

court erred in holding appellant's consent to the search

supported its denial of the motion to suppress.

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 B.

PROBABLE CAUSE TO ARREST

The evidence also fails to support the second theory

advanced by the Commonwealth, that the search of appellant was

constitutional because Officer Reardon had probable cause to

arrest appellant prior to conducting the search. See, e.g.,

Carter v. Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d 505, 506

(1990). 2

Where an anonymous informant provides a detailed,

predictive tip and police officers are able to corroborate

suspicious circumstances "ordinarily not easily predicted," the

evidence, taken as a whole, may be sufficient to provide

probable cause. See Illinois v. Gates, 462 U.S. 213, 242-46,

103 S. Ct. 2317, 2334-36, 76 L. Ed. 2d 527 (1983) (involving

2
The Commonwealth made this argument in the trial court and
on brief on appeal. The fact that the trial court concluded
appellant consented to the search and, thus, did not reach the
probable cause issue does not prevent us from considering that
issue on appeal where no further factual findings are necessary.
See Driscoll v. Commonwealth, 14 Va. App. 449, 451-52, 417
S.E.2d 312, 313 (1992) (holding that appellate court may affirm
ruling where trial court reached right result for wrong reason,
as long as alternate basis for affirmance was presented to trial
court and no further factual findings are necessary); see also
Hancock v. Commonwealth, 21 Va. App. 466, 469, 465 S.E.2d 138,
140 (1995) (where trial court applied erroneous intent standard
in convicting accused for possession of firearm by convicted
felon, considering, without discussing authority to do so,
whether evidence was sufficient to prove requisite intent and
reversing based on holding, as a matter of law, that it did not
prove requisite intent).

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probable cause for search warrant). By contrast, when an

officer receives an anonymous tip that a certain individual is

selling drugs at a particular location and the officer confirms

that a person matching that description is in the specified

location with others but the officer observes no behavior which

indicates drug distribution, the officer lacks probable cause

for an arrest. Carter, 9 Va. App. at 313, 387 S.E.2d at 507;

see also Hardy v. Commonwealth, 11 Va. App. 433, 435-36, 399

S.E.2d 27, 29 (1990).

Applying these principles here, I would hold that Officer

Reardon lacked probable cause to arrest appellant before he

searched the bag of socks. Although this case did not involve

observations of people engaged in innocent behavior on a public

street like in Hardy and Carter, the anonymous informant's tip

nevertheless included mostly innocent details which likely were

easily observable to anyone watching the specified motel room

for a brief period of time. Further, the tip was not truly

predictive in that the informant said merely that a person named

E. was supplying cocaine to the motel room but did not indicate

when E. would arrive or leave the room.

Finally, the information Officer Reardon gained on his own

in a search of the motel room with the occupant's consent was

insufficient to provide probable cause under the

totality-of-the-circumstances test. Although Officer Reardon

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testified that the presence of a "bunch of plastic baggies" in

the room was consistent with narcotics use or distribution and

that the presence of $250 cash in the Bible was "suspicious,"

nothing linked appellant to the plastic baggies or cash other

than his subsequent arrival in the room. Appellant was

cooperative and engaged in no furtive or unusual behavior until

Officer Reardon picked up the bag of socks. Thus, the

information known to Officer Reardon at the time he seized and

searched the bag of socks was sufficient, at best, to provide

him with reasonable suspicion for an investigative detention,

not with probable cause to arrest. See, e.g., Alabama v. White,

496 U.S. 325, 330-32, 110 S. Ct. 2412, 2416-17, 110 L. Ed. 2d

301 (1990). Because the tip was not sufficiently predictive and

Officer Reardon's independent investigation yielded only minimal

corroborative evidence relating to appellant, Officer Reardon

lacked probable cause to arrest appellant at the time he seized

and searched the bag of socks.

For these reasons, I would hold the trial court erroneously

denied the motion to suppress, and I would reverse and dismiss

appellant's conviction. Therefore, I respectfully dissent.

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