Kidd v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia

ANTONIO LAMONT KIDD
OPINION BY
v. Record No. 1887-00-2 JUDGE ROBERT J. HUMPHREYS
JULY 2, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James E. Kulp, Judge Designate

Christine A. Cestaro, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.

Jennifer R. Franklin, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.

Antonio Lamont Kidd appeals his conviction, after a bench

trial, for possession of cocaine with intent to distribute, in

violation of Code § 18.2-248. Kidd contends that the trial court

erred in refusing to grant his motion to suppress the evidence

against him, and in finding the evidence sufficient as a matter of

law to sustain the conviction.

I.

On appeal of a motion to suppress and where the sufficiency

of the evidence as a matter of law is questioned, we view the

evidence in the light most favorable to the Commonwealth, granting

to it all reasonable inferences fairly deducible from the
evidence. 1 In addition, when we review the trial judge's refusal

to suppress evidence, we consider the "evidence adduced at both

the trial and the suppression hearing." 2

So viewed, the evidence presented below established that on

January 1, 2000, between 2:00 a.m. and 3:00 a.m., City of Richmond

Police Officer James Hannah was patrolling an area near Mosby

Court and Raven Street. Hannah had gotten out of his patrol car

and was patrolling the area on foot when he observed Kidd,

standing in the shadows about 100 yards away, leaning against a

wall near some apartments. As Hannah watched Kidd, he observed

one gentleman "coming in and out of an apartment" located to the

right of where Kidd was standing. The gentleman "went in and out

a couple times" and "kept going up to [Kidd]." Hannah then saw "a

couple women [sic] come from around the front of the building and

walk up to [Kidd]." Hannah testified "they seemed to all have a

conversation with [Kidd]. . . . There was a hand-to-hand

transaction - well, some hand-to-hand movements between one

woman." The woman then left, while the other woman stayed behind.

Hannah testified that "[t]hen there was a hand-to-hand with them,

then she left around the opposite side of the building. . . ."

Hannah could not see the items that were being exchanged.

1
See Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975).
2
Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d
138, 139 (1994).

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 Hannah subsequently radioed members of his unit, who were in

a van nearby. He notified them that he had observed a man fitting

Kidd's description behind the apartments on Raven Street, near the

stoop, and that he had observed what he believed to have been a

hand-to-hand transaction, "possibly a drug transaction."

Approximately five seconds later, Officer John Cary and

another officer arrived on the scene. The officers first noticed

that the ground near where Kidd was standing was "littered" with

"over hundreds" of shell casings from what appeared to be

"semi[-]automatic pistol fire and shotgun shells, empty shotgun

shells that had been expended." 3 Cary observed Kidd standing on

the stoop at the back of the apartment building. There was

another man standing beside Kidd. Cary saw Kidd hand the man what

"looked like a large wad of money." The man then went into the

nearby apartment.

At that point, Kidd had "his right hand in his right side."

He then sat down on the stoop and rolled over onto his right side,

still keeping his right hand out of the officers' sight. Because

3
At trial, Kidd objected to the admission of any evidence
concerning the shell casings, contending "that it [was] not
relevant to the issue in this case, which [was] that he did
possess cocaine with intent to distribute." In this context,
the trial court ordered all such evidence stricken from the
record. Nevertheless, the evidence concerning the shell casings
was admitted, without objection, during the initial hearing on
the motion to suppress. Thus, we consider it for purposes of
our review of the ruling on the motion to suppress. We do not
consider it for purposes of reviewing the trial court's ruling
concerning Kidd's guilt.

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of the shell casings on the ground and because the officers had

heard shooting in the area shortly before they approached Kidd,

Cary asked to see both of Kidd's hands. Cary testified "that

[Kidd] was still fidgeting around with his right hand and then he

eventually produced it."

Cary asked Kidd to stand. Kidd, who was wearing drawstring

sweatpants stood and Cary immediately observed an "abnormal

protrusion" in the "front of [Kidd's] crotch area." At that time,

Cary began to pat Kidd down, patting down his crotch area first,

as he suspected the item was a weapon. Cary felt that the object

had a hard edge, but did not know what it was. He then pulled

Kidd's "sweatpants back" and saw it was a change purse, with a

zipper on one edge. The purse was tied to one of the drawstrings,

and Cary used the string to draw the purse out of Kidd's

sweatpants. Kidd then stated, "that's all I've got, you can check

me." In response, Cary pulled back Kidd's sweatpants once again,

"grabbed the inside of [Kidd's] boxer[] [shorts] and pulled [them]

out the same way [he had pulled] his sweatpants and looked

inside." He found a plastic baggie with individual baggies inside

of it, just above Kidd's genital area. Cary testified that he

could see the top of Kidd's genitals when he conducted the search.

Cary removed the baggie and later determined that it

contained 36 individual baggies holding a total of 2.984 grams of

cocaine. Cary found $30.00 in the change purse.

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 Prior to trial, Kidd filed a motion to suppress the evidence

against him, arguing Kidd was unlawfully detained and searched,

and that the officers unlawfully conducted a strip search and

visual body cavity search. The trial court denied the motion.

At trial, Officer Hannah, who was qualified as an expert to

testify regarding drug distribution, testified that the items

found on Kidd's person were not consistent with personal drug use.

Hannah based his opinion on the manner in which the cocaine was

packaged. He testified that "the dosage in each one is – each

individual hit would be like taking a dosage." Hannah further

testified that the Raven Street area was a high-crime area, with

"a lot of shootings . . . [and] a whole lot of drug activity

. . . ."

At the close of the Commonwealth's evidence, Kidd once again

raised a motion to suppress, arguing the same grounds as before.

The trial court again denied the motion, on the basis of our

holding in Hughes v. Commonwealth, 31 Va. App. 447, 458, 524

S.E.2d 155, 161 (2000), finding that Kidd voluntarily consented to

a pat-down search of his underwear and that there was no body

cavity search.

Finally, Kidd raised a motion to strike at the close of

evidence, contending that the Commonwealth failed to establish he

intended to distribute the drugs. The trial court denied the

motion, finding the amount of the drugs and the packaging

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sufficient evidence of intent, and found Kidd guilty of the

charge.

II.

On appeal, Kidd first argues the trial court erred in

refusing to grant his motion to suppress on the ground that he was

illegally detained. Kidd contends that he was detained at the

point Officer Cary asked him to stand and show his hands.

The Fourth Amendment to the Federal Constitution provides

that "[t]he right of the people to be secure in their persons,

. . . and effects, against unreasonable searches and seizures,

shall not be violated." 4 Thus, "[i]t is firmly established that

warrantless searches and seizures are per se unreasonable, subject

only to a few specifically-established and well-delineated

exceptions." 5 "'[T]he Commonwealth has the burden of proving the

legitimacy of a warrantless search and seizure.'"6 Moreover,

"[w]hether the Fourth Amendment has been violated '"is a question

of fact to be determined from all the circumstances."'" 7

4
U.S. Const. amend. IV.
5
Reittinger v. Commonwealth, 260 Va. 232, 235, 532 S.E.2d
25, 27 (2000).
6
Id. at 235-36, 532 S.E.2d at 27 (quoting Simmons v.
Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989)).
7
Id. (quoting Ohio v. Robinette, 519 U.S. 33, 40 (1996)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49
(1973))).

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 The Commonwealth concedes that the initial encounter

between Kidd and Officer Cary was "non-consensual." Therefore,

"[i]n order to justify [the] seizure, [Officer Cary] must have

[had] a 'reasonable and articulable suspicion of criminal

activity on the part of the defendant.'" 8 In justifying the

particular intrusion the police officer must be able to point to

specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant that

intrusion. 9 To establish this, "[a] general suspicion of some

criminal activity is enough, as long as the officer can, based

on the circumstances before him at the time, articulate a

reasonable basis for his suspicion." 10 Moreover, "[w]hen

determining if reasonable suspicion exists, courts must consider

that '[t]rained and experienced police officers . . . may be

able to perceive and articulate meaning in given conduct which

would be wholly innocent to the untrained observer.'" 11

Here, it is clear that Officer Cary had sufficient

reasonable suspicion that criminal activity was afoot to support

8
Hatcher v. Commonwealth, 14 Va. App. 487, 490, 419 S.E.2d
256, 258 (1992) (quoting Commonwealth v. Holloway, 9 Va. App.
11, 15, 384 S.E.2d 99, 101 (1989)).
9
Id.
10
Id.
11
Buck v. Commonwealth, 20 Va. App. 298, 302-03, 456 S.E.2d
534, 536 (1995) (quoting Richards v. Commonwealth, 8 Va. App.
612, 616, 383 S.E.2d 268, 271 (1989)).

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a lawful detention of Kidd. Moreover, contrary to Kidd's

argument, the fact that Hannah did not see and could not

identify the items that were exchanged in the hand-to-hand

transactions he observed, does not preclude a finding of

reasonable suspicion under these circumstances. 12

Kidd next argues that Officer Cary conducted an unlawful

pat-down of his person. However, "[u]nder settled principles,

once an officer has lawfully detained an individual, 'he is

"authorized to take such steps as [are] reasonably necessary to

protect [his and others'] personal safety and to maintain the

status quo during the course of the [detention]."'" 13

An officer may preserve the status quo by
ordering the person detained to place his
hands where the officer can see them.
Additional information may provide the basis
for a frisk of the person for weapons. An
officer "may conduct a limited pat-down
search of the suspect's outer clothing to
search for weapons if the officer reasonably
believes, based on specific and articulable
facts, that the suspect might be armed and
dangerous." . . . Additional factors

12
See DePriest v. Commonwealth, 4 Va. App. 577, 585, 359
S.E.2d 540, 543-44 (1987) (holding that where an officer
observed appellant over a three and a half hour period engaging
in hand-to-hand contact with multiple people and exchanging
money and other objects with multiple people, the events
observed established a reasonable suspicion of criminal
activity; and, that a sequence of events which is typical of a
common form of narcotics transaction may create a suspicion in a
police officer's mind).
13
Welshman v. Commonwealth, 28 Va. App. 20, 34, 502 S.E.2d
122, 128-29 (1998) (quoting Servis v. Commonwealth, 6 Va. App.
507, 519, 371 S.E.2d 156, 162 (1988) (quoting United States v.
Hensley, 469 U.S. 221, 235 (1985))).

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 appropriate for consideration may include
the reputation of the neighborhood as a
high-crime area. 14

Indeed, "[i]n deciding whether to make a stop or effect a pat-down

search, an officer is 'entitled to rely upon the totality of the

circumstances-the whole picture.'" 15 "The totality of the

circumstances includes 'the character of the offense.'" 16 This

Court has held that "'suspicion of narcotics possession and

distribution . . . gives rise to an inference of

dangerousness.'" 17 Thus, the protective pat-down search

conducted here was reasonable in light of the fact that Cary had a

reasonable suspicion that Williams was presently engaged in

narcotics distribution, as well as the facts that the area was

known as a high-crime area, that the officers had recently heard

gunshots in the area, and that there were "hundreds" of "spent"

shell casings "littering" the ground near where Kidd was standing.

On these facts, Cary clearly had reason to believe that Kidd might

be armed

14
Id. (quoting Phillips v. Commonwealth, 17 Va. App. 27,
30, 434 S.E.2d 918, 920 (1993)) (citations omitted).
15
Peguese v. Commonwealth, 19 Va. App. 349, 351, 451 S.E.2d
412, 413 (1994) (quoting Lansdown v. Commonwealth, 226 Va. 204,
212, 308 S.E.2d 106, 112 (1983)).
16
Id. at 351-52, 451 S.E.2d at 413 (quoting Williams v.
Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87 (1987)).
17
Id. (quoting Williams, 4 Va. App. at 67, 354 S.E.2d at
87) (emphasis in original).

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and dangerous, and that the "abnormal protrusion" he observed

might be a weapon. 18

III.

Kidd next argues that Cary conducted a "warrantless and

unlawful strip search" of his person. We first note that "the

Fourth Amendment right to be free from unreasonable seizures may

be waived, orally or in writing, by voluntary consent to a

warrantless search of a person, property or premises." 19 Here,

Kidd apparently concedes that his statement to Cary "that's all

I've got, you can check me," amounted to a consent to search.

However, Kidd argues that the consent to search did not equate

to a consent to conduct a strip search or "body cavity" search.

"A search of the person may range from a Terry-type

pat-down to a generalized search of the person to the more

intrusive strip search or body cavity search. 'A strip search

generally refers to an inspection of a naked individual, without

any scrutiny of his body cavities. A visual body cavity search

extends to a visual inspection of the anal and genital areas.'" 20

18
Kidd raises no argument concerning the lawfulness of
Officer Cary's seizure of the coin purse, after he had viewed it
and determined that it was not a weapon. Accordingly, we do not
address this issue on appeal. See Rule 5A:18.
19
Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d
877, 879 (1998).
20
Hughes, 31 Va. App. at 455, 524 S.E.2d at 159 (quoting
Commonwealth v. Thomas, 708 N.E.2d 669, 672 n.4 (Mass. 1999));
see also McCloud v. Commonwealth, 35 Va. App. 276, 282-83, 544
S.E.2d 866, 868-69 (2001).

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"'A "manual body cavity search" includes some degree of touching

or probing of body cavities.'" 21

Here, Kidd was subjected to only a "strip search." Looking

into Kidd's underwear for drugs was a strip search of his person

within the purview of the Fourth Amendment, as Cary did nothing

more than inspect Kidd's partially-naked body. 22 He did not

scrutinize Kidd's body cavities as Kidd suggests.

"We held in Moss v. Commonwealth, 30 Va. App. 219, 225, 516

S.E.2d 246, 249 (1999), that a defendant's consent to search his

person does not include consent to conduct a strip search."23

"[S]trip searches, which are 'peculiarly intrusive,' are

constrained by due process requirements of reasonableness and

require 'special justification.'" 24 However, it is well settled

that "[a] consensual search is reasonable if the search is within

21
Id. (quoting Cookish v. Powell, 945 F.2d 441, 444-45 n.5
(1st Cir. 1991)).
22
See id. Compare McCloud, 35 Va. App. at 283-84, 544
S.E.2d at 869 (holding a search did not fall within the
definition of a strip search where the officer merely pulled
back the defendant's boxer shorts, only reached two inches into
the shorts to remove the contraband, and did not see the
defendant's genitalia).
23
Id. at 456, 524 S.E.2d at 160.
24
Id. at 457, 524 S.E.2d at 160 (quoting Taylor v.
Commonwealth, 28 Va. App. 638, 642, 507 S.E.2d 661, 663 (1998)).

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the scope of the consent given." 25 In this case, Cary lawfully

conducted the initial pat-down search, which Kidd was aware

focused mainly on his crotch area, and which included a search of

his sweatpants. Kidd then volunteered that he had nothing further

and consented to Cary's continued search of his person. We find,

on these facts, that Kidd voluntarily consented to the search of

his underwear when he stated "go ahead check me," and that the

search conducted thus did not exceed the scope of the consent in

light of the attendant circumstances.26

IV.

Finally, Kidd argues that the evidence presented by the

Commonwealth was insufficient to establish that he intended to

distribute the cocaine. We disagree.

When a defendant challenges the
sufficiency of the evidence on appeal, the
reviewing court must give the judgment of
the trial court sitting without a jury the
same weight as a jury verdict. The
appellate court has the duty to examine the
evidence that tends to support the
conviction and to uphold the conviction
unless it is plainly wrong or without
evidence to support it. 27

"Circumstantial evidence is as competent and is entitled to

as much weight as direct evidence, provided it is sufficiently

25
Grinton v. Commonwealth, 14 Va. App. 846, 850, 419 S.E.2d
860, 862 (1992).
26
See Hughes, 31 Va. App. at 458, 524 S.E.2d at 161.
27
Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d
761, 763 (2001) (citations omitted).

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convincing to exclude every reasonable hypothesis except that of

guilt." 28 Nevertheless, the Commonwealth "is not required to

disprove every remote possibility of innocence, but is, instead,

required only to establish guilt of the accused to the exclusion

of a reasonable doubt." 29 The hypotheses which the prosecution

must reasonably exclude are those "which flow from the evidence

itself, and not from the imagination of defendant's counsel." 30

"The principle is well established in Virginia that a

relatively small quantity of cocaine warrants the inference that

an accused possessed it for personal use." 31 Here, the police

seized only 2.9 grams of cocaine from Kidd's person. However,

"[p]ossession of a small quantity of a controlled

substance, . . . when considered with other circumstances, may

be sufficient to establish an intent to distribute." 32 The

method of packaging of the controlled substance is such a

circumstance, if considered in conjunction with additional

evidence, to preclude the inference that it was purchased in the

28
Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983).
29
Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d
328, 338 (1988).
30
Id. at 289-90, 373 S.E.2d at 338-39 (citation omitted).
31
Christian v. Commonwealth, 33 Va. App. 704, 721, 536
S.E.2d 477, 486 (2000).
32
Servis, 6 Va. App. at 524, 371 S.E.2d at 165 (emphasis
added).

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packaged form for personal use, rather than being held in that

fashion for distribution. 33 "Possession of a large sum of money,

especially in small denominations, and the absence of any

paraphernalia suggestive of personal use, . . . are regularly

recognized as [other] factors indicating an intent to

distribute." 34 Further, the characterization of the area in

which an accused was arrested as an area known for drug

transactions has been found to be another relevant factor in

determining intent. 35

This record provides abundant evidence that Kidd possessed

cocaine with the intent to distribute it. Kidd was observed

engaging in "hand-to-hand" transactions in an area known for

illegal drug activity, and he was seen handing an individual a

"large wad of cash." In addition, 36 individual baggies, each

containing one "dose" of cocaine were found on his person, and

although only $30.00 was found in the change purse, Kidd had no

drug paraphernalia on him indicating personal use. Thus, we

hold that the trial court was not plainly wrong in finding the

evidence sufficient as a matter of law to establish Kidd's

possession of the cocaine with the intent to distribute it.

33
Id.
34
Welshman, 28 Va. App. at 37, 502 S.E.2d at 130.
35
See Brown v. Commonwealth, 15 Va. App. 232, 234, 421
S.E.2d 911, 912 (1992).

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 For the foregoing reasons, we affirm the judgment of the

trial court.

Affirmed.

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Benton, J., dissenting.

In Hughes v. Commonwealth, 31 Va. App. 447, 453, 524 S.E.2d

155, 158 (2000), an officer conducting a Terry stop obtained

consent for "a pat-down search." At the conclusion of that

search, the officer told the detainee, "if the money is in your

left pocket, then, the drugs should be in your underwear." Id.

The detainee then "agreed to allow [the officer] to 'check

further.'" Id. In Hughes, we held "on these facts, that [the

detainee] voluntarily consented to a pat-down search and to a

search of his underwear to 'check further.'" Id. at 458, 524

S.E.2d at 161.

Significantly, in Hughes, we noted that in the absence of

such a specific consent to a strip search, "[w]e held in Moss v.

Commonwealth, 30 Va. App. 219, 225, 516 S.E.2d 246, 249 (1999),

that a defendant's consent to [a] search [of] his person does

not include consent to conduct a strip search." Hughes, 31

Va. App. 456, 524 S.E.2d at 160. I believe our holding in Moss

controls our judgment on the search in this case.

The evidence in this case proved that, after the police

officer saw a bulge in Kidd's pants, the officer patted that

area during a protective search for weapons. During that frisk,

the officer removed a change purse from between Kidd's

sweatpants and underpants. He did not expose Kidd's genitalia

or reach inside his underwear. In response to Kidd's comment,

"That is all I got; you can check," the officer put his fingers

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inside Kidd's underwear, pulled Kidd's underwear away from

Kidd's body, and looked inside Kidd's underwear to inspect his

genitalia. There, he saw a bag of cocaine. In Moss, we ruled

as follows:

There is no evidence that . . . consent
to a "search of his person" extended to a
strip search or a body cavity search. The
Commonwealth's reliance upon consent for
this intrusion is misplaced. Additionally,
the Commonwealth does not satisfy the
additional requirements for such an
intrusion without consent or without a
warrant. We do not address issues
concerning the place and manner of the
search because we find that there was not a
"clear indication" that drugs were located
in [the genital area], and we find no
exigent circumstances justifying a strip
search . . . without a warrant.

30 Va. App. at 225, 516 S.E.2d at 249.

Applying the same rationale to the facts of this case, I

would hold, as we did in Moss, "that the strip search . . . was

impermissible and that the trial [judge] erred in refusing to

suppress the evidence obtained from the search." Id. at 226,

516 S.E.2d at 250. Accordingly, I would reverse the conviction

and remand for a new trial.

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