COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
JAMES DONNELL THOMAS
OPINION BY
v. Record No. 2341-00-2 JUDGE JAMES W. BENTON, JR.
APRIL 9, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
Joseph A. Sadighian, Assistant Public
Defender, for appellant.
Amy L. Marshall, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
The trial judge denied James Donnell Thomas's motion to
suppress evidence and convicted him of possession of an imitation
controlled substance with intent to distribute. Thomas contends
the evidence failed to prove the police officer had probable cause
to arrest him and that, for this reason, the trial judge erred in
not suppressing his statements. We agree and reverse the
conviction.
I.
When we review a trial judge's denial of a motion to
suppress, we are guided by the following standards:
"[T]he burden is upon [the appellant] to
show that th[e] ruling, when the evidence is
considered most favorably to the
Commonwealth, constituted reversible error."
"Ultimate questions of . . . probable cause
to make a warrantless . . . [arrest]"
involve questions of both law and fact and
are reviewed de novo on appeal. In
performing such analysis, we are bound by
the trial [judge's] findings of historical
fact unless "plainly wrong" or without
evidence to support them.
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (citations omitted).
The relevant facts are essentially undisputed. Sergeant
E.S. Jones of the Petersburg Police Department testified that he
was patrolling in a high crime area when he saw Thomas and two
other men standing near a convenience store talking. The
officer observed the men for several minutes and then approached
them because the property was posted with a "no trespassing"
sign. As he neared the men, one of them said, "[T]hat's the
police." The officer testified that when the men began to walk
away he "made contact with [two of] them." Other officers
detained the third man.
Officer Jones spoke to Thomas and one of the men "to find
out why they were on the property and . . . told them about the
trespassing signs" on the store. The officer then requested
"checks to find out if [Thomas] had any [outstanding] warrants."
While the officer was talking to one of the men, he saw Thomas
make a throwing motion with his right hand toward the back of a
soda machine. Although the officer did not see any item leave
Thomas's hand, he searched the area behind the machine where he
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"thought the item had gone." He saw litter in that area but saw
no contraband.
When the officer learned no warrants were outstanding for
Thomas, he "gave [Thomas] a warning not to come back on the
property" and "released" him. After Thomas walked away, the
officer went to the third man, whom other officers had arrested
for "drug charges." After two or three minutes had elapsed, the
officer returned to the area behind the soda machine and again
searched, "making small circles." The officer found a plastic
bag containing individually wrapped substances that appeared to
him to be crack cocaine. He testified that he found the bag
near the machine, but against a fence, where he "didn't know it
had gone." The officer then located Thomas on another street
and arrested him for possessing the substances. After the
officer read Thomas the Miranda rights, Thomas made
incriminating statements.
In denying the motion to suppress, the trial judge made no
specific findings. The evidence proved that the bag contained
ten packs of an off-white substance, which was not a controlled
substance, and that Thomas made incriminating statements about
the bag. The trial judge convicted Thomas of possession of
imitation controlled substances with the intent to distribute in
violation of Code § 18.2-248.
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II.
The principle is long standing and "basic that an arrest
. . . without a warrant must stand upon firmer ground than mere
suspicion." Wong Sun v. United States, 371 U.S. 471, 479
(1963). The Supreme Court "repeatedly has explained that
'probable cause' to justify an arrest means facts and
circumstances within the officer's knowledge that are sufficient
to warrant a prudent person, or one of reasonable caution, in
believing . . . that the suspect has committed, is committing,
or is about to commit an offense." Michigan v. DeFillippo, 443
U.S. 31, 37 (1979). Thus, the Court has held that "[a]rresting
a person on suspicion, like arresting a person for
investigation, is foreign to our system." Papachristou v. City
of Jacksonville, 405 U.S. 156, 169 (1972). "[P]robable cause
. . . must be based on more than speculation, suspicion, or
surmise." Alexander v. Commonwealth, 19 Va. App. 671, 674, 454
S.E.2d 39, 41 (1995).
Although the officer saw Thomas make a throwing motion, he
did not see what left Thomas's hand, if anything. When he
looked where he thought a discarded object might have landed, he
saw litter but no contraband. Later, when he returned to the
machine and looked in a place where he had not expected a
discarded item to land, he saw the plastic bag. The record
indicates only that it was against "a chain-link fence . . .
between the store and the [adjacent] property." These facts
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render only a suspicion that Thomas threw the plastic bag the
officer found. Thomas's hand motion "was not combined with any
other circumstance which might have justified a rational belief"
that Thomas had thrown the bag containing the imitation
substance. Matthews v. Commonwealth, 218 Va. 1, 3, 235 S.E.2d
306, 307 (1977). The officer's conclusion that Thomas threw the
bag was grounded only on suspicion because he had found a
variety of ordinary litter behind the machine when he looked
where he thought Thomas had thrown something. Accordingly, we
hold that the evidence failed to establish probable cause for
the arrest.
An arrest made without a warrant or without probable cause
is made in violation of the Fourth Amendment. Dunaway v. New
York, 442 U.S. 200, 219 (1979). Where there has been an arrest
without probable cause, "the burden of showing admissibility [of
an ensuing statement] rests, of course, on the prosecution."
Brown v. Illinois, 422 U.S. 590, 604 (1975) (footnote omitted).
In meeting its burden, the prosecution must produce evidence
"not merely that the statement meet[s] the Fifth Amendment
standard of voluntariness but that it [is] 'sufficiently an act
of free will to purge the primary taint'" of the unlawful
arrest. Id. at 602 (quoting Wong Sun, 371 U.S. at 486). Here,
the officers arrested Thomas "for possession of cocaine based on
the item . . . found [behind the soda machine]," took him to the
police station, read him Miranda warnings, and obtained
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admissions. As in Dunaway, "[n]o intervening events broke the
connection between [the] illegal detention and [the]
confession." 442 U.S. at 219. The evidence showed that the
statement was made temporally proximate to the arrest, that no
circumstances of any consequence intervened between the arrest
and the statement, and that the questioning flowed directly from
the discovery of the cocaine and the officer's attempt to tie
the cocaine to Thomas. Because the evidence does not establish
that the connection between the arrest and the statement was so
attenuated as to purge the taint of the unlawful arrest, we hold
that the Commonwealth did not sustain its burden of showing the
evidence was admissible. "To admit [Thomas's] confession in
such a case would allow 'law enforcement officers to violate the
Fourth Amendment with impunity, safe in the knowledge that they
could wash their hands in the "procedural safeguards" of the
Fifth [Amendment].'" Id. (citation and footnote omitted).
For these reasons, we hold the trial judge erred in not
suppressing Thomas's statement. Accordingly, we reverse the
conviction and dismiss the indictment.
Reversed and dismissed.
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