COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia
JAMES RUSSELL ROYAL
OPINION BY
v. Record No. 0062-01-1 JUDGE ROBERT P. FRANK
JANUARY 29, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Richard C. Kerns for appellant.
Stephen R. McCullough, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
James Russell Royal (appellant) was convicted in a bench
trial of possession of cocaine, in violation of Code § 18.2-250.
On appeal, he contends the trial court erred in denying his motion
to suppress, claiming the police had neither consent nor probable
cause to search him. For the reasons stated, we reverse the
conviction.
I. BACKGROUND
In the early morning of July 20, 1999, Newport News Police
Officer R.O. Davis and his partner responded to a call about a
"suspicious vehicle" parked at an open gas station. The record
does not contain any information about why the vehicle was
considered "suspicious," whether the station was located in an
area with a high crime rate, or if drug sales frequently occurred
there. When the officers arrived, they observed three men in a
car, parked beside the gas pumps. Appellant was in the front
passenger seat.
While the driver gave the officers a name that at some point
proved false, the information that appellant provided was correct.
When Davis asked appellant to step out of the car, "he agreed to
do so." Appellant also consented to a search of his person.
Davis patted him down for weapons or contraband and found nothing.
Appellant then agreed to sit in the police vehicle while Davis
returned to the car by the gas pump. Appellant was not
handcuffed. Davis acknowledged he saw no suspicious activity at
that time.
Davis later noticed that appellant, still seated alone in the
police car, was chewing something. Appellant was gasping, and "it
wasn't just normal chewing like he was chewing gum, but looked
like he tried to swallow something." Davis became concerned
because his "experience with people that [he] arrest[s] with drugs
is they attempt to swallow crack cocaine or marijuana."
Davis asked appellant if he was eating cocaine. Appellant
denied he was eating any drugs and stated "he had a dollar bill in
his mouth which he was eating." Appellant refused to spit out the
bill. Davis testified he did not attempt to open appellant's
mouth, but he did call for medical assistance. At this point,
appellant was not under arrest.
- 2 -
In Davis's experience, dollar bills are "normally used to
carry cocaine or marijuana. . . . [T]he individuals will place
rocks of cocaine in dollar bills or marijuana in dollar bills
attempting to conceal the drug." Davis decided "to check him
again, just in case he did have something and he tried to eat
that."
Without requesting or receiving any additional consent, Davis
searched appellant and found some cocaine and marijuana when he
reached into appellant's pants pocket. He never searched
appellant's mouth nor did he recover anything from his mouth.
After Davis recovered the drugs from the pocket, he placed
appellant in handcuffs and advised him of his Miranda rights.
Medical assistance arrived and transported appellant to a
hospital. While at the hospital, appellant told Davis that he was
selling cocaine to make money for his girlfriend. At trial,
appellant denied making any inculpatory statements and claimed
Davis planted the drugs on him. He further denied consenting to
the initial search and denied consenting to sit in the police
vehicle. Appellant testified he was chewing "tobacco gum."
Appellant moved to suppress the cocaine, contending that the
act of chewing and "apparent swallowing of [sic] something" did
not constitute probable cause to search appellant. 1 He also
1
Appellant does not contest on appeal the consent for the
initial search nor the consent to sit in the police vehicle.
- 3 -
argued the initial consent to search did not extend to the second
search of his pocket. The trial court denied the motion with no
explanation.
II. ANALYSIS
Appellant argues the trial court erred in denying his motion
to suppress. He contends his Fourth Amendment rights were
violated when Davis conducted a second search, reaching into his
pocket and finding a rock of crack cocaine. He does not argue the
first pat-down search was unconstitutional. The Commonwealth
argues appellant consented to the second search and,
alternatively, the officer had probable cause to search
appellant's pockets for drugs. 2
Where, as here, officers did not obtain a search warrant
before reaching into appellant's pocket, the Commonwealth must
prove during the motion to suppress that (1) exigent
circumstances 3 and probable cause existed or (2) the suspect gave
his consent, before the trial court can deny the motion to
suppress. Jefferson v. Commonwealth, 27 Va. App. 1, 16, 497
2
The Commonwealth also argues "exigent circumstances" as a
separate justification for the search. However, exigent
circumstances only provide an exception to the constitutional
preference for the issuance of a warrant before a search;
exigencies do not obviate the need for probable cause to justify
a search. Hill v. Commonwealth, 18 Va. App. 1, 4, 441 S.E.2d
50, 51 (1994). See also Hayes v. Commonwealth, 29 Va. App. 647,
655-56, 514 S.E.2d 357, 361 (1999). As appellant does not argue
that the officer needed a warrant, this argument is not relevant
to the analysis here.
3
Appellant limited his argument to probable cause.
- 4 -
S.E.2d 474, 481 (1998). The standard for reviewing such cases is
clear:
On appeal of a motion to suppress, the
defendant has the burden of proving that a
warrantless search violates his Fourth
Amendment rights. See Fore v. Commonwealth,
220 Va. 1007, 1010, 265 S.E.2d 729, 731,
cert. denied, 449 U.S. 1017 (1980). We view
the evidence in the light most favorable to
the Commonwealth, granting to it all
reasonable inferences fairly deducible from
the evidence. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d
534, 537 (1975). "Ultimate questions of
reasonable suspicion and probable cause to
make a warrantless search" involve questions
of both law and fact and are reviewed de
novo on appeal. Ornelas v. United States,
517 U.S. 690, 699 (1996). We review de novo
the application of defined legal standards
to the particular facts of a case. See id.
Taylor v. Commonwealth, 28 Va. App. 638, 641-42, 507 S.E.2d 661,
663 (1998).
A. CONSENT TO SEARCH A PERSON
The question of whether a defendant gave an officer consent
to search "is a factual question to be determined by the trier of
fact," receiving great deference from this Court. Jean-Laurent v.
Commonwealth, 34 Va. App. 74, 79, 538 S.E.2d 316, 318 (2000).
Here, however, the trial court made no factual finding regarding
appellant's consent to the search, and we cannot infer a finding
based on this record. 4 Therefore, while we do examine the
4
The trial court simply denied the motion to suppress,
without stating the reason for the denial. The Commonwealth
argued two independent reasons, consent and probable cause, as
permissible justifications for the search.
- 5 -
evidence in the light most favorable to the Commonwealth, the
party prevailing below, see Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991), we cannot defer to the
factual findings of the trial court.
"The standard for measuring the scope of a suspect's consent
under the Fourth Amendment is that 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 (1991). See also Lawrence v.
Commonwealth, 17 Va. App. 140, 145, 435 S.E.2d 591, 594 (1993),
aff'd, 247 Va. 339, 443 S.E.2d 160 (1994).
Appellant consented to the initial search, which was
concluded before appellant took a seat in the officer's vehicle.
The Commonwealth argues this consent, given for the first
search, extended to the second search, which occurred after the
officer left appellant alone in the police car. However, Davis
did not testify that his initial search was incomplete or that
the second search was in some way a continuation of the first.
It clearly was not. The officer had concluded his initial
pat-down search of appellant and returned to the "suspicious"
vehicle, leaving appellant alone in the police car.
While consent provides a reasonable basis for a search
until it is revoked, this principle presumes a continuing search
or permission for intermittent searches. See McNair v.
Commonwealth, 31 Va. App. 76, 84-85, 521 S.E.2d 303, 307-08
- 6 -
(1999) (en banc) (discussing consent to a continuing robbery
investigation); Lawrence, 17 Va. App. at 146, 435 S.E.2d at
594-95 (noting consent remains valid during the continuation of
a search); State v. Koucoules, 343 A.2d 860, 871-72 (Me. 1974)
(explaining that consent may apply to a search conducted after a
temporary recess; however, it does not apply to searches
conducted after the conclusion of the initial search for which
consent was obtained). As an Illinois appellate court
explained, "[I]t is only reasonable to presume that [an
appellant] then believed [after the first search] that the
purpose of the consent had been fulfilled and that no reason
then existed to register a formal revocation." People v.
Shelton, 442 N.E.2d 928, 932 (Ill. App. Ct. 1982).
Officer Davis neither requested nor was given permission to
search appellant's pockets after completion of the first
pat-down. Therefore, we hold the officer did not have
appellant's consent to conduct the second search.
B. PROBABLE CAUSE TO SEARCH
Although the police did not have consent, the trial court's
denial of the motion to suppress would not be erroneous if the
second search was based on probable cause to believe appellant
was engaged in or concealing evidence of a crime. The ultimate
question of whether the officer had probable cause to reach into
appellant's pocket involves issues of both law and fact and is
- 7 -
reviewed de novo. See Jones v. Commonwealth, 32 Va. App. 30,
38, 526 S.E.2d 281, 285 (2000).
"'[P]robable cause is a flexible, common-sense standard
[which] merely requires that the facts available to the officer
would "warrant a man of reasonable caution in the belief" . . .
that certain items may be . . . useful as evidence of a crime.'"
Camden v. Commonwealth, 17 Va. App. 725, 728, 441 S.E.2d 38, 40
(1994) (quoting Texas v. Brown, 460 U.S. 730 (1983)). However,
probable cause "must be based on more than speculation,
suspicion, or surmise that a crime might be in progress."
Alexander v. Commonwealth, 19 Va. App. 671, 674, 454 S.E.2d 39,
41 (1995). See also Grimstead, 12 Va. App. at 1069, 407 S.E.2d
at 49.
Even viewing the evidence in the light most favorable to
the Commonwealth, the facts supporting a finding of probable
cause are minimal. Although the officers were dispatched 5 to the
gas station to investigate "a suspicious vehicle," the record
contains no details explaining why the car was allegedly
suspicious. In fact, Davis testified, "They [appellant and his
companions] were just sitting on the property. They didn't
appear to be pumping any gas. The people inside [the car] were
just sitting there. They wasn't [sic] approaching the clerk.
They were just on the property." The car was legally parked
5
The record contains no information about the informant who
reported "suspicious" behavior.
- 8 -
beside a gas pump, with appellant sitting in the front
passenger's seat. The officer further testified he observed
nothing unusual. The record does not suggest that the gas
station was located in a high crime or drug area.
Appellant was cooperative and did nothing suspicious until
Officer Davis noticed "[h]e was chewing on something in his
mouth. . . . It looked like – it wasn't just normal chewing like
he was chewing gum, but looked like he tried to swallow
something, like he was gasping and trying to swallow something."
He testified, from his "experience with people that [he had]
arrest[ed] with drugs, they attempt to swallow crack cocaine or
marijuana."
When Davis asked about the chewing, appellant replied, "he
had a dollar in his mouth which he was eating." Davis "found
that to be strange. Why would [anyone] eat a dollar bill?" He
did not question appellant any further. 6
Davis then asked appellant to spit out the bill, and
appellant refused. The officer explained, "From my experience
in drug arrests, the individuals will place rocks of cocaine in
dollar bills or marijuana in dollar bills attempting to conceal
the drug."
6
Whatever was in appellant's mouth was never recovered.
- 9 -
At this point, the officer searched appellant again by
reaching into his pockets, where he discovered a rock of
cocaine.
This case does not involve a situation where drugs were
found or suspected prior to the suspicious behavior, such as an
allegation of drug possession from an informant, incidents
occurring in a high crime or drug dealing area, or a prior
discovery of drugs. Appellant was not under arrest for
possession of drugs nor does the record contain evidence of
drugs in the car or in his companions' possession. In the two
cases cited by the Commonwealth as applicable to this case, some
suspicious circumstance beyond a suspect's behavior did exist to
support an inference of drug possession. In particular, a
finding of probable cause was made in both cases based on the
drug context in which the officers were performing their duties. 7
For example, in Buck v. Commonwealth, 20 Va. App. 298, 300,
456 S.E.2d 534, 535 (1995), officers "were patrolling a high
crime area where drug sales frequently occur." (Emphasis
added.) The officers also saw Buck "quickly place[] his closed
7
We do not suggest that a "drug context" is a necessary
requirement for finding reasonable suspicion or probable cause.
A police officer may draw on his experience with drug offenses
to support reasonable suspicion or probable cause based on his
or her observations in whatever context. We simply refer to a
"drug context" as a factor to be considered in the "totality of
the circumstances." See McGuire v. Commonwealth, 31 Va. App.
584, 593, 525 S.E.2d 43, 48 (2000); Ford v. Commonwealth, 28 Va.
App. 249, 255, 503 S.E.2d 803, 805-06 (1998).
- 10 -
fist to his mouth and beg[in] to run. . . . During the scuffle
[after the chase], the appellant was making a chewing motion."
Id. at 301, 456 S.E.2d at 535. This Court found the officers
did not violate Buck's Fourth Amendment rights by forcing him to
spit out the packet of cocaine in his mouth. Id. at 303-04, 456
S.E.2d at 536-37.
Here, appellant was not in an area where drug dealing or
crime frequently occurred. He did not flee from the police, as
Buck did, but instead initially cooperated with Davis.
Appellant's behavior prior to the chewing did not give the
officer "reason to believe appellant had just bought or sold
drugs," as Buck's behavior in the open air drug market did. Id.
at 303, 456 S.E.2d at 536.
Additionally, the officer who observed Buck's chewing
testified that, in his experience, "It's very common for people
to eat cocaine whenever we approach them." Id. at 304, 456
S.E.2d at 536. In the other case cited by the Commonwealth, an
officer also testified he "had seen the hand-to-mouth movement
dozens of times, characterizing it as the manner in which drugs
are destroyed before the police can seize them." 8 Purdie v.
Commonwealth, 36 Va. App. 178, 184, 549 S.E.2d 33, 36 (2001).
8
The officer was attempting to search Purdie, who kept
"gathering" something in his pocket, when Purdie put his hand to
his mouth and swallowed something. Purdie v. Commonwealth, 36
Va. App. 178, 183, 549 S.E.2d 33, 36 (2001).
- 11 -
In this case, however, Officer Davis testified, "From my
experience in drug arrests, the individuals will place rocks of
cocaine in dollar bills or marijuana in dollar bills attempting
to conceal the drug." While the officer's statement may be
true, this testimony did not apply to the factual situation
before the trial court.
First, neither appellant nor anyone with him was under
arrest for possession of illegal drugs. According to Davis's
testimony, when people are placed under arrest, they attempt to
destroy evidence by swallowing it. However, appellant was not
under arrest for drug possession or any other offense, nor were
any of his companions under arrest. 9 Nothing in the record
suggests Davis confronted appellant in circumstances that even
hinted at drug possession. The officer's testimony, therefore,
provided no basis to believe the appellant was swallowing
evidence after the initial search, when the investigation had
turned away from him.
The Commonwealth also cites Purdie v. Commonwealth as
controlling this case. However, the facts in Purdie also
involved suspicion of danger and illegal narcotics which
provided a context in which to interpret Purdie's behavior. The
officers who approached Purdie knew he was dangerous, as
evidenced by his previous stabbing of a police officer. Id. at
9
The driver apparently did not give the police his real
name; however, nothing in the record suggests he was arrested.
- 12 -
187, 549 S.E.2d at 38. Purdie also was a known drug dealer.
Id. In the case before us, however, Davis knew nothing about
appellant and had no reason to suspect he faced a situation
involving illegal drugs.
Additionally, the suspects' behaviors were different.
Purdie acted nervously, and he was hunched over as if hiding
something. Id. at 182-83, 549 S.E.2d at 35-36. In contrast,
appellant was cooperative, so much so that Davis left him alone
in the police car. Appellant did not attempt to hide his
chewing nor did he lie when asked what he was chewing. 10
Contrast Mavin v. Commonwealth, 31 Va. App. 161, 165, 521 S.E.2d
784, 786 (1999) (finding probable cause where a defendant denied
knowledge of a prescription bottle with no label that he was
attempting to hide). Although appellant would not spit out the
item in his mouth, that refusal cannot be used as the basis for
probable cause. See Florida v. Bostick, 501 U.S. 429, 437
(1991) ("We have consistently held that a refusal to cooperate,
without more, does not furnish the minimal level of objective
justification needed for a detention or seizure."); United
States v. Burton, 228 F.3d 524, 529 (4th Cir. 2000) (explaining
10
The record does not indicate that the officer questioned
the truth of appellant's statement regarding the dollar bill in
his mouth. While Davis thought it "strange" that appellant was
chewing a dollar, he also explained that subjects frequently
"concealed" drugs in paper money, suggesting he believed the
statement.
- 13 -
that officers cannot use a suspect's refusal to cooperate as
support for reasonable suspicion to conduct a search). See also
State v. Hayes, 51 S.W.3d 190, 194 (Mo. Ct. App. 2001) ("The
withdrawal of consent may no more be used to create reasonable
suspicion of criminal wrongdoing than an initial refusal to
consent to a search.").
Finally, in Purdie, the police had additional illegal and
suspicious behavior to support a finding of probable cause.
They initially attempted to stop the car in which Purdie was a
passenger for illegally tinted windows. 36 Va. App. at 182, 549
S.E.2d at 34. However, the car traveled 300 yards after the
officer activated his lights and siren. Id. at 188, 549 S.E.2d
at 38. Appellant's situation was completely different. The car
in which he was a passenger was not violating the law.
The analysis in Harris v. Commonwealth, 241 Va. 146, 400
S.E.2d 191 (1991), is helpful here. In Harris, officers
received a report from an anonymous informant that the car in
which Harris was a passenger would contain drugs and weapons.
Id. at 147-48, 400 S.E.2d at 192. Prior to stopping the car,
the police observed a lot of movement by its occupants. Id. at
148, 400 S.E.2d at 192. After the car was stopped for an
inoperable brake light and the driver was arrested, Harris
initially refused to get out of the car. Id. During a pat-down
search, police discovered a film canister in Harris's pocket,
which he said contained film. Id. One officer testified that,
- 14 -
based on his experience, "certain people kept their narcotics
and drugs in film canisters." Id. at 154, 400 S.E.2d at 196.
The Supreme Court found this evidence insufficient to
support a finding of probable cause. Id. The Court noted that
film canisters have legitimate uses. Id. The Court also
explained, "At best, [Officer] Von Canon had a 'hunch' and a
report from an informant. However, the record in this case does
not contain any evidence that the informant was reliable or
credible." Id.
Officer Davis had no better information to support his
"hunch" than the officer in Harris had. Appellant was not
associated with any criminal behavior when approached by the
officers. He was cooperative. An initial search found nothing
to create any suspicion. Appellant engaged in unusual behavior,
to be sure, but he did not hide that behavior. Chewing on
dollar bills is not illegal nor are dollars used mostly for
illegal purposes. See Grimstead, 12 Va. App. at 1069, 407
S.E.2d at 49 (finding no probable cause to seize a hemostat in
plain view in an ashtray because "[p]ossession is not per se
unlawful even if [hemostats] may be considered paraphernalia
under certain circumstances" and the officer did not see residue
on the hemostat until after he seized the object).
Additionally, Davis testified only that, in his experience,
people swallow illegal drugs when the context already suggests
drugs are present. However, nothing in this record suggests
- 15 -
Davis had probable cause to believe he faced a situation
involving drugs. While further investigation was appropriate,
the police did not have probable cause to reach into appellant's
pockets. See id.
For the reasons stated above, we find the trial court erred
in failing to grant appellant's motion to suppress.
Accordingly, we reverse the conviction and remand for retrial,
if the Commonwealth is so inclined.
Reversed and
remanded.
- 16 -