COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Beales
Argued at Chesapeake, Virginia
PERKINS JONES
MEMORANDUM OPINION* BY
v. Record No. 2515-05-1 JUDGE RANDOLPH A. BEALES
JANUARY 30, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Sonya Weaver Roots (Weaver Law Offices, on brief), for appellant.
Michael T. Judge, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Perkins Jones (appellant) was convicted of misdemeanor obstruction of justice under Code
§ 18.2-460(A). He appeals this conviction, arguing first that the officer did not have probable cause
to arrest him and second that the evidence was insufficient to support the conviction. Rather than
provide a transcript of the proceedings in the circuit court, appellant has filed a statement of facts
pursuant to Rule 5A:8(c).
I. Background
On May 23, 2005, Officer Crutcher was in the Portsmouth General District Court when
that court called a case involving appellant, who did not appear. In the officer’s presence, the
court orally ordered that a capias be issued for appellant’s arrest. However, the capias was never
formally issued.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
The next day, Officer Crutcher spotted the appellant outside a home that had a reputation
for being “drug infested.” He watched appellant for fifteen minutes and then approached. The
officer never saw appellant with or near anyone else, although appellant claimed someone was
standing with him. Officer Crutcher arrested appellant by grabbing his left hand and attempting
to put handcuffs on him. As the officer was arresting him, appellant put something in his mouth.
Officer Crutcher, based on his twelve years with the police department and prior narcotics
arrests, believed the “something” was crack cocaine. The officer told appellant to spit out the
item, but appellant swallowed it instead.
When Officer Crutcher checked with dispatch, he discovered that the capias was not
issued. He then arrested appellant for obstruction of justice.
II. Probable Cause for Arrest
Appellant argues that the officer did not see him commit a misdemeanor on May 24,
2005, so he did not have authority under Code § 19.2-81 to arrest him. Code § 19.2-81 states,
“Such officers may arrest, without a warrant, any person who commits any crime in the presence
of the officer and any person whom he has reasonable grounds or probable cause to suspect of
having committed a felony not in his presence.” The Commonwealth argues that Officer
Crutcher had probable cause to arrest appellant based on his observations in the courtroom.1
While appellant did not commit a crime during the time that Officer Crutcher was
observing him on May 24, 2005, the officer did observe that appellant committed a crime the
previous day. On May 23, 2005, Officer Crutcher was in the courtroom when appellant,
although ordered to do so, did not appear before the general district court. The officer heard the
judge orally order that a capias be issued.
1
The parties agree that a valid arrest warrant did not exist on May 24, 2005.
-2-
The officer had sufficient probable cause to arrest appellant and had authority to arrest
him. Failure to appear is a crime in Virginia. See Code §§ 19.2-74, 19.2-128. Whether or not
the evidence would have been sufficient to convict appellant of failure to appear is irrelevant, as
long as the officer had probable cause for the arrest:
An officer has the duty to arrest a person who commits a
misdemeanor in his presence, even though the officer has no arrest
warrant. And an arrest, though warrantless, is valid where the
officer had probable cause to believe that a misdemeanor was
committed in his presence, even though the action he observed did
not in fact constitute a misdemeanor.
Yeatts v. Minton, 211 Va. 402, 405, 177 S.E.2d 646, 648 (1970) (citation omitted). Here, the
officer had sufficient information, based on his own observation and on the pronouncement of
the general district court judge, to believe appellant had committed a misdemeanor in his
presence, i.e., he failed to appear for court. Under Code § 19.2-81, Officer Crutcher had
authority to arrest appellant.
III. Sufficiency
Appellant argues in his brief that the evidence was not sufficient to prove he
“obstruct[ed] Crutcher in the performance of his duties nor did he fail to cease any obstruction.”2
2
The Commonwealth argues on brief that “Jones[’s] ‘no obstruction’ argument is
defaulted because at trial he did not argue his actions did not obstruct the officer by force or
resistance.” According to the statement of facts, however, appellant’s argument to the trial court
was as follows:
The defendant stated again that there was no evidence of
obstruction of justice. . . . Again, the defendant stated that the
officer did not observe any evidence that the defendant possessed
any narcotics. . . . There was no basis for the officer to believe that
the item he saw go into the defendant’s mouth was crack cocaine
especially since the officer admitted that the item could have been
rock candy.
While the argument is not phrased exactly the same on appeal, the essentials of the argument are
the same -- that appellant did not impede Officer Crutcher because appellant had no drugs on
him and, therefore, the officer had nothing to investigate.
-3-
See also Code § 18.2-460(A). Specifically, he contends that, as nothing suggested appellant was
engaged in drug activity, he did not obstruct the officer by placing an item in his mouth while the
officer was arresting him. In reviewing appellant’s claim that the evidence was insufficient to
support a conviction, we consider the record in the light most favorable to the Commonwealth.
See Thomas v. Commonwealth, 44 Va. App. 741, 747, 607 S.E.2d 738, 740-41, aff’d on reh’g
en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).
Appellant refers in his argument to a federal case involving a 42 U.S.C. § 1983 claim,
Rogers v. Pendleton, 249 F.3d 279, 291-92 (4th Cir. 2001). In that case, the Fourth Circuit found
Rogers did not violate Virginia’s obstruction law when he stood in front of the officer who
wanted to search the grounds around his home. The court pointed out that “[Officer] Pendleton
also testified that he simply stepped around Rogers without difficulty and then stood without
interference for a period of time while observing Rogers speaking to [Officer] Vinyard.” Id. at
291. Similarly, in Ruckman v. Commonwealth, 28 Va. App. 428, 505 S.E.2d 388 (1998), this
Court found that Ruckman did not obstruct justice when he simply could not remember
information that would have helped the police. In that case, the defendant did not intend to
impede an investigation – he simply could not help the investigation. Both cases suggest that
passive or unintentional behavior does not constitute obstruction.
Here, in contrast to those two cases, appellant took an affirmative action by placing an
item into his mouth while the officer tried to arrest him. Appellant then refused to spit out the
suspected narcotics that he put into his mouth and actually swallowed the item.3 These actions
taken together were not unintentional or passive. Appellant clearly wanted to prevent the officer
from investigating and collecting the item, and he was successful. Whether the evidence proved
3
Appellant does not argue any Fourth Amendment issues regarding a search of his
mouth.
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that the item was an illegal substance is irrelevant. The officer was performing his duty,
arresting appellant, when appellant decided to ingest an item in one of the hands that the officer
was trying to put in handcuffs. This behavior of appellant, and then his refusal to spit the item
out, obstructed the officer who was performing his duty.
These circumstances are comparable to the facts in United States v. Bedford, 446 F.3d
1320, 1322 (10th Cir. 2006), where the Tenth Circuit upheld an enhancement under the federal
sentencing guidelines based on Bedford’s “obstruction of the administration of justice.” After
his friend purchased some cocaine from an undercover policeman, Bedford swallowed some of
the drug as the police were making a traffic stop of their vehicle. Id. The court found, “Bedford
succeeded in swallowing the cocaine base, at a time when the police had no knowledge that he
was in possession of incriminating evidence” and found he took this act “consciously, rather than
spontaneously or reflexively, with the purpose of obstructing justice.” Id. at 1325. Likewise, in
Mullins v. State, 717 N.E.2d 902 (Ind. Ct. App. 1999), the Indiana Court of Appeals upheld a
conviction for obstruction of justice based on facts very similar to the situation here.4 Mullins
was sitting in a car that was parked in front of a known drug house. Id. at 903. He was talking to
a woman, and the woman was observed dropping “a metal object that looked like a broken
antenna.” Id. When the officer approached, Mullins put a substance “which appeared to be
crack cocaine into his mouth and chew[ed].” Id. Mullins refused to spit the item out and pushed
the officer away. Id. at 904. The court held, “It is clear that Mullins’[s] actions in refusing to
spit the substance out of his mouth after being ordered to do so, and pushing Officer Doughty
away” were sufficient to support the conviction. Id.
4
The Indiana statute outlaws destruction of an item “with intent to prevent it from being
produced or used as evidence in any official proceeding or investigation.” Ind. Code
§ 35-44-3-4(a)(3).
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Here, appellant put an item that looked like crack cocaine into his mouth, while the
officer was arresting him and while standing in front of a reputed drug house that was also
appellant’s former home. Appellant did not keep the item in his mouth. Instead, and despite the
officer’s instructions to spit the item out, appellant swallowed it. By so disobeying the officer’s
instructions, he purposefully destroyed the item so that the officer could not conclude the
investigation. Therefore, based on the totality of the circumstances, appellant is guilty of
obstruction of justice.
IV. Conclusion
We find the officer had probable cause to arrest appellant, and the evidence was sufficient to
convict appellant of obstruction of justice. We, therefore, affirm his conviction.
Affirmed.
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