COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
CELESTEEN VIOLA YANCEY, S/K/A
CELESTINE V. YANCY
OPINION BY
v. Record No. 0271-98-2 JUDGE RUDOLPH BUMGARDNER, III
AUGUST 31, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
Anthony G. Spencer (C. David Whaley;
Morchower, Luxton & Whaley, on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Celestine V. Yancy appeals her conviction at a bench trial
of possession of cocaine with intent to distribute in violation
of Code § 18.2-248. She argues that the trial court erred in
denying her motion to suppress. We conclude the officers had
probable cause to arrest the defendant, they seized the evidence
lawfully, and the trial court properly denied the motion to
suppress. Accordingly, we affirm the conviction.
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. See Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). This Court does
not substitute its judgment for that of the trier of fact, see
Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220
(1992), and the trial court's judgment will not be set aside
unless plainly wrong or without evidence to support it. See
Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265
(1998). The credibility of the witnesses and the weight to be
accorded their testimony are matters solely for the fact finder
who can accept or reject the testimony in whole or in part. See
Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,
601 (1986).
So viewed, the evidence established that state police
officers were interdicting narcotics traffic at the Amtrak
station in Henrico County. The officers had received
information from New York that two individuals, a male and
female, had purchased one-way tickets to Richmond only ten
minutes before departing. The officers looked for abnormal
behavior by a couple disembarking together the train from New
York. Investigator Irwin saw that the defendant and
codefendant, Quinton L. Hunley, quickly exited the crowded
train, walked side-by-side through the crowd faster than the
other travelers, and always looked straight ahead. Their very
quick pace, lack of conversation, and straight-ahead focus
attracted Irwin’s attention. One officer described the
defendant as "determined to get through the building."
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Irwin followed the two through the terminal and approached
them in the parking lot. Sergeant McLean accompanied him
outside. Hunley carried a brown and gold tote bag at all times.
The defendant carried a leather satchel and a red, white and
blue cloth zippered bag. As they exited the terminal, she
handed Hunley the red, white and blue bag. Irwin identified
himself, announced that he was interdicting narcotics and
firearms traffic into Richmond, and asked if they would
cooperate in the effort. Both said "yes," but the defendant
"became visibly, very visibly afraid or scared at that point.
She was trembling. Her speech was [] very low and somewhat
stumbling." Irwin told the two that he was not arresting or
detaining them but asked if they would be willing to answer some
questions. They indicated they were willing to cooperate.
Irwin first asked if he could see their train ticket
receipts. Hunley looked at the defendant, searched his pockets,
but did not find their tickets. The defendant made no attempt
to search for tickets. The two produced identification when
Irwin asked for it, and the defendant volunteered that they had
arrived from New York. When asked if the bags they were
carrying belonged to them, Hunley stated, "they're our bags."
The two suspects denied carrying drugs or guns. Irwin then
asked consent to search the bags. When the defendant indicated
that she felt he was interfering with her rights, Irwin
reiterated that they were not under arrest. The defendant
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consented to a search but stated, "I really don't want you going
through my bags, but I will show you what's in the bags."
The defendant took the red, white and blue bag back from
Hunley, unzipped it, and started moving the contents around.
McLean saw two shoeboxes for children's hiking boots, which the
defendant indicated were for her children. He also saw a new
pair of boots loose in the bag, but both boxes appeared to have
weight in them despite the fact that one pair was not in its
box. McLean told the defendant that he appreciated her showing
them the contents, but for officers' safety he preferred to
search the bag himself.
The group moved to a less conspicuous location in the
parking lot near a truck when Hunley said he was embarrassed by
being searched in the middle of the lot. The defendant zipped
up the red, white and blue bag, and Hunley carried it and the
brown and gold bag to the truck. As they walked toward it, the
defendant remarked, "they even know what kind of truck we
drive."
Irwin asked permission to pat-down both suspects for
weapons. While a female agent patted down the defendant, Irwin
kneeled down in front of Hunley's brown and gold bag. He looked
up at Hunley while kneeling over the bag and asked if he could
search. The defendant said "yes"; Hunley said, "go for it.
You're just doing your job," with his "head hung down." Irwin
unzipped the brown and gold bag, saw a blanket, moved it aside,
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and saw what appeared to be a garbage bag. He reached into the
tote bag and felt two hard, rectangular objects in the garbage
bag. Irwin pulled out the garbage bag, which was knotted. He
asked permission to untie the knot. Hunley replied, "go for it,
you're just doing your job." Irwin retrieved two six-by-two
inch rectangular blocks wrapped in duct tape from the bag. The
wrapping was consistent with illegal narcotics packaging.
As Irwin held up the two rectangular items found in
defendant's brown and gold bag, Hunley gave a "very deep sigh"
and shook his head. Irwin announced that he believed the bricks
were cocaine. The officers arrested both suspects, handcuffed
them, and escorted them to an office in the station for further
investigation. A field test conducted at the station indicated
that the items were in fact cocaine. At that moment, the
defendant volunteered, "It's mine." One of the shoeboxes in the
red, white and blue bag contained a third brick. The drugs
weighed 6.6 pounds in all.
During the search incident to arrest, the officers
recovered a small amount of currency, a pager, and two train
ticket stubs from New York to Richmond. The ticket stubs were
in Hunley's pocket and were issued in the name of Delores
Russell Anne. Neither Hunley nor the defendant possessed
identification in that name. A cellular telephone, $2,000 in
small bills, and a piece of paper with names and dollar amounts
on it were found in the defendant's leather satchel. An expert
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testified that the cell phone and pager were significant when
found with drugs because drug dealers often use them in making
sales. He also stated that 6.6 pounds of drugs was inconsistent
with personal use and New York was a source city for contraband
entering Richmond.
The defendant contends the trial court improperly denied
her suppression motion because the officers seized the evidence
after an unlawful arrest. She contends there is no evidence
that she was aware of what was in Hunley's brown and gold bag.
She continues that the officers did not have probable cause to
arrest her until they found cocaine in the red, white and blue
bag, but that occurred after she was formally arrested.
Therefore, she concludes the evidence was illegally seized as
the "fruit of the poisonous tree," and her statement claiming to
own the drugs was not admissible. We find this argument without
merit.
The issue of whether the officers had probable cause to
make a warrantless arrest involves questions of both law and
fact and is reviewed de novo on appeal. See McGee v.
Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261
(1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690,
691 (1996)). If the officers had probable cause to arrest, the
subsequent search was lawful. See Chimel v. California, 395
U.S. 752, 763 (1969). In determining whether probable cause
exists, the test is whether at the time of arrest the officers
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had knowledge of sufficient facts and circumstances to warrant a
reasonable man in believing that an offense has been or is being
committed. See Brinegar v. United States, 338 U.S. 160, 175-76
(1949). The Commonwealth must show, based on a totality of
circumstances, "a probability or substantial chance of criminal
activity" to establish probable cause. Ford v. City of Newport
News, 23 Va. App. 137, 143-44, 474 S.E.2d 848, 851 (1996).
"Trained and experienced police officers may be able to perceive
and articulate meaning in given conduct which would be wholly
innocent to the untrained observer." Richards v. Commonwealth,
8 Va. App. 612, 616, 383 S.E.2d 268, 271 (1989).
The defendant acted suspiciously as she and her companion
disembarked the train from New York, a known source for drugs
entering Richmond. The two walked very quickly through the
crowd in a manner that singled them out to the officers. She
became visibly nervous when the officers explained that they
were interdicting narcotics traffic. When asked for their train
ticket stubs, the defendant did nothing as Hunley searched for
them, which indicated she knew he had her ticket stub.
She started carrying the red, white and blue bag but handed
it to Hunley. Both suspects carried that bag. Hunley stated
they jointly possessed the bags: "they're our bags." (Emphasis
added). As the officer stood over the luggage, he asked both
the defendant and Hunley if he could search their bags. They
both consented to the search. The defendant consented to the
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search of both bags: first, the search of the red, white and
blue cloth bag; then, of the brown and gold tote bag. After
consenting to the search, the defendant herself displayed the
contents by moving them around in the bag rather than by
permitting the officers to look for themselves. The officer saw
a loose pair of hiking boots and its box. Despite the fact that
the boots were loose in the bag, the shoebox appeared to have
weight. When the officers agreed to move to another area of the
parking lot, the defendant stated, "they even know what kind of
truck we drive."
The actions and statements of the two permitted an
inference that their trip was a joint enterprise. The demeanor,
statements, and actions of the defendant permitted an inference
that she worried that the police knew they were transporting
drugs. The defendant separately gave the officers consent to
search each bag. That was evidence that she asserted ownership
and dominion over them and claimed at least a joint interest in
both bags. The size and shape of the empty, but weighted,
shoebox, when compared with the size and shape of the bricks of
probable narcotics found in the brown and gold bag, permitted
the inference that the weight in the shoebox might be drugs.
From the accumulated evidence, we hold that the officers
had developed probable cause to believe the defendant was
transporting jointly with Hunley the drugs found in the brown
and gold bag. The trial court properly denied the motion to
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suppress because the officers had probable cause when they
arrested the defendant. Accordingly, we affirm her conviction.
Affirmed.
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Benton, J., dissenting.
Consistent with constitutional standards, a police officer
properly may make a warrantless arrest if the officer has
probable cause to believe an individual has committed a felony.
See United States v. Watson, 423 U.S. 411, 423 (1976). The rule
is also well established, however, that where probable cause is
lacking at the moment of arrest, the arrest is illegal. See
Beck v. Ohio, 379 U.S. 89, 91 (1964). Any evidence seized
pursuant to that illegal arrest must be excluded. See Mapp v.
Ohio, 367 U.S. 643 (1961). See also Ford v. City of Newport
News, 23 Va. App. 137, 145, 474 S.E.2d 848, 852 (1996). As
applicable to this case, the United States Supreme Court has
refined these principles as follows:
Where the standard is probable cause, a
search or seizure of a person must be
supported by probable cause particularized
with respect to that person. This
requirement cannot be undercut or avoided by
simply pointing to the fact that
coincidentally there exists probable cause
to search or seize another or to search the
premises where the person may happen to be.
Ybarra v. Illinois, 444 U.S. 85, 91 (1979).
When the officers arrested Celestine Yancy, the officers
had found packages they suspected to contain drugs in the brown
and gold luggage they had seen Quinton Hunley carry. No
testimony established that Yancy had been carrying that brown
and gold luggage. Prior to arresting Yancy, the officers made
no inquiry to determine whether Yancy or Hunley claimed
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ownership of that piece of luggage. They knew that Hunley
solely had carried the brown and gold luggage from the train to
the parking lot. However, when the officers arrested Yancy, she
had not claimed ownership of the brown and gold luggage. In
addition, Yancy had clearly asserted her possessory interest
only in another piece of luggage -- the red, white and blue
luggage. She opened it for the police, reached into it, and
moved its contents. When the police arrested Yancy, they had
not searched the red, white and blue luggage and, thus, had no
knowledge of its contents.
The officers arrested Yancy because she was with Hunley,
who was carrying the luggage in which they had found the
suspected drugs. Clearly, upon discovering the suspected drugs
in the luggage Hunley carried, the officers had probable cause
to arrest Hunley. However, they lacked the level of information
necessary for probable cause to arrest Yancy. As the Supreme
Court ruled in Ybarra, "a person's mere propinquity to others
suspected of criminal activity does not, without more, give rise
to probable cause to search [or arrest] that person." 444 U.S.
at 91. Although the officers had enough suspicion "to adopt an
intermediate response," such as a Terry detention, Adams v.
Williams, 407 U.S. 143, 145 (1972), they lacked probable cause
to then arrest Yancy. See McMillon v. Commonwealth, 212 Va.
505, 509, 184 S.E.2d 773, 775 (1971) (ruling that "the fact that
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a person consorts with drug addicts does not, of itself, create
probable cause to arrest that person as a narcotics user").
Relying upon a description of the purposeful manner in
which Hunley and Yancy walked through the train station, the
majority opinion concludes that Yancy and Hunley acted
suspiciously as they disembarked the train and left the
terminal. That conduct, however, did not distinguish Yancy and
Hunley from a great majority of the travelling public.
Furthermore, the police officer who stopped them and asked
permission to speak to them testified that their conduct had not
led him to believe Yancy and Hunley were involved in criminal
activity. All of the attendant circumstances, including the
discovery of the suspicious package in the luggage Hunley was
carrying, provided no more than a suspicion concerning Yancy.
Because the arrest was made without probable cause, I would
hold that the trial judge erred in admitting the unlawfully
seized evidence. See id. I dissent.
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